LIMITED LIABILITY COMPANY AGREEMENT of GLAZING INDUSTRIES MANAGEMENT, L.L.C. A Delaware Limited Liability Company
EXHIBIT 3.38
of
GLAZING
INDUSTRIES MANAGEMENT, L.L.C.
A
Delaware Limited Liability Company
Alenco
Holding Corporation, a Delaware corporation (the “Member”), 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. (the “Act”), and
hereby declares the following to be the Limited Liability Company Agreement of
such limited liability company:
1. Name. The name of
the limited liability company formed hereby (the “LLC”) is Glazing Industries
Management, L.L.C.
2. Purpose and
Powers. The purpose of the LLC is to engage in any activity
for which limited liability companies may be organized in the State of
Delaware. The LLC shall possess and may exercise all of the powers
and privileges granted by the Act or by any other law or by this Agreement,
together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion or attainment
of the business purposes or activities of the LLC.
3. Registered
Office. The registered office of the LLC in the State of
Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
4. Registered
Agent. The name and address of the registered agent of the LLC
for service of process on the LLC in the State of Delaware is The Corporation
Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
5. Admission of
Member. Simultaneously with the execution and delivery of this
Agreement and the filing of the Certificate of Formation with the Office of the
Secretary of State of the State of Delaware, Alenco Holding Corporation is
admitted as the sole Member of the LLC in respect of the Interest (as
hereinafter defined).
6. Interest. The LLC
shall be authorized to issue a single class of Limited Liability Company
Interest (as defined in the Act) (the “Interest”) including any and all benefits
to which the holder of such Interest may be entitled in this Agreement, together
with all obligations of such person to comply with the terms and provisions of
this Agreement.
7. Capital
Subscriptions. Simultaneously with the execution hereof, the
Member is contributing $10.00 to the LLC in exchange for its
Interest. The Member may contribute cash or other property to the LLC
as it shall decide, from time to time.
8. Tax Characterization and
Returns. If, at any time, two or more persons or entities hold
equity interests in the LLC for federal income tax purposes (i) it is the
intention of the LLC to be treated as a “partnership” for federal and all
relevant state tax purposes and (ii) the LLC will be treated as a
“partnership” for federal and all relevant state tax purposes and shall make all
available elections to be so treated. Until such time, however, it is
the intention of the Member that the LLC be disregarded for federal and all
relevant state tax purposes and that the activities of the LLC be deemed to be
activities of the Member for such purposes. All provisions of the
LLC’s certificate of formation and this Agreement are to be construed so as to
preserve that tax status under those circumstances.
9. Management.
a. Board of
Managers. The management of the LLC shall be vested in a Board
of Managers (the “Board of Managers”) elected by the Member. The
total number of members on the Board of Managers (the “Managers”) shall be one
(1) unless otherwise fixed at a different number by an amendment hereto or a
resolution signed by the Member. The Member hereby elects Xxxxxxx X.
Xxxxxx as the initial Manager of the LLC to serve until his successors are
elected and qualified. A Manager shall remain in office until removed
by a written instrument signed by the Member or until such Manager resigns in a
written instrument delivered to the Member or such Manager dies or is unable to
serve. In the event of any such vacancy, the Member may fill the vacancy. Each
Manager shall have one (1) vote. Except as otherwise provided in this
Agreement, the Board of Managers shall act by the affirmative vote of a majority
of the total number of Managers. Each Manager shall perform his or
her duties as such in good faith, in a manner he reasonably believes to be in
the best interests of the LLC, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. A
person who so performs his duties shall not have any liability by reason of
serving or having served as a Manager. A Manager shall not be liable
under a judgment, decree or order of court, or in any other manner, for a debt,
obligation or liability of the LLC.
b. Meetings and Powers of Board of
Managers. The Board of Managers shall establish meeting times,
dates and places and requisite notice requirements and adopt rules or procedures
consistent with the terms of this Agreement. Any action required to
be taken at a meeting of the Board of Managers, or any action that may be taken
at a meeting of the Board of Managers, may be taken at a meeting held by means
of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each
other. Participation in such a meeting shall constitute presence in
person at such meeting. Notwithstanding anything to the contrary in
this Section 9, the Board of Managers may take without a meeting any action
that may be taken by the Board of Managers under this Agreement if such action
is approved by the unanimous written consent of the Managers.
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Except as
otherwise provided in this Agreement, all powers to control and manage the
business and affairs of the LLC shall be exclusively vested in the Board of
Managers, and the Board of Managers may exercise all powers of the LLC and do
all such lawful acts as are not by statute, the Certificate of Formation or this
Agreement directed or required to be exercised or done by the Member and in so
doing shall have the right and authority to take all actions which the Board of
Managers deems necessary, useful or appropriate for the management and conduct,
of the business of the LLC; provided, however, that the Member may amend this
Agreement at any time and thereby broaden or limit the Board of Manager’s power
and authority.
c. Officers. The LLC
shall have officers who are appointed by the Board of Managers. The officers of
the LLC shall consist of a President, one or more Vice Presidents and a
Secretary. The initial officers of the LLC shall be:
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President
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Xxxxx
Xxxxxxx
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Vice
President
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Xxxx
Xxxxxxx
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Vice
President
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Xxxxxxx
X. Xxxxxx
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Secretary
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Xxxx
Xxxxxxx
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The
powers and duties of each officer shall be as follows:
The President. The
President shall have, subject to the supervision, direction and control of the
Board of Managers, the general powers and duties of supervision, direction and
management of the affairs and business of the LLC usually vested in the
president of a corporation, including, without limitation, all powers necessary
to direct and control the organizational and reporting relationships within the
LLC.
