EXHIBIT 3.4
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BFS, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the
"Agreement") of BFS, LLC (the "Company") dated as of June 1, 2000, by
Builders FirstSource - Ohio Valley, Inc., a Delaware corporation, as the sole
member of the Company (the "Member").
RECITALS
The Member has purchased, on the date hereof, 100% of the issued and
outstanding limited liability company interests in the Company and desires to
enter into a written agreement, in accordance with the provisions of the
Delaware Limited Liability Company Act and any successor statute, as amended
from time to time (the "Act"), governing the affairs of the Company and the
conduct of its business.
ARTICLE 2
The Limited Liability Company
2.2 Formation. The Company was previously formed as a limited
liability company pursuant to the provisions of the Act. A Certificate of
Formation for the Company (the "Certificate of Formation") has been filed in the
Office of the Secretary of State of the State of Delaware in conformity with the
Act.
2.4 Name. The name of the Company is "BFS, LLC" and its business
shall be carried on in such name with such variations and changes as the Board
(as hereinafter defined) shall determine or deem necessary to comply with
requirements of the jurisdictions in which the Company's operations are
conducted.
2.6 Business Purpose; Powers. The Company is formed for the purpose
of engaging in any lawful business, purpose or activity for which limited
liability companies may be formed under the Act. The Company shall possess and
may exercise all 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 Company.
2.8 Registered Office and Agent. The location of the registered
office of the Company shall be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
The Company's Registered Agent at such address shall be The Corporation Trust
Company.
2.10 Term. Subject to the provisions of Articles 7 and 9 below, the
Company shall have perpetual existence.
2.12 Principal Place of Business. The principal place of business of
the Company shall be at such location as the Board may, from time to time,
select.
2.14 Title to Company Property. Legal title to all property of the
Company shall be held and vested and conveyed in the name of the Company and no
real or other property of the Company shall be deemed to be owned by the Member
individually. The Common Interests (as hereinafter defined) of the Member shall
constitute personal property.
2.16 Business Transactions of the Member with the Company. In
accordance with Section 18-107 of the Act, the Member may transact business with
the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a person who is not a member.
2.18 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
for financial statement purposes shall end on December 31 of each year.
ARTICLE 4
The Member
4.2 The Member. The name and address of the Member is as follows:
Name Address
---- -------
Builders FirstSource - Ohio Valley, Inc. 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
4.4 Member Meetings.
(b) Actions by the Member; Meetings. The Member may approve a
matter or take any action at a meeting or without a meeting by the written
consent of the Member pursuant to subparagraph (b) below. Meetings of the Member
may be called at any time by the Member.
(d) Action by Written Consent. Any action may be taken by the
Member without a meeting if authorized by the written consent of the Member. In
no instance where action is authorized by written consent of the Member will a
meeting of the Member be called or notice be given. However, a copy of the
action taken by written consent shall be filed with the records of the Company.
4.6 Liability of the Member. All 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 debts, obligations or liabilities of the
Company solely by reason of being a member.
4.8 Power to Bind the Company. The Member (acting in its capacity as
such) shall have the authority to bind the Company to any third party with
respect to any matter.
4.10 Admission of Members. New members shall be admitted only upon
the approval of the Member.
ARTICLE 6
The Board
6.2 Management By Board of Managers.
(b) Subject to such matters which are expressly reserved
hereunder or under the Act to the Member for decision, the business and affairs
of the Company shall be managed by a board of managers (the "Board"), which
shall be responsible for policy setting, approving the overall direction of the
Company and making all decisions affecting the business and affairs of the
Company. The Board shall consist of one (1) to seven (7) individuals (the
"Managers"), the exact number of Managers to be determined from time to time by
resolution of the Member.
(c) Each Manager shall be elected by the Member and shall
serve until his or her successor has been duly elected and qualified, or until
his or her earlier removal, resignation, death or disability. The Member may
remove any Manager from the Board or from any other capacity with the Company at
any time, with or without cause. A Manager may resign at any time upon written
notice to the Board.
(d) Any vacancy occurring on the Board as a result of the
resignation, removal, death or disability of a Manger or an increase in the size
of the Board shall be filled by the Member. A Manager chosen to fill a vacancy
resulting from the resignation, removal, death or disability of a Manager shall
serve the unexpired term of his or her predecessor in office.
6.4 Meetings of the Board.
(b) The Board shall meet at such times as may be necessary for
the Company's business on at least two (2) days' prior written notice of the
time and place of such meeting. A majority of the Managers shall constitute a
quorum for the transaction of business by the Board.
(d) Notice of any Board meeting may be waived by any Manager
before or after such meeting.
(f) All actions of the Board shall require the affirmative
vote of a majority of the Managers.
(h) Meetings of the Board may be conducted in person or by
conference telephone facilities and each Manager shall be entitled to
participate in any meeting of the Board by telephone. Any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting
if such number of Managers sufficient to approve such action pursuant to the
terms of this Agreement consent thereto in writing. The writing or writings
effectuating such written consent must be filed with the minutes of proceedings
of the Board.
6.6 Power to Bind Company. No Manager (acting in his capacity as
such) shall have any authority to bind the Company to any third party with
respect to any matter except pursuant to a resolution expressly authorizing such
action which resolution is duly adopted by the Board by the affirmative vote
required for such matter pursuant to this Agreement.
