SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF REED HYCALOG L.L.C. Dated as of January 31, 2003
Exhibit 3.40
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXX HYCALOG L.L.C.
Dated as of January 31, 2003
THE MEMBERSHIP INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP INTEREST MAY BE SOLD OR OFFERED FOR SALE
(WITHIN THE MEANING OF ANY SECURITIES LAW) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE
SECURITIES LAWS WITH RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A MEMBERSHIP INTEREST
ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE APPLICABLE PROVISIONS OF THIS AGREEMENT ARE
SATISFIED.
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of Xxxx Hycalog, L.L.C.
(this “Agreement”), dated as of January 31, 2003, is adopted, executed and agreed to by Grant
Prideco, Inc., a Delaware corporation, as the sole Member:
R E C I T A L S:
The Member has acquired all of the outstanding membership interests in the Company as of the
date hereof.
The Member desires to amend and restate the Amended and Restated Limited Liability Company
Agreement of the Company dated effective as of December 20, 2002 with the following Second Amended
and Restated Limited Liability Company Agreement.
A G R E E M E N T:
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein set
forth and intending to be legally bound, the parties hereto hereby enter into this Agreement
pursuant to the provisions and upon the terms and conditions herein contained, and hereby agree as
follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.01 Definitions. As used in this Agreement, the following terms have the following
meanings:
“Act” means the Delaware Limited Liability Company Act (6 Del C. § 18-101, et seq.) and
any successor statute, as amended from time to time.
“Agreement” has the meaning given that term in the introductory paragraph.
“Capital Contribution” means any contribution by the Member to the capital of the
Company.
“Certificate” has the meaning given that term in Section 2.01.
“Company” means Xxxx-Hycalog L.L.C., a Delaware limited liability company.
“Managers” has the meaning given that term in Section 5.01.
“Member” means Grant Prideco, Inc., a Delaware Corporation.
“Officers” has that meaning given in Section 6.01
“Person” has the meaning given that term in Section 18-101(12) of the Act.
“Proceeding” has the meaning given that term in Section 7.01.
Other terms defined herein have the meanings so given them.
1.02 Construction. Whenever the context requires, the gender of all words used in
this Agreement includes the masculine, feminine and neuter. All references to Articles and
Sections refer to articles and sections of this Agreement. Terms used with initial capital letters
will have the meanings specified, applicable to both singular and plural forms, for all purposes of
this Agreement. The word include (and any variation) is used in an illustrative sense rather than
a limited sense. The word day means a calendar day.
ARTICLE II
ORGANIZATION
ORGANIZATION
2.01 Formation. The Company has previously been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the “Certificate”) under and
pursuant to the Act.
2.02 Name. The name of the Company is “Xxxx-Hycalog L.L.C.” and all Company business
must be conducted in that name or such other names that comply with applicable law as the Member
may select from time to time.
2.03 Registered Office; Registered Agent; Principal Office in the United States; Other
Offices. The registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in the Certificate or
such other office (which need not be a place of business of the Company) as the Member may
designate from time to time in the manner provided by law. The registered agent of the Company in
the State of Delaware shall be the initial registered agent named in the Certificate or such other
Person or Persons as the Member may designate from time to time in the manner provided by law. The
principal office of the Company in the United States shall be at such place as the Member may
designate from time to time, which need not be in the State of Delaware. The Company may have such
other offices as the Member may designate from time to time.
2.04 Purpose. The purpose of the Company is to engage in any lawful activity which a
limited liability company may carry on under the Act. Nothing in this Agreement shall prohibit the
Member from engaging in any business, investment or other activity of any kind, even if such
business, investment or activity is competitive with the Company’s business.
2.05 Powers. The Company has all of the powers necessary or convenient to achieve its
purposes and to further its business.
2.06 Legal Title. Legal title to the assets of the Company will be taken and at all
times held in the name of the Company.
2.07 Qualifications. The Managers may take any and all actions deemed reasonably
necessary by the Managers to qualify the Company in foreign jurisdictions.
2.08 Mergers and Exchanges. With the consent of the Member, the Company may be a
party to (a) a merger, or (b) an exchange or acquisition of the type described in Section 18-209 of
the Act.
