EXHIBIT 3.14
LIMITED LIABILITY COMPANY AGREEMENT
OF
ALLIANT AMMUNITION SYSTEMS COMPANY LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT made and entered into
as of this 3rd day of November, 1999 by Alliant Conventional Munitions LLC
("ACM");
WITNESSETH THAT:
WHEREAS, the Delaware Limited Liability Company Act, as
amended (the "Act"), permits the formation of a limited liability company with a
single member; and
WHEREAS, the undersigned has caused the formation of Alliant
Ammunition Systems Company LLC, a Delaware limited liability company (the
"Company"), of which the undersigned constitutes the sole member.
NOW, THEREFORE, the undersigned hereby adopts the following
Articles, which shall constitute the "limited liability company agreement" of
the Company within the meaning of Section 18-101(7) of the Act.
Article I.
GENERAL
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Section 1.1. RATIFICATION OF CERTIFICATE OF FORMATION, ETC.
The Member hereby adopts, approves and ratifies the execution and filing in the
office of the Secretary of State of the State of Delaware of the certificate of
formation of the Company by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Certificate of Formation")
and acknowledges, approves and ratifies his designation as an "authorized
person" of the Company in the Certificate of Formation as contemplated by
Section 18-201(a) of the Act. This Agreement shall be effective as of the date
of filing of the Certificate of Formation in the office of the Secretary of
State, and the Act shall govern the rights, duties and obligations of the
Member, except as otherwise expressly stated herein.
Section 1.2. NAME. The name of the Company shall be, and the
business of the Company shall be conducted under the name of, "Alliant
Ammunition Systems Company LLC."
Section 1.3. PRINCIPAL PLACE OF BUSINESS. The location of the
principal place of business of the Company shall be the Twin Cities Army
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place as
the Board of Managers may from time to time determine (the "Principal Office").
Section 1.4. NAME AND ADDRESS OF MEMBER. The name and address
of the Member are as set forth in Schedule A. The Secretary of the Company shall
maintain a Unit Transfer Record at the Principal Office of the Company. If the
Units held by the Member are
transferred as permitted in Section 4.2, the Secretary shall enter the name and
address of the new Member in the Unit Transfer Record.
Section 1.5. TERM OF EXISTENCE. The Company shall be formed as
of the time of the filing of the Certificate of Formation in the Office of the
Secretary of State of Delaware and its existence shall be perpetual, unless
earlier terminated, dissolved or liquidated in accordance with the provisions of
this Agreement.
Section 1.6. AGENT FOR SERVICE OF PROCESS. The name and
address of the agent for service of process is, until changed by the Board of
Managers, The Corporation Trust Company, located at Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 1.7. DUTIES OF MANAGERS. Each Manager shall owe duties
of care and loyalty to the Company and the Member. A Manager shall not be
personally liable to the Company or the Member for monetary damages for breach
of fiduciary duty as a Manager, except (a) for any breach of the Manager's duty
of loyalty to the Company or the Member; (b) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law; or
(c) for any transaction from which such Manager derived an improper personal
benefit. No amendment to or repeal of the preceding sentence shall apply to or
have any effect on the liability or alleged liability of any Manager for or with
respect to acts or omissions of such Manager occurring prior to such amendment
or repeal.
Article II.
DEFINITIONS
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Unless the context otherwise specifies or requires, the terms
defined in this Article II shall, for the purposes of this Agreement, have the
meanings herein specified. Certain other capitalized terms used herein are
defined elsewhere in the Agreement.
"ACT" is defined in the introduction to Article I.
"AGREEMENT" means this Limited Liability Company Agreement, as
it may be amended or supplemented from time to time.
"ACM" is defined in the introduction to Article I.
"BOARD OF MANAGERS" means the Board of Managers of the Company
established pursuant to Article VI.
"CAPITAL CONTRIBUTION" means the amount of money or the fair
market value of any property contributed to the Company by the Member pursuant
to Section 14.1.
"CODE" means the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder. All references in this
Agreement to a section of the Code
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or the Treasury Regulations shall be considered to include any subsequent
amendment or replacement of that section.
