CES GROUP, LLC LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.16
CES GROUP, LLC
This Limited Liability Company Agreement of CES Group, LLC (the “Company”) is entered into as
of October 3, 2010 by Nordyne LLC (the “Member”).
1. Name. The name of the Company is CES Group, LLC.
2. Formation, Qualification, Etc. The Company has been formed heretofore by the filing of a
Certificate of Conversion (the “Certificate”) on October 3, 2010 with the Secretary of State of the
State of Delaware (the “Secretary of State”) pursuant to the provisions of Chapter 18 of Title 6 of
the Delaware Code Annotated (as amended and in effect from time to time, the “Act”), and the
actions of any party taken in order to effect such filing are ratified and approved. The Member and
any Officers (as defined below in Section 14), and each of them, is authorized to execute, deliver
and file any other certificates (and any amendments and/or restatements thereof) necessary to
continue the good standing of the Company in the State of Delaware or for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct business.
3. Purpose. The purpose of the Company is to engage in any activity that may be lawfully
carried on by a limited liability company organized under the Act.
4. Term of the Company. The term of existence of the Company commenced on the date of the
filing of the Certificate with the Secretary of State, and shall continue until the dissolution of
the Company has been completed pursuant to Section 18 and the Certificate has been canceled in the
manner required by the Act.
5. Principal Business Office. The principal business office of the Company shall be located at such
location as is determined by the Member from time to time.
6. Registered Office and Agent in Delaware. The address of the registered office of the
Company in the State of Delaware is c/o Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000. The name of the registered agent at that address is Corporation
Service Company.
7. Limited Liability. Except as otherwise explicitly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be solely the debts, obligations and liabilities of the Company. No Indemnified Party (as defined
below in Section 16) shall be obligated personally for any such debt, obligation or liability of
the Company solely by reason of having any status which makes such party an Indemnified Party.
8. Admission of Members. The Member is admitted as a member of the Company effective upon its
execution and delivery of this Agreement. Additional members of the
Company may be admitted with the prior consent of the Member, but until any such additional
members are so admitted at a time when the Member remains a member of the Company, the Member shall
be the sole member of the Company.
9. Management.
The management of the Company shall be vested exclusively in the Member, and
the Member may exercise such management authority in its sole discretion. Without limiting the
generality of the foregoing, the Member shall have the power and authority to bind the Company and
to do any and all acts necessary, convenient or incidental to or for the furtherance of the purpose
of the Company described herein, including all powers and authorities, statutory or otherwise,
possessed by members of a limited liability company under the Act or other applicable law. Any and
all agreements, contracts and other documents or instruments affecting or relating to the business
and affairs of the Company may be executed on the Company’s behalf by the Member alone.
10. Capital Contributions. A member of the Company, including the Member, shall make
contributions to the capital of the Company in such amounts and such manner as shall be agreed in
writing between the Company and such member, and no member shall have any obligation to contribute
capital to the Company except in accordance with any such agreement.
11. Title to Assets. All assets of the Company, whether real or personal property, shall be
held in the name of the Company.
12. Allocation of Profits and Losses. The Company’s profits and losses shall be allocated to the
Member.
13. Distributions. Distributions shall be made to the Member at the times and in the aggregate
amounts determined by the Member. Notwithstanding any provision 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 applicable law.
14. Officers. The Member may, from time to time as it deems advisable, appoint officers of the
Company (the “Officers”) and assign in writing titles (including, without limitation, President,
Vice President, Secretary, and Treasurer), authorities and duties to any such person. Unless the
Member decides otherwise, if the title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 14 may be revoked at any time by the Member.
15. Other Business. The Member or its affiliates may, now or in the future, engage in or
possess an interest in other business ventures of every kind and description, independently or with
others and whether similar to or different than the activities of the Company. The Company shall
not have any rights in or to such other ventures or the income or profits therefrom by virtue of
this Agreement, the status of the Member as a member of the Company, the exclusive rights of the
Member to manage the Company as contemplated by Section 9 hereof or any other rights or obligations
of the Member.
16. Liability and Indemnification.
(a) To the maximum extent permitted by applicable law, each Indemnified Party shall not be liable
to the Company or any other party who has an interest in the Company for any act
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or omission that was suffered or taken by such Indemnified Party in good faith and that (i) is not
in material breach of this Agreement, (ii) does not constitute fraud, gross negligence, willful
misconduct or willful violation of law, and (iii) with respect to any criminal action or
proceeding, was suffered or taken without reasonable cause to believe that such Indemnified Party’s
conduct was unlawful.