The Vice
Presidents. Each Vice President shall have such powers and
perform such duties as may from time to time be assigned to him or her by the
Board of Managers or the President.
The Secretary. The
Secretary shall attend meetings of the Board of Managers and meetings of the
Member and record all votes and minutes of all such proceedings in a book kept
for such purpose. He or she shall have all such further powers and
duties as generally are incident to the position of a secretary of a corporation
or as may from time to time be assigned to him or her by the Board of Managers
or the President.
Each of
the officers of the LLC shall be an “authorized person” within the meaning of
the Act for purposes of executing the LLC’s Certificate of
Formation.
d. Indemnification of the Managers and
Officers. Unless otherwise provided in this Section 9,
the LLC shall indemnify, save harmless, and pay all judgments and claims against
any Manager or Officer relating to any liability or damage incurred by reason of
any act performed or omitted to be performed by any Manager or Officer in
connection with the business of the LLC, including reasonable attorneys’ fees
incurred by the Manager or Officer in connection with the defense of any action
based on any such act or omission, which attorneys’ fees may be paid as
incurred. Unless otherwise provided in this Section 9, in the
event of any action by the Member against any Manager or Officer, including a
derivative suit, the LLC shall indemnify, save harmless, and pay all expenses of
such Manager or Officer, including reasonable attorneys’ fees incurred in the
defense of such action. Notwithstanding the provisions of this
Section 9, this Section shall be enforced only to the maximum extent
permitted by law, and no Manager or Officer shall be indemnified from any
liability for the fraud, intentional misconduct, gross negligence or a knowing
violation of the law which was material to the cause of action.
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e. Rights and Powers of the
Member. The Member shall not have any right or power to take
part in the management or control of the LLC or its business and affairs or to
act for or bind the LLC in any way. Notwithstanding the foregoing,
the Member has all the rights and powers specifically set forth in this
Agreement and, to the extent not inconsistent with this Agreement, in the
Act. The Member has no voting rights except with respect to those
matters specifically set forth in this Agreement and, to the extent not
inconsistent herewith, as required in the Act. Notwithstanding any
other provision of this Agreement, no action may be taken by the LLC (whether by
the Board of Managers, or otherwise) in connection with any of the following
matters without the written consent of the Member:
i. the
dissolution or liquidation, in whole or in part, of the LLC, or the institution
of proceedings to have the LLC adjudicated bankrupt or insolvent;
ii. the
filing of a petition seeking or consenting to reorganization or relief under any
applicable federal or state bankruptcy law;
iii. consenting
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the LLC or a substantial part of its
property;
iv. the
merger of the LLC with any other entity;
v. the sale
of all or substantially all of the LLC’s assets; or
vi. the
amendment of this Agreement.
10. Distributions. The
Board of Managers may cause the LLC to distribute any cash held by it which is
neither reasonably necessary for the operation of the LLC nor in violation of
Sections 18-607 or 18-804 of the Act to the Member at any
time.
11. Assignments. A
Member may assign all or any part of its Interest (an assignee of such Interest
is hereinafter referred to as a “Permitted Transferee”). A Permitted
Transferee shall become a substituted Member automatically upon an assignment.
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12. Dissolution. The
LLC shall dissolve, and its affairs shall be wound up, upon the earlier to occur
of (a) the decision of the Member, or (b) an event of dissolution of
the LLC under the Act; provided, however, that ninety (90) days following any
event terminating the continued membership of the Member, if the Personal
Representative (as defined in the Act) of the Member agrees in writing to
continue the LLC and to admit itself or some other Person as a member of the LLC
effective as of the date of the occurrence of the event that terminated the
continued membership of the Member, then the LLC shall not be dissolved and its
affairs shall not be wound up.
13. Distributions Upon
Dissolution. Upon the occurrence of an event set forth in
Section 12 hereof, the Member shall be entitled to receive, after paying or
making reasonable provision for all of the LLC’s creditors to the extent
required by Section 18-804 of the Act, the remaining funds of the
LLC.
14. Limited
Liability. No Member or Manager shall have any liability for
the obligations of the LLC except to the extent required by the
Act.
15. Amendment. This
Agreement may be amended only in a writing signed by the Member.
16. Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
DELAWARE, EXCLUDING ANY CONFLICTS OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION.
17. Severability. Except
as otherwise provided in the succeeding sentence, every term and provision of
this Agreement is intended to be severable, and if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the legality or validity of the remainder of this
Agreement. The preceding sentence shall be of no force or effect if
the consequence of enforcing the remainder of this Agreement without such
illegal or invalid term or provision would be to cause any party to lose the
benefit of its economic bargain.
18. Consent to Jurisdiction
Provision. The Member hereby (i) irrevocably submits to
the nonexclusive jurisdiction of any Delaware State court or Federal court
sitting in Wilmington, Delaware, in any action arising out of this Agreement,
and (ii) consents to the service of process by mail. Nothing
herein shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other
court.
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In
WITNESS WHEREOF, the undersigned has caused this Agreement of Limited Liability
Company to be executed as of the _10_ day of _April_,
2001.
GLAZING
INDUSTRIES MANAGEMENT, L.L.C.
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By
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Alenco
Holding
Corporation
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Its
Sole Member
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By
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/s/
Xxxxxxx X.
Xxxxxx
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Xxxxxxx
X. Xxxxxx
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Vice
President
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Consented
and Agreed:
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By
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/s/
Xxxxxxx X
Xxxxxx
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Xxxxxxx
X Xxxxxx, Manager
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