"COMPANY" means Alliant Ammunition Systems Company LLC, the
Delaware limited liability company formed pursuant to the filing of the
Certificate of Formation in Delaware and the terms of this Agreement.
"COMPANY ASSETS" means all assets and property, whether
tangible or intangible and whether real, personal or mixed, at any time owned by
the Company.
"INDEMNITEE" is defined in Section 8.1.
"MANAGER" or "MANAGERS" means the Person or Persons appointed
to the Board of Managers pursuant to Section 6.2.
"MEMBER" means ACM or any other Person who becomes the Member
as permitted by Article IV.
"NAMED OFFICERS" is defined in Section 7.1.
"PERSON" means any natural person, corporation, limited
liability company, association, partnership (whether general or limited), joint
venture, proprietorship, governmental agency, trust, estate, association,
custodian, nominee or any other individual or entity, whether acting in an
individual, fiduciary, representative or other capacity.
"PRINCIPAL OFFICE" is defined in Section 1.3.
"TREASURY REGULATIONS" or "TREAS. REG." refers to the
regulations promulgated by the United States Treasury Department under the Code.
"UNITS" means the interest of the Member in the Company, which
Units represent the ownership interest of the Member in the Company.
Article III.
PURPOSE AND CHARACTER OF THE BUSINESS
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The purpose and character of the business of the Company shall
be to undertake and carry on any lawful business, purpose or activity permitted
under the Act.
Article IV.
MEMBERS; UNITS; DISTRIBUTIONS
-----------------------------
Section 4.1. INITIAL SOLE MEMBER. ACM shall be the initial
Member of the Company and shall have all of the rights, powers and privileges of
a member under the Act. ACM initially shall hold the number of Units set forth
in Schedule A to this Agreement as
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originally executed, which are issued in exchange for the capital contribution
set forth in said Schedule A, the receipt and sufficiency of which are hereby
acknowledged.
Section 4.2. SUCCESSOR SOLE MEMBERS. ACM or any successor
Member may transfer all, but not less than all, of the Units then held by it to
another Person by means of a written instrument in form and substance reasonably
satisfactory to the Board of Managers. Upon such transfer, the transferee shall
become the Member of the Company for all purposes of this Agreement and the Act.
Upon such transfer, the name and address of the new Member, the number of Units
held by such Member, and the capital contribution attributed to such Member
(which shall be the capital contribution attributed to the predecessor Member
immediately prior to such transfer) shall be entered by the Secretary on the
Unit Transfer Record.
Section 4.3. ISSUANCE OF ADDITIONAL UNITS. The Board of
Managers is authorized to cause to be issued to the Member additional Units as
may be determined from time to time by the Board of Managers. Units may be
issued for any consideration, including, without limitation, cash or other
property, tangible or intangible, received or to be received by the Company or
services rendered or to be rendered to the Company, or for no consideration. At
the time of authorization of the issuance of additional Units, the Board of
Managers shall state, by resolution, its determination of the fair value to the
Company in monetary terms of any consideration other than cash for which Units
are to be issued. Upon such issuance, the Secretary shall make the Unit Transfer
Record reflect the issuance of such additional Units and the receipt of the
capital contribution, if any, therefor.
Section 4.4. DISTRIBUTIONS TO MEMBER. Subject to any
restrictions imposed by the Act (including but not limited to Section 18-607),
the Board of Managers may authorize and cause the Company to make distributions
to the Member whenever, and in such amounts or forms as, in its opinion, are
deemed advisable.
Article V.
ADDITIONAL MEMBERS
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The Company shall not have more than one Member at any one
time unless this Agreement is amended to make provision therefor.
Article VI.
