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EXHIBIT 3.3
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THERMADYNE MFG. LLC
(A Delaware Limited Liability Company)
LIMITED LIABILITY COMPANY AGREEMENT
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Dated as of May 5, 1998
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INTERESTS ARE SUBJECT TO TRANSFER RESTRICTIONS.
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TABLE OF CONTENTS
Page
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ARTICLE 1
ORGANIZATION
1.1 Formation of Company.......................................................................... 1
1.2 Name.......................................................................................... 1
1.3 Character of Business......................................................................... 1
1.4 Registered Office and Agent................................................................... 1
1.5 Fiscal Year................................................................................... 1
ARTICLE 2
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions to the Company.......................................................... 2
2.2 No Return of Capital Contribution............................................................. 2
2.3 No Interest................................................................................... 2
ARTICLE 3
RIGHTS AND OBLIGATIONS OF MEMBER
3.1 Management of Company......................................................................... 2
3.2 Liability of Member........................................................................... 2
3.3 Other Activities of Member.................................................................... 2
ARTICLE 4
EXCULPATION AND INDEMNITY
4.1 Exculpation................................................................................... 2
4.2 Indemnity..................................................................................... 3
4.3 Additional Indemnity.......................................................................... 4
4.4 Definition of Proceedings..................................................................... 4
4.5 No Required Capital Contribution.............................................................. 4
ARTICLE 5
DISTRIBUTIONS AND ALLOCATIONS
5.1 Distributions................................................................................. 4
5.2 Tax Allocations............................................................................... 4
ARTICLE 6
ADMISSIONS OF NEW MEMBERS, TRANSFER RESTRICTIONS AND
NATURE OF INTERESTS IN THE COMPANY
6.1 Admission of New Members...................................................................... 4
6.2 Transfer Restrictions......................................................................... 4
6.3 Nature of Interests in the Company............................................................ 4
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ARTICLE 7
ACCOUNTING PROVISIONS AND REPORTS
7.1 Books of Account.............................................................................. 5
7.2 Place Kept; Inspection........................................................................ 5
ARTICLE 8
BOARD OF DIRECTORS
8.1 Management.................................................................................... 5
8.2 Number; Qualification; Election; Term......................................................... 5
8.3 Change in Number.............................................................................. 6
8.4 Removal....................................................................................... 6
8.5 Vacancies..................................................................................... 6
8.6 Meetings of Directors......................................................................... 6
8.7 First Meeting................................................................................. 6
8.8 Election of Officers.......................................................................... 6
8.9 Regular Meetings.............................................................................. 6
8.10 Special Meetings.............................................................................. 7
8.11 Notice........................................................................................ 7
8.12 Quorum; Majority Vote......................................................................... 7
8.13 Procedure..................................................................................... 7
8.14 Presumption of Assent......................................................................... 7
8.15 Compensation.................................................................................. 7
8.16 Action by Written Consent..................................................................... 8
8.17 Telephone and Similar Meetings................................................................ 8
ARTICLE 9
OFFICERS AND OTHER AGENTS
9.1 Number; Titles; Term of Office................................................................ 8
9.2 Removal....................................................................................... 8
9.3 Vacancies..................................................................................... 8
9.4 Authority..................................................................................... 9
9.5 Compensation.................................................................................. 9
9.6 Chairman of the Board......................................................................... 9
9.7 President..................................................................................... 9
9.8 Vice Presidents............................................................................... 9
9.9 Treasurer..................................................................................... 9
9.10 Assistant Treasurers.......................................................................... 10
9.11 Secretary..................................................................................... 10
9.12 Assistant Secretaries......................................................................... 10
ARTICLE 10
MEETINGS OF THE MEMBER
10.1 Place of Meetings............................................................................. 10
10.2 Annual Meeting................................................................................ 10
10.3 Special Meetings.............................................................................. 10
10.4 Notice and Waiver Thereof..................................................................... 11
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10.5 Adjournment................................................................................... 11
10.6 Proxies....................................................................................... 11
10.7 Conduct of Meeting............................................................................ 11
10.8 Action by Written Consent..................................................................... 12
10.9 Telephone and Similar Meetings................................................................ 12
ARTICLE 11
AMENDMENTS AND WAIVERS
11.1 With Member Consent........................................................................... 12
11.2 Without Member Consent........................................................................ 12
11.3 Certain Other Amendments...................................................................... 12
ARTICLE 12
DISSOLUTION AND TERMINATION
12.1 Dissolution................................................................................... 13
12.2 Accounting on Dissolution..................................................................... 13
12.3 Termination................................................................................... 13
12.4 No Negative Capital Account Obligation........................................................ 14
12.5 No Other Cause of Dissolution................................................................. 14
12.6 Merger........................................................................................ 14
ARTICLE 13
MISCELLANEOUS
13.1 Waiver of Partition........................................................................... 14
13.2 Entire Agreement.............................................................................. 14
13.3 Severability.................................................................................. 14
13.4 Notices....................................................................................... 14
13.5 Governing Laws................................................................................ 15
13.6 Successors and Assigns........................................................................ 15
13.7 Counterparts.................................................................................. 15
13.8 Headings...................................................................................... 15
13.9 Other Terms................................................................................... 15
13.10 Power of Attorney............................................................................. 15
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THERMADYNE MFG. LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement (the "Agreement") of
Thermadyne Mfg. LLC, a Delaware limited liability company (the "Company"), is
made effective as of May 5, 1998 (the "Effective Date") by Thermadyne Holdings
Corporation, a Delaware corporation, as the sole member of the Company (the
"Member").
