AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT of EAGLE-PICHER TECHNOLOGIES, LLC
(the "Agreement"), dated as of April 27, 1998, by
Eagle-Picher Industries, Inc., an Ohio corporation.
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Eagle-Picher Industries, Inc. organized on February 19, 1998 a
limited liability company, and now amends and restates the limited liability
company agreement to include the following terms and conditions.
It is agreed as follows:
1. Organization. Eagle-Picher Industries, Inc. hereby organizes a
limited liability company pursuant to the Delaware Limited Liability Company Act
(the "Act") and the provisions of this Agreement and, for that purpose, has
caused a Certificate of Formation (the "Certificate") to be prepared, executed
and filed with the Secretary of State of the State of Delaware ("Secretary of
State") on February 19, 1998. The Company and the Member each hereby approves,
authorizes and ratifies the actions of Xxxxx X. Xxxxxxxxxx, Esq. of Xxxxxx,
Xxxxx & Xxxxx, in filing the Certificate with the Secretary of State.
2. Name. The name of the limited liability company shall be
Eagle-Picher Technologies, LLC (the "Company").
3. Purpose. The purpose of the Company is to engage in any lawful
act or activity for which limited liability companies may be formed under the
Act and to engage in any and all activities necessary or incidental thereto.
4. Principal Office. The Company's principal place of business
shall be located at "C" and Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000. The Company
may have such other business offices within or without the State of Delaware as
determined from time to time.
5. Term. The term of the Company shall begin upon the filing of
the Certificate with the Secretary of State and shall continue until dissolved
in accordance with this Agreement.
6. Member. The sole member of the Company is Eagle-Picher
Industries, Inc., an Ohio corporation (the "Member").
7. Capital Contributions; Capital Accounts. (a) Initial Capital
Contributions. Upon the execution of this Agreement, the Member shall contribute
to the Company all property and assets of its Technologies Division pursuant to
a Xxxx of Sale in substantially the form attached hereto as Exhibit A and an
Assignment and Assumption Agreement in substantially the form attached hereto as
Exhibit B.
(b) Additional Capital Contributions. The Member may from time to
time make additional capital contributions in amounts determined in the sole
discretion of the Member, including capital contributions in accordance with the
Member's cash management system.
(c) All capital, whenever contributed, shall be subject in all
respects to the risks of the business and subordinate in right of payment to the
claims of present or future creditors of the Company and of any successor firm
in accordance with this Agreement.
(d) No interest shall be allowed to the Member by reason of the
amount of its capital contribution or Capital Account except as provided in
Section 21.
8. Allocations. Except as provided in Section 20, each item of
income, gain, loss or expense of the Company for any period shall be allocated
to the Member.
9. Distributions. The Company shall distribute to the Member,
each business day, all cash received by the Company since the last such
distribution.
10. Management; Director Voting and Meetings. (a) The Member
hereby delegates the management of the property, business and affairs of the
Company to its Board of Directors (the "Board"). The Board shall have the
authority and responsibility of a Board of Directors under the General
Corporation Law of the State of Delaware, including the authority to appoint
officers of the Company and to define the scope of duties for such officers.
(b) The Board shall be composed of (i) at least two individuals
who have no prior relationship with the Company or its Affiliates (the "Outside
Directors"), except as otherwise allowed by the United States Department of
Defense (the "DoD"), (ii) at least one individual who shall be designated by,
and represent, the Member (the "Inside Director"), and (iii) one or more
officers of the Company having DoD personnel security clearance at the level of
security clearance of the Company's facility at which such officer is employed
(the "Officer Director"). The number of Inside Directors shall not exceed the
combined total of Outside Directors and Officer Directors.
(c) The initial Board shall consist of the following persons each
of which shall be the type of Director set forth beside such Director's name:
Director Type of Director
-------- ----------------
Xx. Xxxx X. Xxxxxxxx Outside
Xxxx X. Xxxxxxxxx Outside
Xxxxxxx Xxxxxxxxxxxx Inside
Xxxx X. Xxxxx Inside
Xxxxxxx X. Xxxx Officer
The term "Affiliates" shall mean, with respect to any person, all entities which
such person controls, or by which such person is controlled.
(d) The Board hereby creates the following officers and delegates
the following duties to each such officer:
(i) Chairman of the Board of Directors. The Chairman of
the Board, if any, shall preside at all meetings of the Board of
Directors at which he shall be present. He shall have and may exercise
such powers as are, from time to time, assigned to him by the Board and
as may be provided by law. The Chairman of the Board must comply with the
requirement of Section 1.01 of the Special Security Agreement.
(ii) President and Chief Executive Officer. The President
shall be the chief executive officer and shall have general charge and
supervision of the business of the Company; and, in general, he shall
perform all duties incident to the office of the president of a company,
and such other duties as, from time to time, may be assigned to him by
the Board or as may be provided by law.