MANAGEMENT AND OPERATION OF COMPANY BUSINESS
---------------------------------------------
Section 6.1. BOARD OF MANAGERS. The business and affairs of
the Company shall be managed by or under the authority of the Board of Managers,
except as otherwise required by the Act or this Agreement. The Managers, for and
on behalf of the Company, shall have full power and authority, in addition to
such powers and authorities as may be provided by law or elsewhere in this
Agreement, at the expense of the Company (by direct payment or reimbursement):
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(a) to make, renew, amend, and cancel leases and other
occupancy, use, easement, and license agreements as to all or any part of the
Company property for such price or consideration, and on such terms, covenants,
and conditions as they deem advisable;
(b) to sell, exchange, assign, transfer, or convey and
otherwise dispose of or deal with all or any part of the Company property for
such price or consideration as they deem advisable;
(c) to borrow money, and as security therefor to mortgage or
otherwise hypothecate all or any part of the Company property, both real and
personal; to prepay in whole or in part, or refinance, recast, increase, modify,
renew or extend any such mortgage or secured loan, to agree to repay any loan
over a term extending longer than the stated term or extended term of the
Company; to execute mortgage notes, mortgages, collateral assignments of rents
and leases, tax and insurance escrow agreements, and do all such other things in
such form and manner as may be required by any lender; to assign and convey
Company property to a nominee for the purpose of mortgage financing and to
reacquire the Company property from such nominee;
(d) to build upon, remodel, add on, demolish, rebuild and
otherwise alter or improve any Company property and any structures and
improvements thereon;
(e) to purchase, lease, or otherwise acquire the ownership
or possession of real property, whether improved or unimproved;
(f) to employ from time to time persons, firms, or
corporations for the operation and management of the Company business or
property; and
(g) to do all other things and acts, though not expressly
authorized, as may be reasonably necessary, advisable, or incidental to
effectuate any of the foregoing, and to make, execute, and deliver such
instruments and documents as may be necessary, advisable, or incidental to carry
out the foregoing.
Section 6.2. NUMBER, QUALIFICATION; TERM OF OFFICE; VOTE. The
number of members of the initial Board of Managers shall be that number of
persons named as members of the initial Board of Managers in Section 6.3. Each
Manager shall be appointed from time to time by the sole Member. A Manager shall
hold office until such Manager's successor shall have been elected, or until the
earlier death, resignation, removal or disqualification of such Manager. The
Member may increase or decrease the number of Managers at any time or from time
to time. At any time at which there is more than one Manager, each Manager shall
have one vote on all matters to come before the Board of Managers. The
provisions of Sections 6.4 through 6.10 apply (i) when more than one Manager is
serving and (ii) with respect to any committee established by the Board of
Managers except with respect to the committee quorum requirement specified in
Section 6.14(b).
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Section 6.3. INITIAL BOARD. The initial Board of Managers
shall be comprised of the following individuals:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Section 6.4. PLACE OF MEETINGS. Meetings of the Board of
Managers shall be held at the principal executive office of the Company or at
such other place as may be agreed by the Managers from time to time.
Section 6.5. CALLING OF MEETINGS. A meeting of the Board of
Managers may be called for any purpose or purposes at any time by the Chairman
or any other Manager or by the Member.
Section 6.6. ADJOURNMENTS. Any meeting of the Board of
Managers may be adjourned from time to time to another date, time and place. If
any meeting of the Board of Managers is so adjourned, no notice as to such
adjourned meeting need be given if the date, time and place at which the meeting
will be reconvened are announced at the time of adjournment.
Section 6.7. NOTICE OF MEETINGS. Unless otherwise required by
law, written or oral notice of each meeting of the Board of Managers, stating
the date, time and place, shall be given at least 24 hours prior to the meeting
to every member of the Board of Managers; provided, that a meeting may be called
on such shorter notice as the person calling such meeting may deem necessary or
appropriate in the circumstances. A member of the Board of Managers may waive
notice of the date, time, and place of a meeting of the Board of Managers. A
waiver of notice is effective whether given before, at or after the meeting, and
whether given in writing, orally or by attendance. Attendance by a member of the
Board of Managers at a meeting is a waiver of notice of that meeting, unless the
member objects at the beginning of the meeting to the transaction of business
because the meeting is not lawfully called or convened, or objects before a vote
on an item of business because the item may not lawfully be considered at that
meeting and does not participate in the consideration of the item at that
meeting.
Section 6.8. QUORUM. Members of the Board of Managers
representing one-third of all votes held by the members of the Board of Managers
shall constitute a quorum for the transaction of business at each meeting of the
Board of Managers.