ARTICLE 1
ORGANIZATION
SECTION 1.1 FORMATION OF COMPANY. The Member has formed a limited
liability company pursuant to and in accordance with the provisions of the
Delaware Limited Liability Company Act (6 Del.C. ss. 18-101, et seq., as amended
from time to time, the "Act"), by the filing of a certificate of formation of
the limited liability company with the office of the Secretary of State of
Delaware (the "Certificate of Formation").
SECTION 1.2 NAME. The name of the Company is Thermadyne Mfg. LLC. The
Board of Directors (as defined in Section 8.1) may change the name of the
Company from time to time. In any such event, the Company shall promptly file in
the office of the Secretary of State of Delaware an amendment to the Certificate
of Formation reflecting such change of name.
SECTION 1.3 CHARACTER OF BUSINESS. The purpose of the Company shall be
(i) to acquire, hold, sell, manage, operate, encumber, or otherwise act with
respect to the subsidiaries of the Member and (ii) to engage in such other
business as may be conducted by a limited liability company organized under the
laws of the State of Delaware.
SECTION 1.4 REGISTERED OFFICE AND AGENT. The name and address of the
Company's initial registered agent are The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000, and the address of the Company's initial principal place of
business shall be 000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000. The Board of
Directors may change such registered agent, registered office, or principal
place of business from time to time. The Company may from time to time have such
other place or places of business within or without the State of Delaware as may
be determined by the Board of Directors.
SECTION 1.5 FISCAL YEAR. The fiscal year of the Company shall end on
December 31 of each calendar year unless, for United States federal income tax
purposes, another fiscal year is required. The Company shall have the same
fiscal year for United States federal income tax purposes and for accounting
purposes.
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ARTICLE 2
CAPITAL CONTRIBUTIONS
SECTION 2.1 CAPITAL CONTRIBUTIONS TO THE COMPANY. The Member shall
contribute capital to the Company in the amount set forth opposite its name on
Schedule I to this Agreement. The Member shall not be obligated to make any
additional capital contributions to the Company.
SECTION 2.2 NO RETURN OF CAPITAL CONTRIBUTION. The Member is not
entitled to a withdrawal or return of its capital contribution. Instead, the
Member shall look solely to distributions from the Company for such purpose.
SECTION 2.3 NO INTEREST. The Member shall not be entitled to interest
on its capital contribution, and any interest actually received by reason of
investment of any part of the Company's funds shall be included in the Company's
property.
ARTICLE 3
RIGHTS AND OBLIGATIONS OF MEMBER
SECTION 3.1 MANAGEMENT OF COMPANY. The management, control, and
direction of the Company and its operations, business, and affairs shall be in
accordance with the provisions of Articles 8 and 9 hereof.
SECTION 3.2 LIABILITY OF MEMBER. The Member shall not be personally
liable for the debts and obligations of the Company, whether arising in tort,
contract or otherwise, except to the extent expressly required by applicable
law; provided, however, that all such debts and obligations shall be paid or
discharged first with the property of the Company (including insurance proceeds)
before the Member shall be obligated to pay or discharge any such debt or
obligation with its personal assets.
SECTION 3.3 OTHER ACTIVITIES OF MEMBER. Neither this Agreement nor any
principle of law or equity shall preclude or limit, in any respect, the right of
the Member or any affiliate thereof to engage in or derive profit or
compensation from any activities or investments.