2.09 Liability to Third Parties. The Member shall not be liable for the debts,
obligations or liabilities of the Company, including under a judgment decree or order of a court.
2.10 Resignation of the Member. The Member may resign from the Company prior to the
dissolution and winding up of the Company.
2.11 Transfer or Pledge by the Member. The Member may transfer or pledge its interest
in the Company without restriction. The pledge or hypothecation of, or the granting of any
security interest or other lien or encumbrance against, all or part of the Member’s membership
interest in the Company by the Member will not cause the withdrawal of the Member from the Company.
2.12 Bankruptcy of the Member. The Member shall not cease to be a Member of the
Company by virtue of the occurrence of any of the events listed in Section 18-304 of the Act.
ARTICLE III
CAPITAL CONTRIBUTIONS
CAPITAL CONTRIBUTIONS
3.01 Initial Contributions. The Member has made a Capital Contribution to the Company
by contributing in the form of cash, series, or other tangible and intangible assets.
3.02 Additional Contributions. The Member shall not be required to make any
additional contributions to the capital of the Company.
3.03 No Withdrawal of Contributions. The Member shall not be entitled to withdraw any
part of the Member’s capital account or to receive any distribution from the Company, except as
specifically provided in this Agreement. There shall be no obligation to return to the Member
any part of the Member’s capital contributions to the Company until such time as the Company is
dissolved and terminated.
3.04 Advances by the Member. If the Company does not have sufficient cash to pay its
obligations, the Member may advance all or part of the needed funds to or on behalf of the Company.
An advance described in this Section constitutes a loan from the Member to the Company, bears
interest at a rate determined by the Member from the date of the advance until the date of payment,
and is not a Capital Contribution.
3.05 Certification of Membership Interests. The Member hereby specifies, acknowledges
and agrees that all interests in the Company are securities governed by Article 8 and all other
provisions of the Uniform Commercial Code as adopted and amended in the State of Delaware (the
“UCC”), and pursuant to the terms of Section 8.103 of the UCC, such interests shall be “securities”
for all purposes under such Article 8 and under all other provisions of the UCC, and that the
ownership interest of the Member shall be recognized by a form of Membership Certificate attached
hereto as Annex A (“Certificates”). Certificates shall be numbered and executed by the President
and Secretary of the Company and shall be entered into a membership transfer register as they are
issued, which register shall be maintained by the Secretary of the Company. Upon surrender to the
Secretary of the Company of a certificate for membership interests duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be the duty of the
Company to issue a new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
ALLOCATIONS AND DISTRIBUTIONS
4.01 Allocations. All items of income, gain, loss, deduction, and credit of the
Company shall be allocated to the Member.
4.02 Distributions. Subject to the limitations of Section 18-607 of the Act, from
time to time the Managers may cause the Company to make a distribution of cash or other property to
the Member. From time to time the Managers also may cause property of the Company other than cash
to be distributed to the Member, which distribution may be made subject to existing liabilities and
obligations.
ARTICLE V
MANAGEMENT
MANAGEMENT
5.01 Management. Subject to the provisions of this Agreement, the Company shall
appoint managers (the “Managers”), who shall have exclusive authority to act on behalf of the
Company. Subject to the provisions of this Agreement, the Managers shall have the authority to
manage the business and affairs of the Company. The Member shall have no authority to act on
behalf of or bind the Company.
5.02 Selection, Removal and Resignation of Managers. The Member shall select any and
all Managers of the Company. The initial Managers of the Company shall be Xxxxxxx XxXxxxx, Xxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxxx. The Member may remove any of the Managers at any time, with or
without cause, upon delivery to such Manager at the principal office of the Company of written
notice of such removal. Further, any of the Managers may resign upon delivery to the Member at the
principal office of the Company of written notice of such resignation.
5.03 Compensation. The Managers shall receive such compensation for their duties as
Managers as the Member shall determine in its sole discretion.
ARTICLE VI
OFFICERS
OFFICERS
6.01 Officers. The officers of the Company shall be elected by the Managers, and
shall include a President, a Secretary, a Treasurer, and such other officers, employees and agents
as appointed, from time to time, in accordance with this Agreement. Additionally, the President
shall have the power to appoint such Vice Presidents and other officers equivalent or junior
thereto as the President may deem appropriate.
