LimitedLiabilityCoAgreement有限责任公司新版章程B.docx

【英文名称】
Limited Liability Co. Agreement
【汉字名称】
有限责任企业章程
【协议类型】
商业文本[Business Formation] → 股东协议[Limited Liability Company Agreements]

正文
简单编辑

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT
OF

AAA LLC

dated as of _________(M,D,Y)

TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS

ARTICLE 2 GENERAL
2.1 Formation
2.2 Principal Office
2.3 Registered Office and Registered Agent
2.4 Purpose of the Company
2.5 Date of Dissolution
2.6 Qualification
2.7 Members
2.8 Reliance by Third Parties

ARTICLE 3 CAPITALIZATION OF THE COMPANY
3.1 Initial Capital Contributions
3.2 Additional Capital Contributions
3.3 Loans
3.4 Maintenance of Capital Accounts
3.5 Capital Withdrawal Rights, Interest and Priority

ARTICLE 4 DISTRIBUTIONS
4.1 Distributions of Available Cash
4.2 Persons Entitled to Distributions
4.3 Limitations on Distributions

ARTICLE 5 ALLOCATIONS
5.1 Profits
5.2 Losses
5.3 Regulatory Allocations
5.4 Tax Allocations: Code Section 704(c)
5.5 Change in Percentage Interests
5.6 Withholding

ARTICLE 6 MEMBERS' MEETINGS
6.1 Meetings of Members; Place of Meetings
6.2 Quorum; Voting Requirement
6.3 Proxies
6.4 Action Without Meeting
6.5 Notice
6.6 Waiver of Notice

ARTICLE 7 MANAGEMENT AND CONTROL.
7.1 Board of Directors
7.2 Meetings of the Board
7.3 Quorum and Acts of the Board
7.4 Electronic Communications
7.5 Committees of Directors
7.6 Compensation of Directors
7.7 Directors as Agents
7.8 Officers; Agents
7.9 Matters Requiring Member Approval

ARTICLE 8 LIABILITY AND INDEMNIFICATION
8.1 Limitation on Liability of Members, Directors and Officers
8.2 Indemnification

ARTICLE 9 TRANSFERS OF MEMBERSHIP INTERESTS..
9.1 General Restrictions
9.2 Permitted Transferees
9.3 Substitute Members
9.4 Effect of Admission as a Substitute Member
9.5 Consent
9.6 No Dissolution
9.7 Additional Members.
9.8 Right of First Refusal
9.9 Registration Rights Agreement
9.10 Transfer to GGG

ARTICLE 10 DISSOLUTION AND TERMINATION
10.1 Events Causing Dissolution
10.2 Final Accounting
10.3 Distributions Following Dissolution and Termination
10.4 Termination of the Company
10.5 No Action for Dissolution

ARTICLE 11 TAX MATTERS..
11.1 Tax Matters Member
11.2 Certain Authorizations
11.3 Indemnity of Tax Matters Member
11.4 Information Furnished
11.5 Notice of Proceedings, etc
11.6 Notices to Tax Matters Member
11.7 Preparation of Tax Returns
11.8 Tax Elections
11.9 Taxation as a Partnership

ARTICLE 12 ACCOUNTING AND BANK ACCOUNTS
12.1 Fiscal Year and Accounting Method
12.2 Books and Records
12.3 Delivery to Members; Inspection
12.4 Financial Statements
12.5 Filings
12.6 Non-Disclosure

ARTICLE 13 NON-COMPETITION AND NON-SOLICITATION.
13.1 Non-Competition
13.2 Non-Solicitation
13.3 Damages
13.4 Limitations

ARTICLE 14 MISCELLANEOUS
14.1 Waiver of Default
14.2 Amendment
14.3 No Third Party Rights
14.4 Severability
14.5 Nature of Interest in the Company
14.6 Binding Agreement
14.7 Headings
14.8 Word Meanings
14.9 Counterparts
14.10 Entire Agreement
14.11 Partition
14.12 Governing Law; Consent to Jurisdiction and Venue
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AAA LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this "AGREEMENT") of AAA LLC, a _________(STATE) limited liability company (the "COMPANY"), is made and entered into as of the _________ day of _________(M,Y) by and among the Persons executing this Agreement on the signature pages hereto as a member (together with such other Persons that may hereafter become members as provided herein, referred to collectively as the "MEMBERS" or, individually, as a "MEMBER").