ARTICLE 4
EXCULPATION AND INDEMNITY
SECTION 4.1 EXCULPATION. Neither the Member nor any officer, director,
employee, agent, stockholder, member, or partner of the Member or any of its
affiliates, shall be liable, responsible, or accountable in damages or otherwise
to the Company by
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reason of, or arising from, the operations, business, or affairs of, or any
action taken or failure to act on behalf of, the Company, except to the extent
that any of the foregoing is determined, by a final, nonappealable order of a
court of competent jurisdiction, to have been primarily caused by the willful
misconduct of the person claiming exculpation.
SECTION 4.2 INDEMNITY. The Company shall indemnify any person who was,
is, or is threatened to be made a party to a proceeding (as hereinafter defined)
by reason of the fact that he or she (i) is or was an officer or director of the
Company or (ii) while serving as an officer or director of the Company, is or
was 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, to the fullest extent permitted under the General
Corporation Law of the State of Delaware (the "DGCL") with respect to a
corporation organized under the DGCL, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any officer or director who is elected and accepts the position of
director or officer of the Company or elects to continue to serve as an officer
or director of the Company while this Article 4 is in effect. Any repeal or
amendment of this Article 4 shall be prospective only and shall not limit the
rights of any such officer or director or the obligations of the Company with
respect to any claim arising from or related to the services of such officer or
director in any of the foregoing capacities prior to any such repeal or
amendment to this Article 4. Such right shall include the right to be paid by
the Company expenses incurred in investigating or defending any such proceeding
in advance of its final disposition to the maximum extent permitted under the
DGCL with respect to a corporation organized under the DGCL, as the same exists
or may hereafter be amended. If a claim for indemnification or advancement of
expenses hereunder is not paid in full by the Company within sixty (60) days
after a written claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the DGCL with respect to a corporation organized
under the DGCL, but the burden of proving such defense shall be on the Company.
Neither the failure of the Company (including its Board of Directors or any
committee thereof, independent legal counsel, or the Member) to have made its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or the Member)
that such indemnification or advancement is not permissible shall be a defense
to the action or create a presumption that such indemnification or advancement
is not permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
resolution of stockholders or directors, agreement, or otherwise.
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SECTION 4.3 ADDITIONAL INDEMNITY. The Company may additionally
indemnify any employee or agent of the Company to the fullest extent permitted
by law.
SECTION 4.4 DEFINITION OF PROCEEDINGS. As used herein, the term
"proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit, or proceeding.
SECTION 4.5 NO REQUIRED CAPITAL CONTRIBUTION. The Member shall not be
required to contribute capital in respect of any indemnification claim under
this Article 4 unless otherwise provided in any other written agreement to which
the Member is a party.
ARTICLE 5
DISTRIBUTIONS AND ALLOCATIONS
SECTION 5.1 DISTRIBUTIONS. Distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Board of Directors.
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not make a distribution to the Member on account of its interest
in the Company if such distribution would violate the Act or any other
applicable law.
SECTION 5.2 TAX ALLOCATIONS. For United States federal and state income
tax purposes, the Company shall be treated as a division of the Member and shall
not be treated as a separate entity from the Member. The Company shall not make
an election to be taxed as a corporation pursuant to Treasury Regulation section
301.7701-3(c).
ARTICLE 6
ADMISSIONS OF NEW MEMBERS, TRANSFER RESTRICTIONS AND
NATURE OF INTERESTS IN THE COMPANY
SECTION 6.1 ADMISSION OF NEW MEMBERS. After the Effective Date, new
members may be admitted to the Company only with the written consent of, and
upon such terms and conditions as are approved by, the Member.
SECTION 6.2 TRANSFER RESTRICTIONS. No transfer of all or any portion of
the Member's interest in the Company shall be permitted.
SECTION 6.3 NATURE OF INTERESTS IN THE COMPANY. The Member's interest
in the Company is a security subject to the provisions of Section 8-106 of the
Uniform Commercial Code as in effect in the State of Delaware from time to time.
Such interest shall be evidenced by a membership certificate substantially in
the form of Exhibit A hereto.
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ARTICLE 7
ACCOUNTING PROVISIONS AND REPORTS
SECTION 7.1 BOOKS OF ACCOUNT. The Member shall keep or cause to be kept
complete and appropriate records and books of account in which shall be entered
all such transactions and other matters relative to the Company's operations,
business, and affairs as are usually entered into records and books of account
that are maintained by persons engaged in business of like character or are
required by the Act. Except as otherwise expressly provided herein, such books
and records shall be maintained in accordance with the basis utilized in
preparing the Member's United States federal income tax returns, which returns,
if allowed by applicable law, may in the discretion of the Member be prepared on
either a cash basis or accrual basis.