(iii) Vice President. The Vice-President or
Vice-Presidents, at the request of the President or in his absence or
during his inability to act, shall perform the duties of the President,
and when so acting shall have the powers of the President. If there be
more than one Vice-President, the Board of Directors may determine which
one or more of the Vice-Presidents shall perform any of such duties; or
if such determination is not made by the Board, the President may make
such determination; otherwise any of the Vice-Presidents may perform any
of such duties. The Vice-President or Vice-Presidents shall have such
other powers and perform such other duties as may be assigned to him or
them by the Board or the President or as may be provided by law.
(iv) Secretary. The Secretary shall record all the
proceedings of the meetings of the Board of Directors and its committees,
if any, in a book to be kept for that purpose; he shall see that all
notices are duly given in accordance with the provisions of this
Agreement or as required by law; he shall be custodian of the records of
the Company; [he may affix the company seal to any document the execution
of which, on behalf of the Company, is duly authorized, and when so
affixed may attest the same;] and, in general, he shall perform all
duties incident to the office of secretary of a company, and such other
duties as, from time to time, may be assigned to him by the Board or the
President or as may be provided by law.
(v) Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Company, and shall deposit or cause to be deposited, in the name of the
Company, all monies or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected
by or under authority of the Board of Directors; if required by the
Board, he shall give a bond for the faithful discharge of his duties,
with such surety or sureties as the Board may determine; he shall keep or
cause to be kept full and accurate records of all receipts and
disbursements in
books of the Company and shall render to the President and to the Board,
whenever requested, an account of the financial condition of the
Company, and such other duties as may be assigned to him the Board or
the President or as may be provided by law.
The Board may create such other officers from time to time and delegate such
duties as it deems appropriate. The Board shall elect directors to hold office
for one year or until such officers' successors are elected.
(e) Except where (i) the Member's or the Board's approval is
expressly required by this Agreement or by the Act or (ii) authority has been
expressly vested in the GS Committee (as defined below) by this Agreement or the
Department of Defense Special Security Agreement (DD Form 4411), as may be
amended (the "Special Security Agreement"), the Board shall have full authority,
power and discretion to make all decisions with respect to the Company's
business and to perform such other services and activities as set forth in this
Agreement.
(f) Except as otherwise expressly provided in this Agreement or
the Act, the Member, solely by reason of being a member of the Company, shall
not have the right to control or manage, or take any part in the control or
management of, the property, business or affairs of the Company.
(g) The Board may hold meetings either within or without the
State of Delaware. Meetings of the Board may be held without notice at such time
and at such place as may from time to time be determined by the Board. A quorum
must be present at each meeting of the Board. A majority in number of the Board
shall be necessary to constitute a quorum; provided, however, that at least one
Outside Director and one Inside Director must be in attendance in order for
there to be a quorum present at any meeting of the Board. The Directors shall
approve actions to be taken by the Board by a vote of a majority in number of
Directors at a meeting at which a quorum is present; provided that any matter
involving the Special Securities Agreement or any contract or other arrangement
intended to be covered by the protections set forth in the Special Security
Agreement that comes before the Board shall require at least one Outside
Director's favorable vote as part of a majority.
(h) Notwithstanding anything set forth in this Agreement, in
addition to the affirmative vote of the Board, the prior written consent of the
Member shall be required to approve each of the following:
(i) the sale, exchange, lease, mortgage, pledge or other
transfer or disposition of any property or assets of the Company, other
than in the ordinary course of business;
(ii) the entry into any agreement to borrow money or to
grant a mortgage on, a security interest in, a pledge or otherwise
encumbers, any asset of the Company, other than in the ordinary course
of business;
(iii) the merger or consolidation of the Company with or
into another limited liability company, foreign limited liability
company or other entity;
(iv) the authorization for a confession of judgment
against the Company;
(v) the assignment for the benefit of creditors of the
Company, filing of a voluntary bankruptcy petition, or consent to an
involuntary petition, under Title 11 of the United States Code or the
reorganization, dissolution or liquidation of the Company;
(vi) the amendment of the Certificate; or
(vii) the initiation of action to terminate the Company or
the Special Security Agreement (except as provided in Section 13.02 of
the Special Security Agreement).
(i) Notwithstanding anything set forth in this Agreement, the
Member is hereby authorized, without the consent of the Board, to adopt the
resolutions set forth in Exhibit C hereto.
(j) In lieu of holding a meeting, the Directors may vote or
otherwise take action by a written instrument indicating the consent of the
requisite number and type (as provided in Section 10(g) above) of the Directors
as would be required for the Directors to take action under this Agreement. If
such consent is not unanimous, prompt notice shall be given to those Directors
who have not consented in writing but who would have been entitled to vote
thereon had such action been taken at a meeting.