6.02 Term. Each officer of the Company shall serve at the pleasure of the Managers,
and the Managers may remove any officer at any time with or without cause. Any officer, if
appointed by the President of the Company, may likewise be removed by the President of the Company.
6.03. Authority and Duties. All officers and agents of the Company shall have such
authority and perform such duties in the management of the property and affairs of the Company as
generally pertain to their respective offices, as well as such authority and duties as may be
determined by the Managers.
6.04. Execution of Instruments. Checks, notes, drafts, other commercial instruments,
assignments, guarantees of signatures, and contracts (except as otherwise provided herein or by
law) shall be executed by the President, any Vice President, the Secretary, the Treasurer, or such
officers or employees or agents as the Managers or any of such designated officers may direct.
ARTICLE VII
INDEMNIFICATION
INDEMNIFICATION
7.01 Right to Indemnification. Subject to the limitations and conditions as provided
in this Article VI, each Person who was or is made a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (hereinafter a “Proceeding”), or any appeal
in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by
reason of the fact that he, or a Person of whom he is the legal representative, is or was a Manager
or Member of the Company shall be indemnified by the Company to the fullest extent permitted by the
Act, as the
same exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader indemnification rights
than said law permitted the Company to provide prior to such amendment) against judgments,
penalties (including excise and similar taxes and punitive damages), fines, settlements and
reasonable expenses (including, without limitation, attorneys’ fees) actually incurred by such
Person in connection with such Proceeding, and indemnification under this Article VI shall continue
as to a Person who has ceased to serve in the capacity which initially entitled such Person to
indemnity hereunder. The rights granted pursuant to this Article VI shall be deemed contract
rights, and no amendment, modification or repeal of this Article VI shall have the effect of
limiting or denying any such rights with respect to actions taken or Proceedings arising prior to
any such amendment, modification or repeal. It is expressly acknowledged that the indemnification
provided in this Article VI could involve indemnification for negligence or under theories of
strict liability.
7.02 Advance Payment. The right to indemnification conferred in this Article VI shall
include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a
Person of the type entitled to be indemnified under Section 6.01 who was, is or is threatened to be
made a named defendant or respondent in a Proceeding in advance of the final disposition of the
Proceeding and without any determination as to the Person’s ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred by any such Person
in advance of the final disposition of a Proceeding, shall be made only upon delivery to the
Company of a written affirmation by the Person of his good faith belief that he has met the
standard of conduct necessary for indemnification under this Article VI and a written undertaking,
by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified Person is not entitled to be indemnified under this Article VI or
otherwise.
7.03 Indemnification of Officers, Employees and Agents. The Company, by adoption of a
resolution of the Member, may indemnify and advance expenses to an officer, employee or agent of
the Company to the same extent and subject to the same conditions under which it may indemnify and
advance expenses to a Manager or Member under this Article VI; and, the Company may indemnify and
advance expenses to Persons who are not or were not a Manager or Member, officers, employees or
agents of the Company but who are or were serving at the request of the Company as a manager,
director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic limited liability company, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in such a capacity or arising out of his status as such a
Person to the same extent that it may indemnify and advance expenses to a Manager or Member under
this Article VI.
7.04 Appearance as a Witness. Notwithstanding any other provision of this Article VI,
the Company may pay or reimburse expenses incurred by a Person in connection with his appearance as
a witness or other participation in a Proceeding at a time when he is not a named defendant or
respondent in the Proceeding.
7.05 Nonexclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article VI shall not be exclusive of any other right which
the Managers, the Member or other Person indemnified pursuant to this Article VI may have or
hereafter acquire under any law (common or statutory), provision of the Certificate or this
Agreement, agreement, vote of the Member or otherwise.
7.06 Insurance. The Company may purchase and maintain insurance, at its expense, to
protect itself and any Person who is or was serving as a Manager, officer, employee or agent of the
Company or is or was serving at the request of the Company as a member, manager, director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or
loss, whether or not the Company would have the power to indemnify such Person against such
expense, liability or loss under this Article VI.
7.07 Savings Clause. If this Article VI or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
and hold harmless the Managers or the Member or any other Person indemnified pursuant to this
Article VI as to costs, charges and expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative to the fullest extent permitted by any applicable portion of this
Article VI that shall not have been invalidated and to the fullest extent permitted by applicable
law.