SECTION 7.2 PLACE KEPT; INSPECTION. The books and records shall be
maintained at the principal place of business of the Company, and all such books
and records shall be available for inspection and copying at the reasonable
request, and at the expense, of the Member during the ordinary business hours of
the Company.
ARTICLE 8
BOARD OF DIRECTORS
SECTION 8.1 MANAGEMENT. The business and property of the Company shall
be managed by the board of directors (the "Board of Directors"), who shall act
as "Managers" pursuant to the Act. Subject to any restrictions imposed by law or
this Agreement, the Board of Directors may exercise all the powers of a
"Manager" under the Act. Any action by the Board of Directors shall be deemed to
be an action by the Managers of the Company for the purposes of the Act or
otherwise.
SECTION 8.2 NUMBER; QUALIFICATION; ELECTION; TERM. The number of
directors which shall constitute the entire Board of Directors shall be not less
than one. The initial Board of Directors shall consist of the number of
directors elected by the Member at an organizational meeting or by written
consent in lieu thereof. Thereafter, within the limits above specified, the
number of directors which shall constitute the entire Board of Directors shall
be determined by resolution of the Board of Directors or by resolution of the
Member. Except as otherwise required by law or this Agreement, the directors
shall be elected at an annual meeting of the Members. Directors shall be elected
by the Member. Each director so chosen shall hold office until the first annual
meeting of the Member held after his or her election and until his or her
successor is elected and qualified or, if earlier, until his or her death,
resignation, or removal from office. None of the directors need be the Member or
a resident of the State of Delaware. Each director must have attained the age of
majority.
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SECTION 8.3 CHANGE IN NUMBER. No decrease in the number of directors
constituting the entire Board of Directors shall have the effect of shortening
the term of any incumbent director.
SECTION 8.4 REMOVAL. Except as otherwise provided in the Certificate of
Formation or this Agreement, at any meeting of the Member called expressly for
that purpose, any director or the entire Board of Directors may be removed, with
or without cause, by the Member.
SECTION 8.5 VACANCIES. Vacancies and newly-created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
the sole remaining director, and each director so chosen shall hold office until
the first annual meeting of the Member held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, the Member may
elect directors of the Company to fill such vacancies or newly-created
directorships. Except as otherwise provided in this Agreement, when one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
Agreement with respect to the filling of other vacancies.
SECTION 8.6 MEETINGS OF DIRECTORS. The directors may hold their
meetings and may have an office and keep the books of the Company, except as
otherwise provided by statute, in such place or places within or without the
State of Delaware as the Board of Directors may from time to time determine or
as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
SECTION 8.7 FIRST MEETING. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the Member, and no notice of such meeting shall be necessary.
SECTION 8.8 ELECTION OF OFFICERS. At the first meeting of the Board of
Directors after each annual meeting of the Member at which a quorum shall be
present, the Board of Directors shall elect the officers of the Company. The
initial officers of the Company are as set forth on Schedule II attached hereto
and incorporated herein.
SECTION 8.9 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated from
time to time by resolution of the Board of Directors. Notice of such regular
meetings shall not be required.
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SECTION 8.10 SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President, or any director.
SECTION 8.11 NOTICE. The Secretary shall give notice of each special
meeting to each director at least twenty-four (24) hours before the meeting.
Notice of any such meeting need not be given to any director who shall, either
before or after the meeting, submit a signed waiver of notice or who shall
attend such meeting without protesting, prior to or at its commencement, the
lack of notice to him or her. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 8.12 QUORUM; MAJORITY VOTE. At all meetings of the Board of
Directors, a majority of the directors fixed in the manner provided in this
Agreement shall constitute a quorum for the transaction of business. If at any
meeting of the Board of Directors there be less than a quorum present, a
majority of those present or any director solely present may adjourn the meeting
from time to time without further notice. Unless the act of a greater number is
required by law, the Certificate of Formation or this Agreement, the act of a
majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the Board of Directors.
SECTION 8.13 PROCEDURE. At meetings of the Board of Directors, business
shall be transacted in such order as from time to time the Board of Directors
may determine. The Chairman of the Board, if such office has been filled, and,
if not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the Board of Directors from among the directors present. The Secretary of the
Company shall act as the secretary of each meeting of the Board of Directors
unless the Board of Directors appoints another person to act as secretary of the
meeting. The Board of Directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Company.