(b) To the maximum extent permitted by applicable law and subject to the other limits set
forth in this Section 16, each Indemnified Party shall be fully protected and indemnified by the
Company out of Company assets against all liabilities and losses (including amounts paid in respect
of judgments, fines, penalties or, if approved by the Member, settlement of litigation, and legal
fees and expenses reasonably incurred in connection with any pending or threatened litigation or
proceeding) suffered by virtue of serving as an Indemnified Party with respect to any action or
omission suffered or taken in good faith that (i) is not in material breach of this Agreement, (ii)
does not constitute fraud, gross negligence, willful misconduct or willful violation of law, and
(iii) with respect to any criminal action or proceeding, was suffered or taken without reasonable
cause to believe that such Indemnified Party’s conduct was unlawful. The Company may (and in the
case of the Member as an Indemnified Party, will) advance expenses, including legal fees, for which
any Indemnified Party would be entitled by this Agreement to be indemnified upon receipt of an
unsecured undertaking by such Indemnified Party to repay such advances if it is ultimately
determined by a court or other tribunal of proper jurisdiction that indemnification for such
expenses is not permitted by law or authorized by this Agreement.
(c) For all purposes of this Agreement, actions or omissions taken or suffered by the Member
regarding any matter which this Agreement provides is in the discretion or sole discretion of the
Member shall be conclusively deemed not to constitute fraud, gross negligence, willful misconduct
or willful violation of law. Each Indemnified Party may consult with reputable outside legal
counsel selected by the Company, and any action or omission taken or suffered in good faith in
reliance and accordance with the opinion or advice of such counsel shall be conclusive evidence
that such action or omission (i) did not materially violate this Agreement, (ii) did not constitute
fraud, gross negligence, willful misconduct or willful violation of law, and (iii) with respect to
any criminal action or proceeding, was suffered or taken without reasonable cause to believe his
conduct was unlawful.
(d) None of the provisions of this Section 16 shall be deemed to create or grant any rights in
favor of Indemnified Parties that cannot be discharged out of the assets of the Company or in favor
of anyone other than Indemnified Parties and the other parties listed in the first sentence of
Section 16(e); this provision excludes, among others, any right of subrogation in favor of any
insurer or surety. The rights granted under this Section 16 shall survive the termination,
dissolution and winding up of the Company.
(e) The term “Indemnified Party” means the Member and each Officer. The rights of each
Indemnified Party under this Section 16 shall inure to the benefit of the successors, assigns,
heirs and personal representatives of such Indemnified Party.
However, it is expressly understood and agreed that no party who is an Officer shall have any
right of exculpation, indemnification or otherwise under this Section 16 with respect to any action
or omission taken or suffered by such party at any time after such party ceases to be an Officer
(whether the action resulting in such party ceasing to be an Officer is voluntary, involuntary or
otherwise), or in
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respect of any controversy relating in any respect to such party’s ceasing to be an Officer, or in
respect of any claim or cause of action against the Company (other than in connection with
enforcing such party’s rights against the Company under this Section 16), the Member or any
affiliate of the Member, or any of the members, partners, stockholders, directors, managers,
officers, employees, agents or other representatives of any of the foregoing.
17. Assignments. The Member may assign in whole or in part its membership interest in the
Company. If the Member transfers all of its membership interest in the Company pursuant to this
Section, the transferee shall be admitted to the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this Agreement. 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 Company.
18. Dissolution.
(a) The Company 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) the retirement, resignation or dissolution
of the Member or the occurrence of any other event which terminates the continued membership of the
Member in the Company unless the business of the Company is continued in a manner permitted by the
Act, or (iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy of the Member will 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.
(c) In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
19. Tax Status of Company. So long as the Company has only one member, the Company shall be
disregarded as an entity separate from the Member as provided in Treasury Regulation Section
301.7701-3(b), as hereafter amended or supplemented.
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 which are valid, enforceable and
legal.
21. Construction of Agreement. This Agreement shall inure to the benefit of, and shall bind, the
Member and its respective representatives, successors and assigns. No creditor of the Company or
other party shall be a third-party beneficiary of this Agreement,
except as specifically provided with respect to Indemnified Parties as contemplated by Section 16.
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22. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall
be deemed an original of this Agreement.
23. Entire Agreement. This Agreement constitutes the entire agreement of the Member with respect to
the subject matter hereof.
24. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State
of Delaware (without regard to conflict of laws principles).
25. Amendments. This Agreement may not be modified, altered, supplemented or amended except
pursuant to a written agreement executed and delivered by the Member.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this
Limited Liability Company Agreement as of the date first written above.
| NORDYNE LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Vice President and Treasurer | ||||
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