Exhibit 3.6
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
ACQUISITION NO. 5 LLC
This Amended and Restated Operating
Agreement (this “ Agreement ”) of Acquisition
No. 5 LLC, a Delaware limited liability company (the “
Company ”), is made, entered into and effective as of
February 25, 2008, between Acquisition Co. No. 1, a
Delaware corporation (the “ Sole Member ”), and
the Company pursuant to the Delaware Limited Liability Company Act
(the “ Act ”).
WITNESSETH
:
WHEREAS, the Company was formed as a
limited liability company pursuant to the filing of the Certificate
of Formation of Acquisition No. 5 LLC with the Secretary of
State of the State of Delaware on October 29, 1999 (the
“ Certificate ”), in accordance with the
provisions of the Act,
WHEREAS, 3038242 Nova Scotia
Company, a Nova Scotia unlimited liability company (“
NSULC ”), and the Company entered into an Operating
Agreement dated as of December 22, 1999 (as in effect on the
date hereof, the “ Prior LLC Agreement ”);
and
WHEREAS, in accordance with the Act,
the Sole Member desires to amend and restate the Prior LLC
Agreement in its entirety and to provide for, among other things,
the management of the operations and affairs of the Company and
certain other matters.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other valuable
consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the undersigned, intending to be legally bound
hereby, state the following:
ARTICLE I.
DEFINITIONS
The following terms have the
definitions hereinafter indicated whenever used in this Agreement
with initial capital letters.
“ Act ” shall
mean the Delaware Limited Liability Company Act, Title 6 of the
Delaware Code, Section 18-101, et seq ., as the
same may be amended from time to time.
“ Affiliate ”
shall mean, with respect to any specified Person, any Person that
directly or through one or more intermediaries controls or is
controlled by or is under common control with the specified Person.
As used in this definition, the term “control” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or
otherwise.
“ Agreement ”
shall mean this Amended and Restated Operating Agreement, dated as
of February 25, 2008, as originally executed and as amended,
supplemented or otherwise modified from time to time.
“ Board ” shall
have the meaning provided in Section 6.1 of this
Agreement.
“ Capital Contribution
” shall mean the total amount of money and the net fair
market value of property (as determined by the Sole Member)
contributed by the Sole Member to the Company pursuant to this
Agreement.
“ Certificate ”
shall mean the Certificate of Formation of the Company filed on
October 29, 1999 and any and all amendments thereto and
restatements thereof filed on behalf of the Company as permitted
hereunder with the Secretary of State of the State of
Delaware.
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended from time to
time, and the corresponding provisions of any future United States
federal tax law.
“ Company ” shall
mean Acquisition No. 5 LLC, a Delaware limited liability
company.
“ Managers ”
shall mean the members of the Board.
“ Distribution ”
shall mean the amount of cash and the fair market value of any
other property distributed in respect of the Sole Member’s
Membership Interest in the Company.
“ Liquidating Trustee
” shall mean an officer the Company or such other Person
appointed by the Sole Member.
“ Member ” shall
mean the Sole Member and any other Person that both acquires a
Membership Interest in the Company and is admitted to the Company
as a Member pursuant to this Agreement.
“ Membership Interest
” shall mean a Member’s entire interest (economic and
otherwise) in the Company.
“ Person ” shall
mean an individual, partnership, joint venture, association,
corporation, trust, estate, limited liability company, limited
liability partnership, or any other legal entity.
“ Prior LLC Agreement
” shall mean the Operating Agreement dated as of
December 22, 1999, by and between NSULC and the
Company.
“ Sole Member ”
shall mean Acquisition Co. No. 1.
ARTICLE II.
ORGANIZATIONAL
MATTERS
2.1. Amendment and
Restatement . This Agreement amends and restates the Prior LLC
Agreement in its entirety.
2.2. Name . The name of the
Company is Acquisition No. 5 LLC.
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2.3. Principal Place of
Business . The principal place of business of the Company is 22
Inverness Center Parkway, Third Floor, Birmingham, Alabama 35242.
The Company may locate its places of business and registered office
at any other place or places within the United States as the Board
may from time to time deem advisable.
2.4. Registered Office and
Registered Agent . The Company’s registered office shall
be at the office of its statutory agent at 1209 Orange Street,
Wilmington, Delaware 19801, and the name of its registered agent at
such address is The Corporation Trust Company. The registered
office and registered agent may be changed from time to time by
filing the address of the new registered office and/or the name of
the new registered agent with the Secretary of State of the State
of Delaware pursuant to the Act and the applicable rules
promulgated thereunder.