SECTION 8.14 PRESUMPTION OF ASSENT. A director of the Company who is
present at the meeting of the Board of Directors at which action on any company
matter is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or registered mail to the Secretary of the Company immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 8.15 COMPENSATION. The Board of Directors shall have the
authority to fix the compensation, including fees and reimbursement of expenses,
paid to directors for attendance at regular or special meetings of the Board of
Directors or any committee thereof;
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provided, that nothing contained herein shall be construed to preclude any
director from serving the Company in any other capacity or receiving
compensation therefor.
SECTION 8.16 ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any regular or special meeting of the Board of
Directors may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing setting forth the action so taken
shall be signed by a majority of the Directors. Every written consent shall bear
the date of signature of each director. A telegram, telex, cablegram or similar
transmission by a director, or a photographic, photostatic, facsimile, or
similar reproduction of a writing signed by a director, shall be regarded as
signed by the director for purposes of this Section 8.16.
SECTION 8.17 TELEPHONE AND SIMILAR MEETINGS. The Board of Directors may
participate in and hold a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE 9
OFFICERS AND OTHER AGENTS
SECTION 9.1 NUMBER; TITLES; TERM OF OFFICE. The officers of the Company
shall be a President and a Secretary and such other officers as the Board of
Directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the Board of Directors shall determine), an
Assistant Secretary, a Treasurer, and an Assistant Treasurer. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified, until his death, or until he shall resign or shall have been removed
in the manner hereinafter provided. Any two (2) or more offices may be held by
the same person. None of the officers need be a Member or a director of the
Company or a resident of the State of Delaware.
SECTION 9.2 REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interest of the Company will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
SECTION 9.3 VACANCIES. Any vacancy occurring in any office of the
Company (by death, resignation, removal, or otherwise) may be filled by the
Board of Directors.
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SECTION 9.4 AUTHORITY. Officers shall have such authority and perform
such duties in the management of the Company as are provided in this Agreement
or as may be determined by resolution of the Board of Directors not inconsistent
with this Agreement.
SECTION 9.5 COMPENSATION. The compensation, if any, of officers and
agents shall be fixed from time to time by the Board of Directors; provided,
however, that the Board of Directors may delegate the power to determine the
compensation of any officer and agent (other than the officer to whom such power
is delegated) to the Chairman of the Board or the President.
SECTION 9.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if
elected by the Board of Directors, shall have such powers and duties as may be
prescribed by the Board of Directors. Such officer shall preside at all meetings
of the Member and of the Board of Directors.
SECTION 9.7 PRESIDENT. The President shall be the chief executive
officer of the Company and, subject to the Board of Directors, he shall have
general executive charge, management, and control of the properties and
operations of the Company in the ordinary course of its business, with all such
powers with respect to such properties and operations as may be reasonably
incident to such responsibilities. If the Board of Directors has not elected a
Chairman of the Board or in the absence or inability to act of the Chairman of
the Board, the President shall exercise all of the powers and discharge all of
the duties of the Chairman of the Board. As between the Company and third
parties, any action taken by the President in the performance of the duties of
the Chairman of the Board shall be conclusive evidence that there is no Chairman
of the Board or that the Chairman of the Board is absent or unable to act.
SECTION 9.8 VICE PRESIDENTS. Each Vice President shall have such powers
and duties as may be assigned to him by the Board of Directors, the Chairman of
the Board, or the President, and (in order of their seniority as determined by
the Board of Directors or, in the absence of such determination, as determined
by the length of time they have held the office of Vice President) shall
exercise the powers of the President during that officer's absence or inability
to act. As between the Company and third parties, any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
SECTION 9.9 TREASURER. The Treasurer shall have custody of the
Company's funds and securities, shall keep full and accurate account of receipts
and disbursements, shall deposit all monies and valuable effects in the name and
to the credit of the Company in such depository or depositories as may be
designated by the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board, or the
President.
