Exhibit 3(eee)
LIMITED LIABILITY COMPANY
AGREEMENT
OF
NCA RESOURCES DEVELOPMENT COMPANY
LLC
This Limited Liability Company
Agreement (this “Agreement”) of NCA Resources
Development Company LLC (the “Company”), is entered
into by Luminant Enterprise Holdings Company LLC, a Delaware
limited liability company, as the sole member of the Company (the
“Member”), for the purpose of governing the affairs of
the Company.
The Member, by execution of this
Agreement, (i) hereby forms a limited liability company
pursuant to and in accordance with the Delaware Limited Liability
Company Act, as amended from time to time (the “Act”),
and this Agreement, and (ii) hereby agrees as
follows:
ARTICLE I
LIMITED LIABILITY
COMPANY
Section 1.1 Name . The
name of the limited liability company formed hereby is NCA
Resources Development Company LLC.
Section 1.2 Principal
Business Office . The principal business office of the Company
shall be located at 1601 Bryan Street, Dallas, Texas 75201, or such
other location as may hereafter be determined by the
Company.
Section 1.3 Registered
Office . The address of the registered office of the Company in
the State of Delaware is c/o The Corporation Trust Company, 1209
Orange Street, Wilmington, New Castle County, Delaware
19801.
Section 1.4 Registered
Agent . The name of the registered agent of the Company for
service of process on the Company in the State of Delaware is The
Corporation Trust Company.
Section 1.5 Foreign
Qualifications . An officer of the Company shall execute,
deliver and file any certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do
business in any foreign jurisdiction in which the Company may wish
to conduct business.
Section 1.6 Purpose .
The purpose of the Company is to engage in any lawful business or
activity for which a limited liability company may be organized
under the Act.
Section 1.7 Powers . The
Company (i) shall have and exercise all powers necessary,
convenient or incidental to accomplish its purposes as set forth in
Section 1.6 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed
pursuant to the Act.
Section 1.8 Capital
Contributions . The Member has made certain capital
contributions to the Company, and may make such other capital
contributions to the Company as it may determine appropriate in its
sole discretion. The provisions of this Agreement, including this
Section 1.8, are intended solely to benefit the Member and, to
the fullest extent permitted by law, shall not be construed as
conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of
this Agreement) and the Member shall have no duty or obligation to
any creditor of the Company to make any contribution to the Company
or to issue any call for capital pursuant to this
Agreement.
Section 1.9 Allocation of
Profits and Losses. The Company’s profits and losses
shall be allocated to the Member; provided, however, that no
allocation of any loss to the Member shall create any obligation on
the Member to make any capital contribution to the Company to
offset such loss (or otherwise), the Member having no obligation to
make any such capital contribution, as provided in Section 1.8
above.
Section 1.10
Distributions . Distributions in any form, including cash or
other assets, shall be made to the Member at the times and in the
aggregate amounts determined by the Board of Managers.
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not be required to make a distribution
to any Member on account of its interest in the Company if such
distribution would violate the Act or any other applicable
law.
Section 1.11 Other
Business . The Member and any Affiliate of the Member may
engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description,
independently or with others. The Company shall not have any rights
in or to such independent ventures or the income or profits
therefrom by virtue of this Agreement.
When used in this Agreement,
“Affiliate” means, with respect to any individual,
corporation, partnership, joint venture, limited liability company,
limited liability partnership, association joint-stock company,
trust, unincorporated organization, or other organization, whether
or not a legal entity, or any governmental authority
(“Person”), any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common
Control with such Person, and “Control” means the
possession, directly or indirectly, or the power to direct or cause
the direction, of the management or policies of a Person, whether
through the ownership of voting securities or general partnership
or managing member interests, by contract or otherwise.
“Controlling” and “Controlled” have
correlative meanings. Without limiting the generality of the
foregoing, a Person shall be deemed to Control any other Person in
which it owns, directly or indirectly, a majority of the ownership
interests.
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ARTICLE II
MANAGEMENT
Section 2.1 Board of
Managers .
(a) Management of the Company shall
be vested in a Board of Managers. The Board of Managers shall have
the power to do any and all acts necessary, convenient or
incidental to or for the furtherance of the purposes described
herein, including all powers, statutory or otherwise, possessed by
managers of a limited liability company under the laws of the State
of Delaware. The number of managers shall be determined from time
to time by the Member or the resolution of the Board of Managers.
The Member hereby designates two (2) as the number of initial
Managers and hereby designates Jeffrey S. Agee and Michael P.
Childers as the initial Managers.
(b) Vacancies on the Board of
Managers from whatever cause shall be filled by the remaining
managers or, if there be none, by the Member. Managers shall serve
until they resign or are removed. Managers may be removed with or
without cause by the Member.
(c) The Board of Managers of the
Company may hold meetings, both regular and special, within or
outside the State of Delaware. Regular meetings of the Board of
Managers may be held without notice at such times and at such
places as shall from time to time be determined by the Board of
Managers. Special meetings of the Board of Managers may be called
by the Chairman of the Board, if any, or by the President on not
less than twenty-four (24) hours notice to each Manager by
telephone, facsimile, mail, telegram or any other means of
communication, and special meetings shall be called by the
President or the Secretary in like manner and with like notice upon
the written request of any one or more of the Managers.
(d) At all meetings of the Board of
Managers, a majority of the Managers shall constitute a quorum for
the transaction of business and, except as otherwise provided in
any other provision of this Agreement, the act of a majority of the
Managers present at any meeting at which there is a quorum shall be
the act of the Board of Managers. If a quorum shall not be present
at any meeting of the Board of Managers, the Managers present at
such meeting may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall
be present. Any action required or permitted to be taken at any
meeting of the Board of Managers or of any committee thereof may be
taken without a meeting if at least a majority of the members of
the Board of Managers or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Managers or such
committee and a copy of such writing or writings is promptly
furnished to any member of the Board of Managers or such committee,
as the case may be, who did not sign such writing or
writings.
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(e) The Managers, or any committee
designated by the Board of Managers, may participate in a meeting
of the Board of Managers, or of such committee, by means of
telephone conference or similar communications equipment, and such
participation in a meeting shall constitute presence in person at
such meeting. If all the participants are participating by
telephone conference or similar communications equipment, the
meeting shall be deemed to be held at the principal place of
business of the Company.
(f) The Board of Managers may, with
the unanimous approval of the Managers, designate one or more
committees, with each committee to consist of one or more of the
Managers of the Company. The Board of Managers may, with the
unanimous approval of the Managers, designate one or more Managers
as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of such committee. Any such
committee, to the extent provided in the resolution of the Board of
Managers, shall have and may exercise all of the powers and
authority of the Board of Managers in the management of the
business and affairs of the Company. Each committee shall have such
name as may be determined from time to time by resolution adopted
by the Board of Managers. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Managers when
required by the Board of Managers.
Section 2.2 Officers;
Delegation. The Company shall have such officers and employees
as are designed within this Agreement or as subsequently designed
by the Board of Managers. The Board of Managers may, from time to
time as