ARTICLE VIII
TAXES AND BOOKS
TAXES AND BOOKS
8.01 Federal Income Tax Treatment. For federal income tax purposes, the Company shall
be an entity separate from the Member pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii). The Managers are hereby authorized to make such elections and to take any
and all action to ensure that the Company is classified as an entity separate from the Member for
federal income tax purposes.
8.02 Other Tax Returns. Subject to Section 7.01, the Managers shall cause to be
prepared and filed all necessary tax returns for the Company.
8.03 Maintenance of Books and Records. The Company shall keep accurate books and
records of accounts. The calendar year shall be the accounting year of the Company. The Member
shall be permitted access to all books and records of the Company at the principal office of the
Company during business hours.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND TERMINATION
DISSOLUTION, LIQUIDATION AND TERMINATION
9.01 Dissolution. The Company shall dissolve and its affairs shall be wound up on the
first to occur of the following:
(a) The written consent of the Member;
(b) At any time there are no Members, unless the business of the Company is continued
pursuant to Section 18-801(4) of the Act; and
(c) Entry of a decree of judicial dissolution of the Company under Section 18-802 of
the Act.
The death, retirement, resignation, expulsion, bankruptcy or dissolution 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.
9.02 Liquidation and Termination. On dissolution of the Company, the Managers shall
act as liquidating trustees or the Member may appoint one or more other Persons to act as
liquidating trustee. The liquidating trustee shall proceed diligently to wind up the affairs of
the Company in accordance with Section 18-804 of the Act and make final distributions to the
Member. The costs of liquidation shall be borne as a Company expense. Until final distribution,
the liquidating trustee shall continue to operate the Company assets with all of the power and
authority of the Managers.
9.03 Deficit Capital Accounts. Notwithstanding anything to the contrary contained in
this Agreement, and notwithstanding any custom or rule of law to the contrary, the Member shall not
be responsible for any deficit in any capital account attributed to the Member, and upon
dissolution of the Company any such deficit shall not be an asset of the Company and the Member
shall not be obligated to contribute such amount to the Company to bring the balance of the
Member’s capital account to zero.
9.04 Certificate of Cancellation. On completion of the distribution of Company assets
as provided herein, the Company is terminated, and the Managers (or such other Person or Persons as
the Act may require or permit) shall file a Certificate of Cancellation with the Secretary of State
of Delaware and take such other actions as may be necessary to terminate the Company.
ARTICLE X
GENERAL PROVISIONS
GENERAL PROVISIONS
10.01 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement
of the Member relating to the Company and supersedes all prior contracts or agreements with respect
to the internal governance of the Company, whether oral or written.
10.02 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of
any breach or default by any Person in the performance by that Person of its obligations with
respect to the Company is not a consent or waiver to or of any other breach or default in the
performance by that Person of the same or any other obligations of that Person with respect to the
Company. Failure on the part of a Person to complain of any act of any Person or to declare any
Person in default with respect to the Company, irrespective of how long that failure continues,
does not constitute a waiver by that Person of its rights with respect to that default until the
applicable statute of limitations period has run.
10.03 Amendment or Modification. This Agreement may be amended or modified from time
to time only by a written instrument adopted by the Member.
10.04 Binding Effect. This Agreement is binding on, and inures to the benefit of, the
Member and its heirs, legal representatives, successors, and assigns.
10.05 Severability. If any provision of this Agreement or the application thereof to
any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this
Agreement and the application of that provision to other Persons or circumstances is not affected
thereby and that provision shall be enforced to the greatest extent permitted by law.
10.06 Headings. Article and Section titles have been inserted for convenience of
reference only, and they are not intended to affect the meaning or interpretation of this
Agreement.
10.07 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE
THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and (a)
any provision of the Certificate, or (b) any mandatory provision of the Act, the applicable
provision of this Agreement shall control except to the extent required by the Act.
IN WITNESS WHEREOF, the Member has executed this Second Amended and Restated Limited Liability
Company Agreement as of the date first set forth above.
| Grant Prideco, Inc. a Delaware corporation, sole member |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President, General Counsel and Secretary | |||