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SECTION 9.10 ASSISTANT TREASURERS. Each Assistant Treasurer shall have
such powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
SECTION 9.11 SECRETARY. Except as otherwise provided in this Agreement,
the Secretary shall keep the minutes of all meetings of the Board of Directors
and of the Members in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Company, all contracts of the
Company. He may sign with the Chairman of the Board or the President all
certificates representing Membership Interests of the Company, and he shall have
charge of the certificate books, transfer books, and other papers as the Board
of Directors may direct, all of which shall at all reasonable times be open to
inspection by any director upon application at the office of the Company during
business hours; it being agreed, however, that no certificate evidencing
Membership Interests need be issued. He shall in general perform all duties
incident to the office of the Secretary, subject to the control of the Board of
Directors, the Chairman of the Board, and the President.
SECTION 9.12 ASSISTANT SECRETARIES. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE 10
MEETINGS OF THE MEMBER
SECTION 10.1 PLACE OF MEETINGS. All meetings of the Member shall be
held at the principal place of business of the Company as provided in Section
1.4 or at such other place within or without the State of Delaware as shall be
specified or fixed in the notice or waiver of notice calling the meeting.
SECTION 10.2 ANNUAL MEETING. An annual meeting of the Member, for the
transaction of all business as may properly come before the meeting, shall be
held at such place, within or without the State of Delaware, on such date and at
such time as the Member shall fix and set forth in the notice of the meeting.
SECTION 10.3 SPECIAL MEETINGS. Special meetings of the Member for any
proper purpose or purposes may be called at any time by resolution of the Board
of Directors or by the Member. The Member may call a meeting by delivering to
the Board of Directors a
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written request stating that the Member wishes to call a meeting and indicating
the specific purpose for which the meeting is to be held. Only business within
the purpose or purposes described in the notice (or waiver thereof) required by
this Agreement may be conducted at a special meeting of the Members.
SECTION 10.4 NOTICE AND WAIVER THEREOF. Written or printed notice
stating the place, day and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than 10 days nor more than 60 days before the date of the
meeting, by or at the direction of the Board of Directors, to the Member in
accordance with Section 13.4. Attendance of the Member at a meeting shall
constitute a waiver of notice of the meeting except where the Member attends for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened. Notice of a meeting
may also be waived in writing. Attendance at the special meeting is not a waiver
of any right to object to the consideration of matters required to be included
in the notice of the special meeting but not so included, if the objection is
expressly made at the meeting.
SECTION 10.5 ADJOURNMENT. Notwithstanding the other provisions of the
Certificate of Formation or this Agreement, the Chairman of the Board or the
Member shall have the power to adjourn such meeting from time to time, without
any notice other than announcement of the time and place of the holding of the
adjourned meeting. If such meeting is adjourned by the Member, such time and
place shall be determined by the Member. Upon the resumption of such adjourned
meeting, any business may be transacted that might have been transacted at the
meeting as originally called.
SECTION 10.6 PROXIES. The Member may vote either in person or by proxy
executed in writing by the Member. A telegram, telex, cablegram or similar
transmission by the Member, or a photographic, photostatic, facsimile, or
similar reproduction of a writing executed by the Member shall be treated as an
execution in writing for purposes of this Section 10.6. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
SECTION 10.7 CONDUCT OF MEETING. The Board of Directors shall have full
power and authority concerning the manner of conducting any meeting of the
Member, including, without limitation, the determination of persons entitled to
vote, the satisfaction of the requirements of this Article 10, the conduct of
voting, the validity and effectiveness of any proxy, and the determination of
any controversies, votes or challenges arising in connection with or during the
meeting or voting. The Chairman of the Board shall preside at, and the secretary
shall prepare minutes of, each meeting of the Member, and in the absence of
either such officer, his duties shall be performed by the President or, in his
absence, some person or persons selected by the Board of Directors.
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SECTION 10.8 ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any annual or special meeting of the Member may be
taken without a meeting, without prior notice, and without a vote, if a consent
in writing setting forth the action so taken shall be signed by the Member.
Every written consent shall bear the date of signature of the Member. A
telegram, telex, cablegram or similar transmission by the Member, or a
photographic, photostatic, facsimile, or similar reproduction of a writing
signed by the Member, shall be regarded as signed by the Member for purposes of
this Section 10.8. If any action by the Member is taken by written consent, any
certificate or documents filed with the Secretary of State of Delaware, if any,
as a result of the taking of the action shall state, in lieu of any statement
required by the Act concerning any vote of the Member, that written consent has
been given in accordance with the provisions of this Agreement.
SECTION 10.9 TELEPHONE AND SIMILAR MEETINGS. The Member may participate
in and hold a meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
ARTICLE 11
AMENDMENTS AND WAIVERS
SECTION 11.1 WITH MEMBER CONSENT. Except as expressly provided in
Section 11.2 or 11.3 of this Agreement, this Agreement may be modified or
amended, or any provision hereof waived, only with the written consent of the
Member.