2.5. Term . The term of the
Company commenced on the date the Certificate was filed with the
office of the Secretary of State of the State of Delaware, and
shall continue indefinitely, unless earlier dissolved in accordance
with the provisions of this Agreement or the Act.
2.6. Tax Status . Until such
time that additional Members are admitted to the Company, the Sole
Member intends that the Company shall be treated as a disregarded
entity for U.S. and state income tax purposes, rather than an
association taxable as a corporation, pursuant to Section 7701
of the Code and the Treasury Regulations promulgated
thereunder.
2.7. Certificate . The Sole
Member is designated as an authorized person, within the meaning of
the Act, to execute, deliver and file any amendments or
restatements of the Certificate and any other certificates
necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct
business.
ARTICLE III.
BUSINESS OF
COMPANY
3.1. Purpose . The Company is
formed for the purpose of, and the nature of the business to be
conducted by the Company is, engaging in any lawful act or activity
for which limited liability companies may be formed under the Act
and engaging in any activities necessary, convenient or incidental
thereto.
3.2. Specific Powers .
Without limiting the generality of Section 3.1, the Company
shall have the power and authority to take any and all actions
necessary, appropriate, proper, advisable, incidental or convenient
to or for the furtherance of the purpose set forth in
Section 3.1, including, but not limited to, the
power:
(a) to conduct its business, carry
on its operations and have and exercise the powers granted to a
limited liability company by the Act in any country, state,
territory, district or other jurisdiction, whether domestic or
foreign;
(b) to acquire by purchase, lease,
contribution of property or otherwise, own, hold, operate,
maintain, finance, improve, lease, sell, convey, mortgage,
transfer, demolish or dispose of any real or personal
property;
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(c) to negotiate, enter into,
renegotiate, extend, renew, terminate, modify, amend, waive,
execute, perform and carry out and take any other action with
respect to contracts or agreements of any kind, including without
limitation leases, licenses, guarantees and other contracts for the
benefit of or with any Member or any Affiliate of any Member
without regard to whether such contracts may be deemed necessary,
convenient to, or incidental to the accomplishment of the purposes
of the Company;
(d) to purchase, take, receive,
subscribe for or otherwise acquire, own, hold, vote, use, employ,
sell, mortgage, lend, pledge, or otherwise dispose of, and
otherwise use and deal in and with, shares or other interests in or
obligations of domestic or foreign corporations, associations,
general or limited partnerships, trusts, limited liability
companies, or individuals or other persons or direct or indirect
obligations of the United States or of any government, state,
territory, governmental district or municipality or of any
instrumentality of any of them;
(e) to lend money, to invest and
reinvest its funds, and to accept real and personal property for
the payment of funds so loaned or invested;
(f) to borrow money and issue
evidence of indebtedness, and to secure the same by a mortgage,
pledge, security interest or other lien on the assets of the
Company;
(g) to pay, collect, compromise,
litigate, arbitrate or otherwise adjust or settle any and all other
claims or demands of or against the Company or to hold such
proceeds against the payment of contingent liabilities;
and
(h) to sue and be sued, complain and
defend, and participate in administrative or other proceedings, in
its name;
(i) to appoint employees, officers,
agents and representatives of the Company, and define their duties
and fix their compensation;
(j) to indemnify any Person in
accordance with the Act and this Agreement;
(k) to cease its activities and
cancel its Certificate;
(l) to make, execute, acknowledge
and file any and all documents or instruments necessary, convenient
or incidental to the accomplishment of the purpose of the
Company.
ARTICLE IV.
CONTRIBUTIONS
4.1. Members . The name and
business address of the sole Member of the Company are Acquisition
Co. No. 1, 22 Inverness Center Parkway, Third Floor,
Birmingham, Alabama 35242.
4.2. Capital Contributions .
The Sole Member may, but shall not be required to, make Capital
Contributions to the Company as and when requested by the
Board.
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4.3. Return of Capital
Contributions . The Sole Member shall not have the right to
demand a return of all or any part of its Capital Contributions,
and any return of the Capital Contributions of the Sole Member
shall be made solely from the assets of the Company and only in
accordance with the terms of this Agreement. No interest shall be
paid to the Sole Member with respect to its Capital
Contributions.
4.4. Withdrawal of the Member
. The Sole Member shall be entitled to voluntarily withdraw from
the Company. Upon such withdrawal, if no other Member of the
Company exists, the Company shall dissolve in accordance with the
provisions of Article VIII.
ARTICLE V.
DISTRIBUTIONS
5.1. Distributions . Subject
to
