Exhibit 3.48
LIMITED LIABILITY COMPANY AGREEMENT
OF
TGIA ACQUISITION COMPANY, LLC
This Limited Liability Company Agreement (this "AGREEMENT") of TGIA
Acquisition Company, LLC, dated as of March 27, 2002, is entered into by North
American Van Lines, Inc., a Delaware corporation, as the sole member (the
"MEMBER").
The Member hereby forms a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6 DEL.C. Section
18-101, ET SEQ.), as amended from time to time (the "ACT"), and hereby agrees as
follows:
ARTICLE I
NAME, PURPOSE, ETC.
Section 1.1 NAME. The name of the limited liability company hereby formed
is TGIA Acquisition Company, LLC (the "COMPANY"). The Company may do business
under that name and, as permitted by applicable law, under any other name
determined from time to time by the Member.
Section 1.2 PURPOSE. The Company is formed for the object and purpose of,
and the nature of the business to be conducted and promoted 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 and all activities necessary or
incidental to the foregoing.
Section 1.3 POWERS OF THE COMPANY. Subject to any limitations set forth in
this Agreement, 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 purposes set forth in Section 1.2.
Section 1.4 TERM. The term of the Company commences on the date the
Certificate of Formation is filed in the office of the Secretary of State of the
State of Delaware and shall continue until the Company is dissolved pursuant to
the provisions of Section 5.1 of this Agreement.
Section 1.5 REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000. The Company may also have offices at such other places within or
without the State of Delaware as the Member may from time to time designate or
the business of the Company may require.
Section 1.6 REGISTERED AGENT. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware is
c/o The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
Section 1.7 QUALIFICATION IN OTHER JURISDICTIONS. Any authorized person 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 a jurisdiction in which the Company may wish to conduct business.
Section 1.8 FISCAL YEAR. The fiscal year of the Company (the "FISCAL YEAR")
shall end on December 31.
Section 1.9 TAXATION. The Company shall not be, and the Member and the
Board shall not permit the Company to elect to be, treated as an association
taxable as a corporation for U.S. federal, state or local income tax purposes,
including without limitation by electing to treat the Company as an association
taxable as a corporation under Treasure Regulations section 301.7701-3(a) or any
corresponding provision of state or local law.
Section 1.10 CERTAIN RATIFIED ACTIONS. Without in any way limiting the
generality of the foregoing or anything else contained in this Agreement or in
any other document, Xxxx Xxxxxxxx, is hereby designated as an authorized person,
within the meaning of the Act and the execution and filing of the Certificate of
Formation of the Company on March 25, 2002, with the Secretary of State are
hereby ratified and confirmed.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 GENERALLY. The business and affairs of the Company shall be
managed by or under the direction of a committee of the Company (the "BOARD")
consisting of at least two natural persons designated as directors (the
"DIRECTORS") as provided below. The Board shall have discretion to manage and
control the business and affairs of the Company, to make decisions affecting the
business and affairs of the Company, and to take actions as it deems necessary
or appropriate to accomplish the purposes of the Company and to exercise all of
the power and authority that limited liability companies may take under the Act,
PROVIDED, HOWEVER, that there shall be reserved to the Member the powers that,
under the Delaware General Corporation Law, are reserved to the stockholders of
a corporation organized under laws of the State of Delaware.
Section 2.2 ELECTION OF BOARD. The Directors shall be chosen by the Member.
The initial Directors of the Company will be as set forth on Annex A hereto.
Each Director shall hold office until a successor is selected by the Member or
until such Director's death, resignation or removal. Each Director is hereby
designated as a "manager" (within the meaning of the Act) of the Company.
Section 2.3 MEETINGS OF THE BOARD. The Board shall meet from time to time
to discuss the business of the Company. The Board may hold meetings either
within or without the State of Delaware. Meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board or the
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Member. Any Director may call a meeting of the Board on three days' notice to
each other Director, either personally, by telephone, by facsimile or by any
other similarly timely means of communication.
Section 2.4 QUORUM AND ACTS OF THE BOARD. At all meetings of the Board, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business. Except as otherwise provided in this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present thereat 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 or of any committee thereof may be taken without a meeting, if a
majority of the members of the Board or 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 or committee.