SECTION 11.2 WITHOUT MEMBER CONSENT. The Board of Directors may,
whether with or without the consent or vote of the Member, amend or waive any
provision of this Agreement which merely (i) corrects an error or clarifies an
ambiguity in this Agreement or (ii) does not adversely affect the Member in any
material respect. The Board of Directors may, but shall not be required to,
amend Schedule I to this Agreement to reflect any additional capital
contributions.
SECTION 11.3 CERTAIN OTHER AMENDMENTS. No amendment to or waiver of any
provision of this Agreement shall be effective against the Member without the
consent or vote of the Member if such amendment or waiver would (i) cause the
Company to fail to be treated as a limited liability company under the Act or
cause the Member to become liable to third parties as the Member of the Company,
(ii) change Section 2.1 of this Agreement to increase the Member's obligations
to contribute to the capital of the Company, or (iii) change Article 4 of this
Agreement to affect adversely the Member's rights to exculpation or
indemnification.
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ARTICLE 12
DISSOLUTION AND TERMINATION
SECTION 12.1 DISSOLUTION.
(a) The Company shall be dissolved upon the first to occur of
the following events:
(i) the election of the Member to dissolve the
Company; or
(ii) the entry of a decree of judicial dissolution
under Section 18-802 of the Act.
(b) The "Bankruptcy" (as defined in Sections 18-101(1) of the
Act) of the Member shall not cause the Member to cease to be a member
of the Company and upon the occurrence of such an event, the business
of the Company shall continue without dissolution.
SECTION 12.2 ACCOUNTING ON DISSOLUTION. Following the dissolution of
the Company pursuant to Section 12.1 of this Agreement, the books of the Company
shall be closed, and a proper accounting of the Company's assets, liabilities,
and operations shall be made by the Member, all as of the most recent
practicable date. The Member shall be appointed to serve as the liquidator of
the Company. The expenses incurred by the liquidator in connection with the
dissolution, liquidation, and termination of the Company shall be borne by the
Company.
SECTION 12.3 TERMINATION. As expeditiously as practicable, but in no
event later than one (1) year (except as may be necessary to realize upon any
material amount of property that may be illiquid), after the dissolution of the
Company pursuant to Section 12.1 of this Agreement, the liquidator shall cause
the Company to pay the current liabilities of the Company and (i) establish a
reserve fund (which may be in the form of cash or other property, as the
liquidator shall determine) for any and all other liabilities, including
contingent liabilities, of the Company in a reasonable amount determined by the
liquidator to be appropriate for such purposes or (ii) otherwise make adequate
provision for such other liabilities. To the extent that cash required for the
foregoing purposes is not otherwise available, the liquidator may sell property,
if any, of the Company for cash. Thereafter, all remaining cash or other
property, if any, of the Company shall be distributed to the Member in
accordance with the provisions of Section 5.1 of this Agreement. At the time
final distributions are made in accordance with Section 5.1 of this Agreement, a
certificate of cancellation shall be filed in accordance with the Act, and the
legal existence of the Company shall terminate, but if at any time thereafter
any reserved cash or property is released because in the judgment of the
liquidator the need for such reserve has ended, then such cash or property shall
be distributed in accordance with Section 5.1 of this Agreement.
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SECTION 12.4 NO NEGATIVE CAPITAL ACCOUNT OBLIGATION. Notwithstanding
any other provision of this Agreement, in the event the Member has a negative
capital account upon final distribution of all cash and other property of the
Company, the Member shall not be required to restore such negative account to
zero.
SECTION 12.5 NO OTHER CAUSE OF DISSOLUTION. The Company shall not be
dissolved, or its legal existence terminated, for any reason whatsoever except
as expressly provided in this Article 12.
SECTION 12.6 MERGER. The Company may, with the written consent or vote
of the Member, adopt a plan of merger and engage in any merger permitted by
applicable law.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 WAIVER OF PARTITION. The Member hereby irrevocably waives
any and all rights that it may have to maintain an action for partition of any
of the Company's property.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Member and the Company with respect to the subject matter
hereof and supersedes any prior agreement or understanding among them with
respect to such subject matter.
