Exhibit 3.2
Execution Version
LIMITED LIABILITY COMPANY AGREEMENT
OF
MN8 ENERGY HOLDINGS LLC
This Limited Liability Company Agreement (this “Agreement”) of MN8 Energy Holdings LLC, a Delaware limited liability company (the “LLC”), dated as of December 19, 2023, is entered into by MN8 Energy LLC, a Delaware limited liability company, as the sole member (the “Member”).
The Member, by the filing of a Certificate of Formation with the Secretary of State of Delaware (the “Certificate”) on December 19, 2023, hereby forms a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act, (6 Del.C. §18-101, et seq.) as amended from time to time (the “Act”), and hereby agrees as follows:
1. Name.
(a) The name of the limited liability company is “MN8 Energy Holdings LLC”. The business of the LLC may be conducted under any other name deemed necessary or desirable by the Member.
(b) The Member hereby forms the LLC as a limited liability company pursuant to the provisions of the Act and acknowledges that the rights, duties and liabilities of the Member shall be as provided in the Act except as provided in this Agreement.
2. Purpose. The purpose and nature of the business to be conducted by the LLC shall be to engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that lawfully may be conducted by a limited liability company organized pursuant to the Act and, in connection therewith, to exercise all of the rights and powers conferred upon the LLC pursuant to the agreements relating to such business activity, and to do anything necessary or appropriate to effect the foregoing.
3. Registered Office; Registered Agent. The address of the registered office of the LLC in the State of Delaware is c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The name and address of the registered agent of the LLC for service of process on the LLC in the State of Delaware are Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808.
4. Principal Office. The principal office of the LLC shall be at such location as the LLC may from time to time determine in its discretion. The business of the LLC, or any part thereof, may, however, be conducted elsewhere.
5. Member. The name and the mailing address of the Member are as set forth in Annex A. The Member is hereby admitted as the sole member of the LLC upon its execution of this Agreement. The Member shall have a limited liability company interest in the LLC and the
rights, powers, duties and obligations as provided in the Act, except, to the extent permitted by the Act, as otherwise provided herein.
6. Management.
(a) The Member shall have the sole right to manage the business and affairs of the LLC and all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the LLC, including without limitation, the right to sell all or substantially all the assets of the LLC. All determinations, decisions and actions made or taken by the Member in accordance with this Agreement shall be conclusive and absolutely binding upon the LLC, the Member and the Member’s successors, assigns and personal representatives. The LLC is authorized to execute, deliver and perform its obligations under, and the Member on behalf of the LLC is authorized to execute and deliver, any and all agreements, deeds, instruments, receipts, certificates and other documents, and to take all such other action, without any vote or consent of any other person, notwithstanding any other provision of this Agreement.
(b) The Member may (but need not) adopt procedures relating to meetings of the Member and the taking of actions and may (but need not) exercise its authority hereunder by resolution.
(c) The Member may appoint one or more officers of the LLC (each, an “Officer”). The Officers shall initially be set forth on Annex B. Two or more offices may be held by the same person. Each such Officer shall have delegated to him or her the authority and power to execute and deliver on behalf of the Company (and to cause the Company to perform) any and all such contracts, certificates, agreements, instruments and other documents, and to take any such action, as the Member deems necessary or appropriate, all as may be set forth in a written delegation of authority executed by the Member. The Officers shall serve at the pleasure of the Member, and the Member may remove any person as an Officer, appoint additional persons as Officers and add or remove from the delegation of authority of an Officer as the Member deems necessary or desirable.
7. Capital Contributions.
(a) The Member shall have no obligation to make any capital contributions to the LLC, but may make such capital contributions to the LLC as it may deem necessary or advisable in connection with the business of the LLC from time to time.
(b) The provisions of this Section 7 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 LLC other than the Member (and no such creditor of the LLC shall be a third party beneficiary of this Agreement). The Member shall not have a duty or obligation to any creditor of the LLC to make any contribution to the LLC or to issue any call for capital pursuant to this Section 7.
8. Percentage Interest. The limited liability company interest of the Member in the LLC shall be 100%.
9. Distributions.
(a) The Member shall not be entitled to interest on its capital contributions to the LLC or have the right to distributions or the return of any contribution to the capital of the LLC, except for distributions in accordance with this Section 9 or upon dissolution of the LLC in accordance with Section 14. To the fullest extent permitted by law, the Member shall not be liable for the return of any such amounts. Notwithstanding any provision in this Agreement to the contrary, the LLC shall not make a distribution to the Member on account of its interest in the LLC if such distribution would violate the Act or other applicable law.
(b) Distributions shall be made either in cash or in kind to the Member at the times and in the aggregate amounts determined by the Member.
10. Tax Characterization.
(a) The LLC is intended to be treated, for U.S. federal income tax purposes, as an association taxable as a corporation and will file an election to that effect on Form 8832 effective as of the date of its formation.
11. Assignments and Transfers of Interests. The Member may transfer all or any portion of its limited liability company interest in the LLC and any and all rights and/or obligations associated therewith to any person at any time. The transferee of an interest in the LLC shall be admitted to the LLC as a member of the LLC upon its execution of a counterpart signature page to this Agreement, or some other written instrument reasonably acceptable to the Member in which it agrees to be bound by the terms of this Agreement. If the transferring Member is the sole member and transfers all of its interest in the LLC, such admission shall be deemed effective immediately prior to the transfer and immediately following such admission, the transferor Member shall cease to be a member of the LLC.