Section 6.9. ABSENT MEMBERS. A member of the Board of Managers
may give advance written consent or opposition to a proposal to be acted on at a
meeting of the Board of Managers. If such member is not present at the meeting,
such consent or opposition to a proposal does not constitute presence for
purposes of determining the existence of a quorum, but
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such consent or opposition shall be counted as a vote in favor of or against the
proposal and shall be entered in the minutes or other record of action at the
meeting, if the proposal acted on at the meeting is substantially the same or
has substantially the same effect as the proposal to which the member has
consented or objected.
Section 6.10. CONFERENCE COMMUNICATIONS. Any or all of the
members of the Board of Managers may participate in any meeting of the Board of
Managers, or of any duly constituted committee thereof, by any means of
communication through which such members may simultaneously hear each other
during such meeting. For the purposes of establishing a quorum and taking any
action at the meeting, members of the Board of Managers participating pursuant
to this Section 6.10 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
Section 6.11. REMOVAL. Any Manager may be removed from office
at any time, with or without cause, by the action of the Member.
Section 6.12. ACTS OF MANAGERS. Except as otherwise provided
herein or in applicable law, the Board of Managers shall take action by the
affirmative vote of (i) the sole Manager or (ii) a majority of the Managers
present at a meeting at which a quorum is present, as the case may be, and any
such act shall be deemed to be the action of the Board of Managers for all
purposes of this Agreement and the Act.
Section 6.13. WRITTEN ACTION. Any action which might be taken
by the sole Manager or at a meeting of the Board of Managers, or any duly
constituted committee thereof, may be taken without a meeting if done in writing
and signed by, as the case may be, the sole Manager or a majority of the members
of the Board of Managers or of such committee members.
Section 6.14. COMMITTEES.
(a) A resolution approved by the Board of Managers may
establish committees having the authority of the Board of Managers in the
management of the business of the Company to the extent provided in the
resolution. A committee shall consist of one or more Persons, who need not be
members of the Board of Managers. Committees are subject to the direction and
control of, and vacancies in the membership thereof shall be filled by, the
Board of Managers.
(b) A majority of the members of a committee present at a
meeting is a quorum for the transaction of business, unless a larger or smaller
proportion or number is provided in the resolution of the Board of Managers
creating the committee.
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Article VII.
OFFICERS
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Section 7.1. NUMBER. The officers of the Company, all of whom
shall be natural persons, shall consist of a Chairman, a President, one or more
Vice Presidents, if elected, a Secretary and a Treasurer ("Named Officers"), and
any other officers and agents as the Board of Managers may designate from time
to time. Any person may hold two or more offices.
Section 7.2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS.
Officers may be elected from time to time by the Board of Managers. Each of the
Chairman and the President shall have the power to appoint officers, other than
the Chairman, President, Secretary and Treasurer. The term of each officer
elected by the Board of Managers shall be until their successor is elected and
qualified unless sooner terminated as provided in this Agreement or by law, or
until their office is eliminated by amendment of this Agreement, in the case of
the Named Officers, or by action of the Board of Managers, in the case of
officers other than the Named Officers. The term of each officer appointed by
the Chairman or the President shall be until terminated as provided in this
Agreement or by law, or until their office is eliminated by amendment of this
Agreement, in the case of the Named Officers, or by action of the Board of
Managers, in the case of officers other than the Named Officers. The term of an
officer who is a Manager shall not be affected by the termination of the
officer's Managership.
Section 7.3. REMOVAL AND VACANCIES. Any officer may be removed
from his or her office with or without cause by action of the Board of Managers;
and any officer appointed by either the Chairman or the President may also be
removed from his or her office with or without cause by action of either the
Chairman or the President. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. A vacancy among the officers
by death, resignation, removal or otherwise shall be filled for the unexpired
term by the Board of Managers, unless such office is eliminated.
Section 7.4. CHAIRMAN. The Chairman shall preside at all
meetings of the Member and Managers and shall have such other duties as may be
prescribed, from time to time, by the Board of Managers. The Chairman shall be a
Manager and shall be elected by the Board of Managers. The initial Chairman
shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
Section 7.5. PRESIDENT.