SECTION 13.3 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid under the applicable law of any jurisdiction, the remainder of this
Agreement or the application of such provision to other persons or circumstances
or in other jurisdictions shall not be affected thereby. Also, if any provision
of this Agreement is invalid or unenforceable under any applicable law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such law. Any provision
hereof that may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
SECTION 13.4 NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if sent by overnight courier, hand delivered, mailed (first class
registered mail or certified mail, postage prepaid), or sent by telex or
telecopy if to the Member, at the addresses or telex or facsimile numbers set
forth on Schedule I hereto, and if to the Company, at the address of its
principal place of business at 000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000
(fax 314/000-0000), or to such other address as the Company or the Member shall
have last designated by notice to the Company and all other parties hereto in
accordance with this Section 13.4. Notices sent by hand delivery shall be deemed
to have been given when
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received; notices mailed in accordance with the foregoing shall be deemed to
have been given three days following the date so mailed; notices sent by telex
or telecopy shall be deemed to have been given when electronically confirmed;
and notices sent by overnight courier shall be deemed to have been given on the
next business day following the date so sent.
SECTION 13.5 GOVERNING LAWS. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
(without regard to principles of conflicts of laws).
SECTION 13.6 SUCCESSORS AND ASSIGNS. Except as otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
Member and its successors and permitted assigns.
SECTION 13.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall constitute one and the same instrument.
SECTION 13.8 HEADINGS. The section and article headings in this
Agreement are for convenience of reference only and shall not be deemed to alter
or affect the meaning or interpretation of any provision hereof.
SECTION 13.9 OTHER TERMS. All references to "Articles" and "Sections"
contained in this Agreement are, unless specifically indicated otherwise,
references to articles, sections, subsections, and paragraphs of this Agreement.
Whenever in this Agreement the singular number is used, the same shall include
the plural where appropriate (and vice versa), and words of any gender shall
include each other gender where appropriate. As used in this Agreement, the
following words or phrases shall have the meanings indicated: (i) "or" shall
mean "and/or"; (ii) "day" shall mean a calendar day; (iii) "including" or
"include" shall mean "including without limitation"; and (iv) "law" or "laws"
shall mean statutes, regulations, rules, judicial orders, and other legal
pronouncements having the effect of law.
SECTION 13.10 POWER OF ATTORNEY. By execution of this Agreement, the
Member hereby makes, constitutes, and appoints the Board of Directors, with full
power of substitution and re-substitution in the Board of Directors (in its sole
discretion), the Member's true and lawful attorney-in-fact ("Attorney") for and
in the Member's name, place, and stead and for his use and benefit, to prepare,
execute, certify, acknowledge, swear to, file, deliver, or record any or all of
the following:
(a) the Certificate of Formation or any other agreement,
certificate, report, consent, instrument, filing, or writing made by or
relating to the Company that the Attorney deems necessary, desirable,
or appropriate for any lawful purpose, including (i) organizing the
Company under the Act, (ii) admitting the Member with respect to the
Company, (iii) pursuing or effecting any rights or remedies available
under this Agreement or otherwise, (iv) qualifying the Company to do
business in any
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jurisdiction, and (v) complying with any law, agreement, or obligation
applicable to the Company;
(b) any agreement, certificate, report, consent, instrument,
filing, or writing made by or relating to the Company that the Attorney
deems necessary, desirable, or appropriate to effectuate the business
purposes of, or the dissolution, termination, or liquidation of, the
Company pursuant to applicable law or the respective terms of this
Agreement; and
(c) any amendment to or modification or restatement of this
Agreement, the Certificate of Formation, or any other agreement,
certificate, report, consent, instrument, filing, or writing of any
type described in subsection (a) or (b) of this Section 13.10, provided
that any amendment of or modification to this Agreement shall first
have been adopted in accordance with Article 13 of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has executed this Limited Liability
Company Agreement effective as of the Effective Date.
THERMADYNE HOLDINGS CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXXX
-------------------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Vice President,
General Counsel and Corporate Secretary
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SCHEDULE I
INITIAL CAPITAL
MEMBER AND ADDRESS CONTRIBUTION
Thermadyne Holdings Corporation $ 1,000.00
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax: 314/000-0000
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SCHEDULE II
OFFICER OFFICE
Xxxxxxx X. Xxxxxx Chairman of the Board, President
and Chief Executive Officer
Xxxxx X. Xxxx Senior Vice President and
Chief Financial Officer
Xxxxxxxxx X. Xxxxxxxxx Vice President, General
Counsel and Corporate Secretary
Xxxxxx X. Xxxxx Vice President, Human Resources
Xxxxxx X. Xxxxxx Vice President and Corporate
Controller
