LIMITED LIABILITY COMPANY AGREEMENT of ALENCO EXTRUSION MANAGEMENT, L.L.C. A Delaware Limited Liability Company
EXHIBIT 3.32
of
ALENCO
EXTRUSION 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 Alenco
Extrusion 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 lax 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.
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.
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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:
President Xxxxx
Xxxxxxx
Vice
President Xxxx
Xxxxxxx
Vice
President
Xxxxxxx X. Xxxxxx
Secretary Xxxx
Xxxxxxx
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, or 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.
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.
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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.
Alenco
Extrusion Management, L.L.C.
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By
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Alenco
Holding
Corporation
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|
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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, Vice
President
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Consented and Agreed:
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx, Manager
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