(k) Directors may participate in a meeting by conference
telephone or similar communications equipment, by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting (as provided in Section 10(g)
above).
(l) The removal of any Director or the President and the
appointment of new or replacement Directors (other than Insider Directors) or a
new or replacement President shall be in compliance with Section 1.01 of the
Special Security Agreement.
11. Committees. (a) Government Security Committee. (i) There is
hereby established a permanent committee of the Board to be known as the
Government Security Committee (the "GS Committee"). The Committee shall consist
of all Outside Directors and Officer Directors. The purpose of the GS Committee
is to assure that (x) the Company maintains policies and practices to safeguard
classified information and controlled unclassified information in the possession
of the Company consistent with the terms of the Special Security Agreement and
(y) the protective measures contained in the Special Security Agreement are
implemented effectively and maintained throughout the duration of such
agreement. Each Director that is a member of the GS Committee shall be cleared
to the level of the facility security clearance of the Company and shall be
specifically approved for this function by the United States Defense Security
Service ("DSS"). One Outside Director shall be designated as Chairman of the GS
Committee.
(ii) The GS Committee may hold meetings either within or
without the State of Delaware. Meetings of the GS Committee may be held
without notice at such time and at such place as may from time to time
be determined by the GS Committee. A quorum must be present at each
meeting of the GS Committee. A majority in number of the members of GS
Committee shall be necessary to constitute a quorum. In lieu of holding
a meeting, the members of the GS Committee may vote or otherwise take
action by a written instrument indicating the consent of the requisite
number of the Directors as would be required for the GS Committee to
take action under this Agreement or the Special Security Agreement, as
applicable. If such consent is not unanimous, prompt notice shall be
given to those Directors on the GS Committee who have not consented in
writing but who would have been entitled to vote thereon had such action
been taken at a meeting. The members of the GS Committee may participate
in a meeting by conference telephone or similar communications
equipment, by means of which all persons participating in the meeting
can hear each other, and such participation shall constitute presence in
person at such meeting.
(iii) One Officer Director that is a member of the GS
Committee shall be designated by the GS Committee to assure that all
records, journals and minutes of the GS Committee are maintained and
readily available for inspection by the DSS.
(b) Compensation Committee. The Board shall establish a permanent
committee of the Board, consisting of at least one Outside Director and one
Inside Director, to be known as the Compensation Committee. The Compensation
Committee shall be responsible for reviewing and approving recommendations for
the annual compensation of the Company's principal officers, pursuant to the
Special Security Agreement.
(c) Other Committees. The Board may designate other standing
committees of the Board; provided, that all such additional committees shall be
created and shall operate in compliance with the terms of the Special Security
Agreement.
12. Compliance with Special Security Agreement. THE COMPANY, THE
MEMBER, AND THE DIRECTORS AND THE OFFICERS SHALL COMPLY IN ALL RESPECTS WITH THE
TERMS, RESTRICTIONS, LIMITATIONS AND PROVISIONS OF, AND IN NO WAY VIOLATE, THE
SPECIAL SECURITY AGREEMENT, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT D. In
the case of any conflict, as to the management of the Company, between the terms
of this Agreement and the terms of the Special Security Agreement, the terms of
the Special Security Agreement shall govern. All notices to be provided and
consents to be obtained by the Company, the Member, any Director or the
President pursuant to the Special Security Agreement shall be provided or
obtained, as the case may be, in accordance with the Special Security Agreement.
13. Assignments. The Member may not sell, assign or otherwise
transfer in whole or in part its membership interest in the Company without the
affirmative vote or written consent of the GS Committee, which vote or consent
may be withheld in its sole discretion. Any sale, assignment or other transfer
that is not in compliance with this Section shall be null and void.
14. Withdrawal. The Member may not withdraw from the Company
without the affirmative vote or written consent of the GS Committee, which vote
or consent may be withheld in their sole discretion. Until such withdrawal
becomes effective, the Member shall in all respects continue to be a member
hereunder.
15. Admission of an Additional Member. One or more additional
members of the Company may be admitted to the Company at any time or from time
to time with the affirmative vote of (x) the Member and (y) all members of the
GS Committee. Upon the admission of an additional member, this Agreement shall
be amended and restated as agreed by the Member, such additional member and the
Board. Each new member will be required to execute an agreement pursuant to
which such member becomes bound by the terms of this Agreement and the Special
Security Agreement.
16. Events of Dissolution. (a) The Company shall be dissolved
upon the happening of any of the following events:
(i) the written consent of the Member;
(ii) at any time there are no members; or
(iii) the entry of a decree of judicial dissolution under
Section 802 of the Delaware Act.