Section 2.5 ELECTRONIC COMMUNICATIONS. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 2.6 COMMITTEES OF DIRECTORS. The Board may, by resolution passed by
unanimous consent of the Directors, designate one or more committees. Such
resolution shall specify the duties and quorum requirements of such committees,
each such committee to consist of one or more of the Directors. The Board may
designate one or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may unanimously appoint another member
of the Board to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Company. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each committee
shall keep regular minutes of its meetings and report the same to the Board when
required.
Section 2.7 COMPENSATION OF DIRECTORS. The Board shall have the authority
to fix the compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at such meeting of the Board and may be paid a fixed sum
for attendance at each meeting of the Board or a stated salary as Director. No
such payment shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings. No
Director who is an employee of the Member or the Company shall receive
compensation for his or her service as a Director.
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Section 2.8 RESIGNATION. Any Director may resign at any time by giving
written notice to the Company. The resignation of any Director shall take effect
upon receipt of such notice or at such later time as shall be specified in the
notice; and, unless otherwise specified in the notice, the acceptance of the
resignation by the Company, the Members or the remaining Directors shall not be
necessary to make it effective.
Section 2.9 REMOVAL OF DIRECTORS. If at any time the Member desires to
remove, with or without cause, any Director, the Member shall have the power to
take all such actions promptly as shall be necessary or desirable to cause the
removal of such Director. Any vacancy caused by any such removal may be filled
in accordance with Section 2.10.
Section 2.10 VACANCIES. If any vacancies shall occur in the Board, by
reason of death, resignation, removal or otherwise, the Directors then in office
shall continue to act, and such vacancies may be filled by a majority of the
Directors then in office, although less than a quorum. A Director selected to
fill a vacancy shall hold office until his or her successor has been selected
and qualified or until his or her earlier death, resignation or removal.
Section 2.11 DIRECTORS AS AGENTS. The Directors, to the extent of their
powers set forth in this Agreement, are agents of the Company for the purpose of
the Company's business, and the actions of the Directors taken in accordance
with such powers shall bind the Company.
ARTICLE III
OFFICERS
Section 3.1 EXECUTIVE OFFICERS. The officers of the Company shall be a
Chairman of the Board of Directors, a President, a Treasurer and a Secretary,
all of whom shall be elected annually by the Board, and shall hold office during
the pleasure of the Board. In addition, the Board may elect one or more
Vice-Presidents, Assistant Treasurers, or Assistant Secretaries. All vacancies
occurring among any of the officers shall be filled by the Board. Any officer
may be removed and/or replaced at any time by the affirmative vote of a majority
of the Directors present at a regular meeting of Directors or at a special
meeting of Directors called for the purpose. The initial officers of the Company
will be as set forth on Annex B hereto.
Section 3.2 OTHER OFFICERS. The Board may appoint, remove and replace such
other officers, including assistant officers and agents, with such powers and
duties as it shall deem necessary. The Board may by resolution authorize the
President to appoint and remove such other officers.
Section 3.3 THE CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, if one be elected, shall preside when present at all meetings of the
Board of Directors, and he or she shall have and perform such other duties as
from time to time may be assigned by the Board of Directors, or the Executive
Committee, if any.
Section 3.4 THE PRESIDENT. The President shall be selected from among the
directors, and shall, in the absence or non-election of a Chairman of the Board,
preside at
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all meetings of the directors. When the Board is not in session, the President
shall have general management and control of the business and affairs of the
Company.
Section 3.5 THE VICE-PRESIDENT. The Vice-President, if any, or if there be
more than one, the senior Vice-President as determined by the Board of
Directors, shall in the absence or disability of the President, exercise the
powers and perform the duties of the President, and each Vice-President shall
exercise such other powers and perform such other duties as shall be prescribed
by the Board.
Section 3.6 THE TREASURER. The Treasurer shall have custody of all funds,
securities and evidences of indebtedness of the Company; shall receive and give
receipts and acquittances for moneys paid in on account of the Company, and
shall pay out of the funds on hand all bills, payrolls, and other just debts of
the Company, of whatever nature, upon maturity; shall enter regularly in books
to be kept by him for that purpose, full and accurate accounts of all moneys
received and paid out by the Treasurer on account of the Company, and shall
perform all other duties incident to the office of Treasurer and as may be
prescribed by the Board.