WHEREAS, CCC Inc., a _________(STATE) corporation ("BBB, INC."), as the Company's initial member, formed the Company on _________(M,D,Y) as a limited liability company under the Act (as defined below) by causing a certificate of formation of the Company to be filed with the _________ Secretary of State and has made a capital contribution of the LLC Incentive Distribution Rights (as defined in the Transfer Agreement (as hereinafter defined)) to the Company;

WHEREAS, BBB, Inc. and the other Members desire to enter into this Agreement pursuant to which such other Members shall be admitted to the Company;

WHEREAS, all of the property used in the trade or business of BBB, Inc. as General Partner (as defined in the BBB, L.P. Partnership Agreement) associated with the headquarter employees described in Section 1(a)(ii) of that certain Pension and Employee Benefits Assumption and Transition Agreement, dated as of the date hereof, by and among BBB, BBB, Inc. and the Company (the "TRANSITION AGREEMENT") has been transferred by BBB to the Company;

WHEREAS, in connection with the Contribution Agreement, the Company will have succeeded to the management and business activities formerly performed by BBB, Inc. as General Partner (as defined in the BBB, L.P. Partnership Agreement).

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties agree as follows:
ARTICLE 1

DEFINITIONS
As used herein, the following terms shall have the following meanings, unless the context otherwise requires:

"ACCEPTANCE NOTICE" shall have the meaning set forth in Section 9.8(b).

"ACT" means the _________ Limited Liability Company Act, 6 Del. C. Section 18-101, et seq., as amended from time to time.

"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to a Member, the deficit balance, if any, in such Member's Capital Account as of the end of the relevant Taxable Year, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to Regulation Sections 1.704- 1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704- 1(b)(2)(ii)(d)(6).
"AFFILIATE" means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

"AGREEMENT" shall have the meaning set forth in the preamble hereof, as the same may be amended from time to time in accordance with the terms hereof.

"AUTHORIZED REPRESENTATIVE" shall have the meaning set forth in Section 6.1.

"AVAILABLE CASH" means, with respect to a fiscal quarter, all cash and cash equivalents of the Company at the end of such quarter less the amount of cash reserves that is necessary or appropriate in the reasonable discretion of the Board to (a) provide for the proper conduct of the business of the Company (including reserves for future capital expenditures and for anticipated future credit needs of the Company) subsequent to such quarter or (b) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which the Company is a party or by which it is bound or its assets or Property is subject; provided, however, that disbursements made by the Partnership to the Company or cash reserves established, increased or reduced after the expiration of such quarter but on or before the date of determination of Available Cash with respect to such quarter shall be deemed to have been made, established, increased or reduced, for purposes of determining Available Cash, during such quarter if the Board so determines in its reasonable discretion.

"BOARD" means the Board of Directors of the Company.

"BUSINESS" means all Hydrocarbon gathering, transportation, terminalling, storage, and marketing and all operations related thereto, including, without limitation, (a) the acquisition, construction, installation, maintenance or remediation and operation of pipelines, gathering lines, compressors, facilities, storage facilities and equipment, and (b) the gathering of Hydrocarbons from fields, interstate and intrastate transportation by pipeline, trucks or barges, tank storage of Hydrocarbons, transferring Hydrocarbons from pipelines and storage tanks to trucks, barges or other pipelines, acquisition of Hydrocarbons at the well or bulk purchase at pipeline and terminal facilities and subsequent resale thereof.

"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in the City of New York.

"CAPITAL ACCOUNT" means, with respect to any Member, a separate account established by the Company and maintained for each Member in accordance with Section 3.4 hereof.

"CAPITAL CONTRIBUTION" means, with respect to any Member, the amount of money and the initial Gross Asset Value of any Property (other than money) contributed to the Company with respect to the interests purchased by such Member pursuant to the terms of this Agreement, in return for which the Member contributing such capital shall receive a Membership Interest.