(a) DAY-TO-DAY OPERATIONS. The Company shall be managed by a
President. The Board of Managers delegates to the President the authority to
oversee and supervise the Company's business. Except as otherwise provided in
this Agreement, the President shall be authorized to determine all questions
relating to the day-to-day conduct, operation and management of the business of
the Company. The President shall be responsible to the Board of Managers.
(b) GENERAL. The President shall be entitled to delegate such
part of his or her duties as he or she may deem reasonable or necessary in the
conduct of the business of the Company to one or more employees of the Company,
who shall each have such duties and authority as shall be determined from time
to time by the President or as may be set forth in any agreement between such
employee and the Company.
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(c) ELECTION. The President shall be elected by the Board of
Managers and shall receive such compensation as may be determined from time to
time by the Board of Managers or as shall be set forth in a written agreement
approved by the Board of Managers. The initial President shall be ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
Section 7.6. SECRETARY. The Secretary shall be secretary of
and shall attend all meetings of the Member and Board of Managers and shall
record all proceedings of such meetings in the minute book of the Company. He or
she shall give proper notice of meetings of Member and the Board of Managers. He
or she shall perform such other duties as may from time to time be prescribed by
the Board of Managers. The initial Secretary shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
Section 7.7. TREASURER. The Treasurer shall keep or cause to
be kept accurate accounts of all moneys of the Company received or disbursed. He
or she shall deposit or cause to be deposited all moneys, drafts and checks in
the name of and to the credit of the Company in such banks and depositories as
the Board of Managers shall from time to time designate. He or she shall have
power to endorse or cause to be endorsed for deposit or collection all notes,
checks and drafts received by the Company. He or she shall disburse or cause to
be disbursed the funds of the Company as ordered by the President, making proper
vouchers therefor. He or she shall render to the Board of Managers whenever
required an account of all his or her transactions as Treasurer and of the
financial condition of the Company and shall perform such other duties as may
from time to time be prescribed by the Board of Managers. The initial Treasurer
shall be ▇▇▇▇ ▇. Holiday.
Section 7.8. DUTIES OF OTHER OFFICERS. The duties of such
other officers and agents as the Board of Managers may designate, or as the
Chairman or the President may appoint, shall be as set forth in a resolution
approved by the Board of Managers or as determined from time to time by the
Chairman or the President. Initially, the Company shall have three (3) Vice
Presidents who shall be ▇▇▇▇ ▇. Holiday, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇. Such Vice Presidents shall have such duties as are determined from time
to time by the President.
Section 7.9. COMPENSATION. The officers, agents and employees
of the Company other than the President shall receive such compensation for
their services as may be determined from time to time by the Board of Managers
or the President or as shall be set forth in a written agreement approved by the
Board of Managers or the President.
Article VIII.
INDEMNIFICATION
----------------
Section 8.1. INDEMNIFICATION.
(a) To the fullest extent permitted by law, each Manager and
Named Officer (individually, an "Indemnitee") shall be indemnified, held
harmless and defended by the Company from and against any and all losses,
claims, damages, liabilities, whether joint or several, expenses (including
legal fees and expenses), judgments, fines and other amounts paid in
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settlement, incurred or suffered by such Indemnitee, as a party or otherwise, in
connection with any threatened, pending or completed claim, demand, action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal, arising out of or in connection with the business or
the operation of the Company and by reason of the Indemnitee's status as a
Manager or Named Officer regardless of whether the Indemnitee continues to be a
Manager or Named Officer of the Company at the time any such loss, claim,
damage, liability or other expense is paid or incurred if (i) the Indemnitee
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company and, with respect to any criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful, (ii) the
Indemnitee's conduct did not constitute intentional misconduct or a material
breach of the terms of this Agreement and (iii) the Indemnitee's conduct did not
involve a transaction from which the Manager or Named Officer derived an
improper personal benefit. The termination of any action, suit or proceeding by
judgment, order, settlement or upon a plea of NOLO CONTENDERE, or its
equivalent, shall not, of itself, create a presumption that the Indemnitee acted
in a manner contrary to the standards specified in clauses (i), (ii) or (iii) of
this Section 8.1(a).