Section 3.7 THE SECRETARY. The Secretary shall keep the minutes of all
proceedings of the Board of Directors; shall attend to the giving and serving of
all notices to the Directors or other notice required by law, or by this
Agreement; shall affix the seal of the Company to deeds, contracts and other
instruments in writing requiring a seal, when duly signed or when so ordered by
the Board of Directors; shall have charge of the certificate books and stock
books and such other books and papers as the Board may direct, and shall perform
all other duties incident to the office of Secretary.
Section 3.8 RELIANCE BY THIRD PARTIES. Any Person dealing with the Company
or any Officer may rely upon a certificate signed by the President, Secretary or
any Vice President as to:
(a) the identity of the President or any Member, Director, or other
Officer;
(b) the existence or non-existence of any fact or facts which
constitute a condition precedent to acts by the President, any other Officer, a
Director, or the Board, or which are in any other manner germane to the affairs
of the Company;
(c) the Persons who are authorized to execute and deliver any
instrument or document of or on behalf of the Company; or
(d) any act or failure to act by the Company or as to any other
matter whatsoever involving the Company or any Member.
Section 3.9 SALARIES. The salaries of all officers shall be fixed by the
Board of Directors, and the Board has the authority by majority vote to
reimburse expenses.
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ARTICLE IV
CAPITAL CONTRIBUTIONS AND DISTRIBUTIONS
Section 4.1 MEMBERSHIP INTEREST. The Company shall have membership
interests evidenced by a certificate in the form attached as ANNEX C. The
Company shall issue to the Member a certificate to evidence its membership
interest.
Section 4.2 ADDITIONAL CAPITAL CONTRIBUTIONS. The Member shall have the
right, but not the obligation, to make capital contributions to the Company in
the form of cash, services or otherwise, at the times and in the amounts
determined by the Member.
Section 4.3 DISTRIBUTIONS. Distributions may be made to the Member at the
times and in the aggregate amounts determined by the Board. Notwithstanding
anything to the contrary contained herein, the Company, and the Member on behalf
of the Company, shall not make a distribution to the Member on account of the
interest of the Member in the Company if such distribution would violate
Section 18-607 of the Act or any other applicable law.
ARTICLE V
DISSOLUTION, ASSIGNMENT, TRANSFER
Section 5.1 DISSOLUTION. The Company shall be dissolved upon the earliest
to occur of any of the following: (a) the sale, transfer or other disposition of
all the assets of the Company, (b) the decision of the Member to dissolve the
Company or (c) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
Section 5.2 ASSIGNMENTS. The Member shall be permitted to transfer all or
part of its interest in the Company to any person or entity that assumes all or
such portion of the Member's obligations under this Agreement.
Section 5.3 RESIGNATION. The Member may only resign from the Company if it
has transferred all of its interest in the Company to another person or entity.
Section 5.4 ADDITIONAL MEMBERS. In the sole discretion of the Board of
Directors, the Company may admit any person as an additional member of the
Company.
ARTICLE VI
LIABILITY, EXCULPATION, INDEMNIFICATION
Section 6.1 LIABILITY OF THE MEMBER.
(a) Except as otherwise provided by the Act or herein, 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, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
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(b) Neither the Member nor any of its or the Company's directors,
officers, employees, shareholders, agents or representatives (each, a "COVERED
PERSON"), shall be liable to the Company for any loss, liability, damage or
claim incurred by reason of any act or omission performed or omitted by such
Covered Person in good faith on behalf of the Company, except that a Covered
Person shall be liable for any loss, liability, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
Section 6.2 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company, a Covered Person acting under this Agreement shall not be liable to the
Company for such Covered Person's good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and
liabilities of such Covered Person. Whenever in this Agreement a Covered Person
is permitted or required to make decisions in good faith, the Covered Person
shall act under such standard and shall not be subject to any other or different
standard imposed by this Agreement or any relevant provisions of law or in
equity or otherwise.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any person or entity as to
matters the Covered Person reasonably believes are within such person's or
entity's professional or expert competence.
Section 6.3 INDEMNIFICATION. To the fullest extent permitted by applicable
law, a Covered Person shall be entitled to indemnification from the Company for
any loss, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company, except that no Covered Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Covered
Person by reason of such Covered Person's gross negligence or willful misconduct
with respect to such acts or omissions; PROVIDED, that any indemnity under this
Section 6.3 shall be provided out of and to the extent of Company assets only,
and no Covered Person shall have any personal liability on account thereof.