12. Admission and Withdrawal of Additional Members. One or more additional member(s) may be admitted to the LLC with the written consent of the Member. The Member may resign from the LLC at any time. Upon the admission to the LLC of any additional member(s), if the LLC then has two or more members, the members shall cause this Agreement to be amended and restated to reflect the admission of such additional member(s) and the initial capital contribution, if any, of such additional member(s) and the intention of the members to cause the LLC to be classified as a partnership for United States federal, state and local income tax purposes, and to include such other provisions as the members may agree to reflect the change of status of the LLC from a single member limited liability company to a limited liability company with two or more members.
13. Liability of the Member. The Member, in its capacity as member of the LLC, shall have no liability for the obligations or liabilities of the LLC except to the extent provided in the Act and applicable law. Nothing expressed in or implied by this Agreement shall be construed to confer upon or to give any person, except the Member, any rights or remedies under or by reason of this Agreement.
14. Dissolution.
(a) Subject to the occurrence of an event of dissolution pursuant to Section 14(b), the LLC shall have perpetual existence.
(b) The LLC shall dissolve, and its affairs shall be wound up, upon the first to occur of the following:
(i) the written consent of the Member,
(ii) at any time there is no member of the LLC unless the LLC is continued in accordance with the Act, or
(iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
(c) In the event of dissolution, the LLC shall wind up its affairs (including the sale of the assets of the LLC) in an orderly manner, and the assets of the LLC shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act. As part of the winding up process, any amounts permitted to be distributed to the Member in accordance with Section 18-804 of the Act shall be distributed to the Member.
15. Indemnification. To the fullest extent permitted by law, a Covered Person (as defined below) shall have no personal liability to the LLC or its members for monetary damages for breach of any fiduciary duty or breach of contract as a Covered Person; provided that the foregoing provision shall not eliminate the liability of a Covered Person for loss or damage that is ultimately determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such loss or damage is due to an act or omission of such a Covered Person that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. To the fullest extent permitted by law, the LLC shall (a) indemnify any person or such person’s heirs, distributees, next of kin, successors, appointees, executors, administrators, legal representatives or assigns who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was a Member, manager, director, officer, employee or agent of the LLC or is or was serving at the request of the LLC or its Member as a manager, director, officer, employee or agent of another corporation, limited liability company, limited or general partnership, joint venture, trust or other enterprise, domestic or foreign (a “Covered Person”), against expenses, attorneys’ fees, court costs, judgments, fines, amounts paid in settlement and other losses actually and reasonably incurred by such person in connection with such action, suit or proceeding, and (b) subject to receipt of a written undertaking by, or on behalf of, such Covered Person to repay such expenses to the extent that it shall be determined ultimately that such Covered Person is not entitled to be indemnified hereunder, advance expenses incurred by a Covered Person in defending such civil or criminal action, suit or proceeding to the full extent authorized or permitted by the laws of the State of Delaware; provided that a Covered Person shall not be so indemnified with respect to any matter as to which there has been a Final Adjudication that such Covered Person’s acts or failure to act constituted a bad faith violation of the implied contractual covenant of good faith and fair dealing. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person otherwise existing at law or in equity to the LLC or its members, are agreed by the Member to replace such other duties and liabilities of each such Covered Person.
16. Amendments. Except as otherwise provided in this Agreement or in the Act, this Agreement may only be amended by the written consent of the Member to such effect.
17. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors, executors, administrators, legal representatives, heirs and legal assigns and shall inure to the benefit of the parties and, except as otherwise provided herein, their respective successors, executors, administrators, legal representatives, heirs and legal assigns.
18. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, without giving effect to principles of conflicts of laws, and all rights and remedies shall be governed by those laws. The Member intends the provisions of the Act to be controlling as to any matters not set forth in this Agreement.
19. No Benefit of Third Parties. The provisions of this Agreement are intended only for the regulation of relations among the Member and former or prospective members of the LLC. This Agreement is not intended for the benefit of any other person.
20. Separability of Provisions. Each provision of this Agreement shall be considered separable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.
21. Counterparts. This Agreement may be executed in any number of counterparts, including by facsimile or other electronic signature. All counterparts shall be construed together and shall constitute one instrument.
[Signature Page to Follow]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date first written above.
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| MEMBER: | |
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| MN8 ENERGY LLC | |
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| By: | /s/ Ashlee Effler | |
| Name: Ashlee Effler | |
| Title: Senior Vice President, General Counsel | |
SIGNATURE PAGE TO
LIMITED LIABILITY COMPANY AGREEMENT OF
MN8 ENERGY HOLDINGS LLC
ANNEX A
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| Name and Address of the Member |
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| MN8 Energy LLC |
| 1155 Avenue of the Americas, 27th Floor |
| New York, NY 10036 |
| Attn: General Counsel |
ANNEX B
INITIAL OFFICERS
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Officer | | Position |
Jon Yoder | | President and Chief Executive Officer |
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David Callen | | Senior Vice President, Chief Financial Officer |
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David Fernandez | | Senior Vice President, Chief Operating Officer |
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Jordan Meer | | Senior Vice President, Chief Strategy and Investment Officer |
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Moe Hanifi | | Senior Vice President, Head of Revenue and Commodities |
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Ricardo Fabre | | Senior Vice President, Head of Asset Operations |
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Pedro Garcia Hrdy | | Senior Vice President, Head of Technical Operations |
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Patrick McAlpine | | Senior Vice President, Chief Administrative Officer |
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Ashlee Effler | | Senior Vice President, General Counsel |
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Tim Seck | | Senior Vice President, Head of Project Development |