(b) To the fullest extent permitted by law, expenses incurred
by an Indemnitee in defending any claim, demand, action, suit or proceeding
subject to this Section 8.1 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 Indemnitee
to repay such amount unless it is determined that such Indemnitee is entitled to
be indemnified therefor pursuant to this Section 8.1.
(c) The indemnification provided by this Section 8.1 shall be
in addition to any other rights to which any Indemnitee may be entitled under
any other agreement, pursuant to any vote of the Managers, as a matter of law or
otherwise, and shall inure to the benefit of the heirs, legal representatives,
successors, assigns and administrators of the Indemnities.
(d) Any indemnification under this Section 8.1 shall be
satisfied solely out of the assets of the Company and no Indemnitee shall have
any recourse against the Member with respect to such indemnification.
(e) An Indemnitee shall not be denied indemnification in whole
or in part under this Section 8.1 merely because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies, if the
transaction was not otherwise prohibited by the terms of this Agreement and the
conduct of the Indemnitee satisfied the conditions set forth in Section 8.1(a).
(f) The Company may, but shall have no obligation to, purchase
and maintain insurance covering any potential liability of the Indemnitees for
any actions or omissions for which indemnification is permitted hereunder,
including such types of insurance (including extended coverage liability and
casualty and workers' compensation) as would be customary for any person engaged
in a similar business, and may name the Indemnitees as additional insured
parties thereunder.
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Section 8.2. INDEMNIFICATION PROCEDURES; SURVIVAL.
(a) An Indemnitee shall notify the Company in writing within
30 days after receipt by the Indemnitee of notice of the commencement of any
action that may result in a claim for indemnification pursuant to Section 8.1;
PROVIDED, HOWEVER, that any omission so to notify the Company will not relieve
it of any liability for indemnification hereunder as to the particular item for
which indemnification may then be sought (except to the extent that the failure
to give notice shall have been materially prejudicial to the Company) nor from
any other liability that it may have to any Indemnitee.
(b) An Indemnitee shall have the right to employ separate
counsel in any action as to which indemnification may be sought under any
provision of this Agreement and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnitee
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense thereof and employ counsel within a
reasonable period of time after being given the notice required above or (iii)
the Indemnitee shall have been advised by its counsel that representation of
such Indemnitee and other parties by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them. It is understood, however, that the Company
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys at any time for all such
Indemnitees having actual or potential differing interests with the Company,
unless but only to the extent, the Indemnitees have actual or potential
differing interests with each other.
(c) The Company shall not be liable for any settlement of any
such action effected without its written consent, but if settled with such
written consent, or if there is a final judgment against the Indemnitee in any
such action, the Company agrees to indemnify and hold harmless the Indemnitee to
the extent provided above from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(d) The indemnification obligations set forth in Section 8.1
and this Section 8.2 shall survive the termination of this Agreement.
Article IX.
CERTIFICATES
------------
Each interest in the Company (or Unit) shall be represented by
a certificate, shall be a "security" within the meaning of Article 8 of the New
York Uniform Commercial Code (the "NYUCC") and shall be governed by Article 8 of
the NYUCC. A sample certificate is attached hereto as Exhibit A.
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Article X.
BOOKS OF ACCOUNT; REPORTS AND FISCAL MATTERS
---------------------------------------------
The Company shall maintain such books of account and such
financial information as may be required by the Member and the Act. The Member
or a designee shall retain a copy of this Agreement and all written actions of
the Member and the Board of Managers at the Principal Office or at such other
place as the Member may designate. The fiscal year of the Company shall end on
March 31.
Article XI.
AMENDMENT
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The Certificate of Formation and this Agreement may be amended
by the Member. Any amendment of this Agreement shall be in writing and a copy
thereof shall be kept with a copy of this Agreement at the Principal Office of
the Company.
Article XII.