Section 6.4 EXPENSES. To the extent permitted by applicable law, expenses
(including reasonable attorneys' fees, disbursements, fines and amounts paid in
settlement) incurred by a Covered Person in defending any claim, demand, action,
suit or proceeding relating to or arising out of their performance of their
duties on behalf of the Company may, from time to time and at the discretion of
the Board, be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to
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repay such amount if it shall ultimately be determined that the Covered Person
is not entitled to be indemnified as authorized in Section 6.3.
ARTICLE VII
MISCELLANEOUS
Section 7.1 AMENDMENT, WAIVER, ETC. This Agreement may not be amended or
supplemented, and no waiver of or consent to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by the Member.
Section 7.2 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of all parties hereto and their successors and permitted assigns.
Section 7.3 SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision was omitted.
Section 7.4 INTEGRATION. This Agreement constitutes the entire agreement of
the Member with respect to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
Section 7.5 NO THIRD-PARTY BENEFICIARIES. Except as provided in Article VI
with respect to the exculpation and indemnification of Covered Persons, nothing
in this Agreement shall confer any rights upon any person or entity other than
the parties hereto and their successors and permitted assigns.
Section 7.6 CERTIFICATES. (a) GENERAL. The Member shall be entitled to a
certificate representing its interest in the Company, in such form as may from
time to time be prescribed by the Board. Such certificate shall be signed by an
officer of the Company, which signature may be a facsimile thereof. In case the
officer of the Company who has signed or whose facsimile signature has been
place on such certificate shall have ceased to be an officer of the Company
before such certificate is issued, it may be issued by the Company with the same
effect as if such person were an officer of the Company at the time of its
issue. The certificate shall contain a legend with respect to any restrictions
on transfer.
(b) APPLICATION OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE. The Company
hereby irrevocably elects that all interests in the Company shall be securities
governed by Article 8 of the Uniform Commercial Code in effect in the State of
Delaware. Each certificate evidencing an interest in the Company shall bear the
following legend:
"This Certificate evidences a membership interest in TGIA Acquisition
Company, LLC and shall be a security for purposes of Article 8 of the
Uniform Commercial Code in effect in the State of Delaware."
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No change to this provision shall be effective until all outstanding
certificates have been surrendered for cancellation and any new certificates
thereafter issued shall not bear the foregoing legend.
Section 7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED UNDER, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of the
Company, intending to be legally bound hereby, has duly executed this Agreement
as of the date first above written.
NORTH AMERICAN VAN LINES, INC.
By: /s/ Xxxxxxx X. Gathamy
-----------------------------------------
Name: Xxxxxxx X. Gathamy
Title: Vice President
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ANNEX A
DIRECTORS
Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
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ANNEX B
OFFICERS
Name Title
Xxxxxxxx X. Xxxxx Chairman, President and Treasurer
Xxxxxx X. Xxxxx Vice President and Secretary
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ANNEX C
TGIA ACQUISITION COMPANY, LLC
CERTIFICATE OF MEMBERSHIP INTEREST
The undersigned certifies that NORTH AMERICAN VAN LINES, INC. is the holder
of _________ of membership interest in TGIA ACQUISITION COMPANY, LLC, a Delaware
limited liability company (the "Company").
The membership interest represented by this Certificate is transferable
only on the books of the Company by the holder hereof in person or by power of
attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the Company has caused this Certificate to be duly
executed and signed this _____ day of ________, 2002.
TGIA ACQUISITION COMPANY, LLC
By:
------------------------------------
Name:
Title:
THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNLESS (I) (A) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
(B) THE HOLDER HAS DELIVERED TO THE CORPORATION AN OPINION OF COUNSEL TO THE
EFFECT THAT SUCH DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF SUCH
ACT, WHICH OPINION AND COUNSEL MUST BE REASONABLY SATISFACTORY TO THE COMPANY,
OR (C) THE HOLDER HAS OBTAINED A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION WITH RESPECT TO SUCH DISPOSITION, REASONABLY SATISFACTORY TO
COUNSEL FOR THE COMPANY, AND (II) SUCH DISPOSITION IS PURSUANT TO, OR UNDER AN
EXEMPTION FROM, REGISTRATION UNDER ANY APPLICABLE STATE SECURITIES LAWS.
THIS CERTIFICATE EVIDENCES A MEMBERSHIP INTEREST IN TGIA ACQUISITION
COMPANY, LLC AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM
COMMERCIAL CODE IN EFFECT IN THE STATE OF DELAWARE.