(b) The resignation or bankruptcy of any member or the occurrence
of any other event that terminates the continued membership of any member shall
not cause the Company to be dissolved or its affairs to be wound up, and upon
the occurrence of any such event, the Company shall be continued without
dissolution, unless such event results in the Company having no members.
17. Liability of Member. The Member shall not have any liability
(personal or otherwise) for the obligations or liabilities of the Company except
to the extent provided in the Act.
18. Exculpation of the Directors and Officers. None of the
Directors or the officers shall have liability (personal or otherwise) to the
Company or the Member for damages for any breach of duty in such capacity;
provided that nothing in this Section shall eliminate or limit the liability of
the Directors or the officers if a judgment or other final adjudication adverse
to any such Director or officer establishes that his acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that he personally gained in fact a financial profit or other advantage to which
such Director or officer was not legally entitled or that with respect to a
distribution to the Member the acts of such Director or officer were not
performed in accordance with the Act.
19. Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless the Directors, the officers and the
Member and their respective directors, trustees, shareholders, officers,
employees and agents (collectively, the "Indemnitees"), from and against any and
all costs, liabilities, claims, expenses, including reasonable attorneys' fees,
and damages (collectively, "Losses") paid or incurred by any such Indemnitee in
connection with the conduct of the Company's business in accordance with this
Agreement and the Act, except that no Indemnitee shall be entitled to
indemnification in respect of any Loss incurred by such Indemnitee by reason of
such Indemnitee's gross negligence or willful misconduct. Any indemnity under
this Section shall be provided out of and to the extent of Company assets only
and the Member shall not have any personal liability on account thereof. All
rights of an Indemnitee under this Section shall survive the dissolution of the
Company and the withdrawal of the Indemnitee from membership in the Company and
shall inure to the benefit of such Indemnitee's heirs, personal representatives,
successors and assigns.
20. Liquidation. (a) Upon dissolution of the Company, a person
selected by the Member shall be the liquidator of the Company (the
"Liquidator"). The Liquidator shall liquidate the assets of the Company and
apply and distribute the proceeds of such liquidation in the following order of
priority, unless otherwise required by mandatory provisions of applicable law:
(i) to creditors of the Company (other than the Member);
and
(ii) the balance to the Member;
provided, however, that the Liquidator may place in escrow a reserve of cash or
other assets of the Company for contingent liabilities in an amount determined
by the Liquidator to be appropriate for such purposes.
21. Tax Matters. The Member and the Company intend that the
Company be treated as an entity with a single owner electing to be disregarded
as a separate entity for United States federal income tax purposes, and all
applicable state and local income tax purposes, and will file such necessary and
appropriate forms in furtherance thereof. The Company's fiscal and taxable year
will end on November 30 of each year; provided, however, if either the fiscal or
taxable year of the Member is changed such that it shall end on a date other
than November 30, the fiscal or taxable year, as the case may be, of the Company
shall be changed so as to be consistent with the fiscal or taxable year of the
Member. The Member, or its authorized agent, shall be the only person authorized
to prepare, execute and file tax returns and tax reports on behalf of the
Company and to represent the Company before the Internal Revenue Service and any
state or local taxing authority.
22. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (other than the
conflicts of law rules), all rights and remedies being governed by said laws.
23. Amendments. Except as otherwise provided by this Agreement or
the Act, this Agreement may be amended by the Member; provided, however, that no
provision of Sections 10, 11, 12, 13, 14 or 15 shall be amended without the
consent of all members of the GS Committee.
24. Power of Attorney. The Member hereby constitutes and appoints
the President or, if a Liquidator shall have been selected pursuant to Section
20, the Liquidator, as the Member's true and lawful agent and attorney in fact
("Agent"), with full power of substitution, with
full power and authority in the Member's name, place and stead to execute,
acknowledge, deliver and file all such documents which the Agent deems necessary
or appropriate (i) to continue the existence or qualification of the Company as
a limited liability company under the laws of any state or jurisdiction, (ii) to
reflect amendments to this Agreement or the Certificate made pursuant hereto,
(iii) to reflect the dissolution or liquidation of the Company pursuant to the
terms hereof, or (iv) to reflect the admission, withdrawal or expulsion of any
member pursuant to the terms hereof. The foregoing power of attorney is hereby
declared irrevocable and a power coupled with an interest and shall extend to
each Member's successors and assigns, heirs or representatives.
25. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF, the Member has executed this Agreement.
EAGLE-PICHER INDUSTRIES, INC.
By: /s/ XXXXXXX XXXXXXXXXXXX
___________________________________
Xxxxxxx Xxxxxxxxxxxx, President and
Chief Executive Officer