LIABILITY; TAX STATUS
---------------------
Section 12.1. LIABILITY OF THE MEMBER. Except as otherwise
provided in the Act, the Member, as such, shall have no personal liability
whatsoever to the Company or any of the creditors of the Company for the debts,
liabilities, contracts or other obligations of the Company or any of the
Company's losses beyond the Member's Capital Contribution and, solely to the
extent and for the period required by applicable law, the amount of the Member's
Capital Contribution, if any, which is returned to it.
Section 12.2. TAX STATUS. The Member intends that the Company
will be classified solely for federal income tax purposes as an "eligible
entity" that is disregarded as an entity separate from its owner as provided in
Treasury Regulations Section 301.7701-3(a).
Article XIII.
DISSOLUTION AND LIQUIDATION
---------------------------
Section 13.1. EVENTS OF DISSOLUTION. The Company shall be
dissolved upon the occurrence of any of the following events:
(a) The written consent of the Member; or
(b) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Section 13.2. CONTINUATION OF BUSINESS. Upon the occurrence of
any event described in Section 18-801(4) of the Act, or any successor provision,
the Company shall continue unless dissolved by the Member pursuant to Section
13.1(a).
Section 13.3. LIQUIDATION AND WINDING UP. If dissolution of
the Company should be caused by reason of any of the events set forth in
paragraphs (a) or (b) of Section 13.1 hereof, the Company shall be liquidated
and the Person designated at such time by the Board of
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Managers (or other Person or Persons designated by a decree of court) shall wind
up the affairs of the Company. The Person or Persons winding up the affairs of
the Company shall promptly proceed to the liquidation of the Company Assets and,
in settling the accounts of the Company, the Company Assets shall be distributed
in the following order of priority:
(a) To creditors to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof), other than liabilities for which
reasonable provision for payment has been made and liabilities for distributions
to the Member;
(b) To the repayment of outstanding loans from the Member to
the Company; and
(c) The balance, if any, to the Member.
Article XIV.
CAPITAL
-----------
Section 14.1. CAPITAL CONTRIBUTIONS. The Member shall make
such Capital Contributions as it may determine from time to time. Such Capital
Contributions may be made in exchange for the issuance of additional Units or
otherwise. The Unit Transfer Record shall reflect the making of such Capital
Contributions.
Section 14.2. LOANS TO THE COMPANY. The Member may make loans
to the Company from time to time. Any such loans shall not be treated as Capital
Contributions to the Company for any purpose hereunder, but the Company shall be
obligated to the Member for the amount of any such loans pursuant to the terms
thereof.
Section 14.3. CREDITOR'S INTEREST IN THE COMPANY. No creditor
who makes a loan to the Company shall have or acquire at any time as a result of
making the loan any direct or indirect interest in the profits, capital or
property of the Company, other than such interest as may be accorded to a
secured creditor. Notwithstanding the foregoing, this provision shall not
prohibit in any manner whatsoever a secured creditor from participating in the
profits of operation or gross or net sales of the Company or in the gain on sale
or refinancing of the Company, all as may be provided in its loan or security
agreements.
Article XV.
ALLOCATION OF INCOME, GAINS AND LOSSES;
DISTRIBUTIONS
----------------------------------------
The income, profits, gains, losses tax credits of the Company
and distributions of cash or property of the Company to the Member shall be
treated for federal income tax purposes as if the Company were a division of the
Member in accordance with Treasury Regulation Section 301.7701-2(a).
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Article XVI.
MISCELLANEOUS PROVISIONS
------------------------
Section 16.1. PRONOUNS. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the person or entity may require.
Section 16.2. HEADINGS. Article and Section headings contained
in this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
Section 16.3. GOVERNING LAW. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Delaware (but not including the choice of law rules thereof).
IN WITNESS WHEREOF, the undersigned has executed this
Agreement as of the date first above written.
ALLIANT CONVENTIONAL MUNITIONS LLC
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Its Vice President and Secretary
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SCHEDULE A
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Name and Address of Capital Agreed Fair
MEMBER CONTRIBUTION MARKET VALUE UNITS
------ ------------ ------------- ---------
Alliant Conventional Munitions LLC $1,000 100
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