"CAUSE" shall have the meaning set forth in the Flores Employment Agreement.

"CERTIFICATE" means the Certificate of Formation of the Company filed with the Secretary of State of _________, as amended or restated from time to time.

"CODE" means the United States Internal Revenue Code of 1986, as amended.

"COMPANY" shall have the meaning set forth in the preamble hereof.

"COMPANY AFFILIATE" shall have the meaning set forth in Section 8.2.

"COMPENSATORY UNITS" shall have the meaning set forth in Section 3.4(v).

"CREDIT AGREEMENTS" shall have the meaning set forth in the Transfer Agreement, as such credit agreements may be amended, modified or supplemented from time to time, including, without limitation, amendments, modifications, supplements and restatements thereof giving effect to increases, renewals, extensions, refundings, deferrals, restructurings, replacements or refinancings of, or additions to, the arrangements provided in such credit agreements.

"DEPRECIATION" means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such Taxable Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Taxable Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such Taxable Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Taxable Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.

"DIRECTORS" shall have the meaning set forth in Section 7.1(a).

"FFF" means FFF, L.P., a Texas limited partnership.

"EMPLOYEES" shall have the meaning set forth in Section 13.2.

"ENCAP" shall have the meaning set forth in Section 13.1.

"ENCUMBRANCE" means any security interest, pledge, mortgage, lien (including, without limitation, environmental and tax liens), charge, encumbrance, adverse claim, any defect or imperfection in title, preferential arrangement or restriction, right to purchase, right of first refusal or other burden or encumbrance of any kind, other than those imposed by this Agreement.

"FLORES EMPLOYMENT AGREEMENT" means the Employment Agreement dated _________(M,D,Y) between JCF and BBB.

"FIRST REFUSAL NOTICE" shall have the meaning set forth in Section 9.8(a).

"JJJ" shall have the meaning set forth in Section 9.1.

"GENERAL PARTNER'S PERCENTAGE" means the "Percentage Interest" as to the
"General Partner" (with respect to its "General Partner Interest") as such terms are defined in the BBB L.P. Partnership Agreement.

"GOOD REASON" shall have the meaning set forth in the Flores Employment Agreement.

"GROSS ASSET VALUE" means with respect to any asset, the asset's adjusted basis for federal income tax purposes, except as follows and as otherwise provided in Section 3.2(b):
(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as reasonably determined by the Board; provided, however, that the initial Gross Asset Values of the assets contributed to the Company pursuant to Section 3.1 hereof shall be as set forth in such section or the schedule referred to therein;
(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values (taking Code Section 7701(g) into account), as reasonably determined by the Board as of the following times: (i) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for an interest in the Company; and (iii) the liquidation of the Company within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g); and
(c) The Gross Asset Value of any item of Company assets distributed to any Member shall be adjusted to equal the gross fair market value (taking Code Section 7701(g) into account) of such asset on the date of distribution as reasonably determined by the Board.
If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (b), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Profits and Losses.

"HYDROCARBONS" means crude oil, natural gas, casinghead gas, condensate, sulphur, natural gas liquids, plant products, liquefied petroleum gas and other liquid or gaseous hydrocarbons produced in association therewith, including, without limitation, coalbed methane and gas and CO\\2\\.

"INDEPENDENT DIRECTOR" means a Director who is eligible to serve on the Conflicts Committee (as defined, and provided for, in the BBB, L.P.
Partnership Agreement) and is otherwise independent as defined in Sections 303.01(B)(2)(a) and (3) or any successor provisions of the listing standards of the New York Stock Exchange.

"INITIAL CAPITAL CONTRIBUTION DATE" means the earlier to occur of (i) the Closing Date (as defined in the Transfer Agreements), or (ii) such date as may be determined by the Board upon not less than three Business Days' notice to the Members of such date.

"INITIAL DESIGNATING MEMBERS" means BBB, Inc., FFF, EEE and DDD.

"INITIAL DIRECTORS" shall have the meaning set forth in Section 7.1(a)(i).

"INITIAL MEMBERS" me