6.8 Officers and Related Persons. Subject to the terms of any
employment agreements to which the Company is a party, the Board shall have the
authority to appoint and terminate officers of the Company and retain and
terminate employees, agents and consultants of the Company and to delegate such
duties to any such officers, employees, agents and consultants as the Board
deems appropriate, including the power, acting individually or jointly, to
represent and bind the Company in all matters, in accordance with the scope of
their respective duties.
ARTICLE 8
Capital Structure and Contributions
8.2 Capital Structure. The capital structure of the Company shall
consist of one class of common interests (the "Common Interests"). All Common
Interests shall be identical with each other in every respect. Initially, the
Member shall own all of the issued and outstanding Common Interests.
8.4 Capital Contributions. From time to time, the Board may
determine that the Company requires capital and may request the Member to make
capital contribution(s) in an amount determined by the Board. A capital account
shall be maintained for the Member, to which contributions and profits shall be
credited and against which distributions and losses shall be charged.
8.6 Certificates. Upon determination by the Board, the issued and
outstanding Common Interests may be represented by certificates. The Company
hereby irrevocably elects that all Common Interests in the Company shall be
securities governed by Article 8 of the Uniform Commercial Code. Each
certificate evidencing Common Interests in the Company shall bear the following
legend: "This certificate evidences Common Interests in BFS, LLC and shall be a
security for purposes of Article 8 of the Uniform Commercial Code." This
provision shall not be amended, and no such purported amendment to this
provision shall be effective, until all outstanding certificates have been
surrendered for cancellation.
ARTICLE 10
Profits, Losses and Distributions
10.2 Profits and Losses. For financial accounting and tax purposes,
the Company's net profits or net losses shall be determined on an annual basis
in accordance with the manner in which profit or loss is determined for Federal
income tax purposes. In each year, profits and losses shall be allocated
entirely to the Member.
10.4 Distributions. The Board shall determine profits available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Interests, the determined amount when, as
and if declared by the Board. The distributions of the Company shall be
allocated entirely to the Member.
10.6 Withholding Taxes. The Company is authorized to withhold from
distributions to the Member, or with respect to allocations to the Member, and
to pay over to a Federal, state or local government, any amounts required to be
withheld pursuant to the Internal Revenue Code of 1986, as amended, or any
provisions of any other Federal, state or local law. Any amounts so withheld
shall be treated as having been distributed to the Member pursuant to this
Article 5 for all purposes of this Agreement, and shall be offset against the
current or next amounts otherwise distributable to the Member.
ARTICLE 12
Accounts
12.2 Books. The Board shall cause to be maintained complete and
accurate books of account of the Company's affairs at the Company's principal
place of business. Such books shall be kept on such method of accounting as the
Board shall select. The Company's accounting period shall be as determined by
the Board.
12.4 Reports. The books of account of the Company shall be closed
after the close of each calendar year, and there shall be prepared and sent to
the Member a statement of the profits and losses of the Company for that period.
12.6 Federal Tax Matters. The Member shall be the Tax Matters
Member, who shall be considered the tax matters partner for purposes of Section
6231 of the Code. The Tax Matters Member shall cause to be prepared and shall
sign all tax returns of the Company and monitor any governmental tax authority
in any audit that such authority may conduct of the Company's books and records
or other documents.
ARTICLE 14
Events of Dissolution
The Company shall be dissolved upon the occurrence of any of
the following events (each, an "Event of Dissolution"):
(b) The Member votes for dissolution; or
(d) A judicial dissolution of the Company under Section 18-802
of the Act.
ARTICLE 16
Transfer of Interests in the Company
The Member may sell, assign, transfer, convey, gift, exchange
or otherwise dispose of any or all of its Common Interests and, upon receipt by
the Company of a written agreement by the person or business entity to whom such
Common Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member.
ARTICLE 18
Termination
18.2 Liquidation. In the event that an Event of Dissolution shall
occur, then the Company shall be liquidated and its affairs shall be wound up.
All proceeds from such liquidation shall be distributed in accordance with the
provisions of Section 18-804 of the Act, and all Common Interests in the Company
shall be cancelled.
18.4 Final Accounting. In the event of the dissolution of the
Company, prior to any liquidation, a proper accounting shall be made to the
Member from the date of the last previous
accounting to the date of dissolution.
18.6 Distribution in Kind. All or any portion of the Company's
assets may be distributed in kind to the Member in the event the Board
determines that it is in the best interest of the Company.
18.8 Cancellation of Certificate. Upon the completion of the winding
up of the Company and the distribution of the Company's assets, the Company
shall be terminated and the Member shall cause the Company to execute and file a
Certificate of Cancellation in accordance with Section 18-203 of the Act.
ARTICLE 20
Exculpation and Indemnification
20.2 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Member, Managers, or any officers, directors, stockholders,
partners, employees, representatives or agents of any of the foregoing, nor any
officer, employee, representative or agent of the Company or any of its
affiliates (individually, a "Covered Person" and, collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted
by a Covered Person in the reasonable belief that such act or omission is in or
is not contrary to the best interests of the Company and is within the scope of
authority granted to such Covered Person by the Agreement, provided such act or
omission does not constitute fraud, willful misconduct, bad faith, or gross
negligence.
20.4 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative
("Claims"), in which the Covered Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management of the affairs of
the Company or which relates to or arises out of the Company or its property,
business or affairs. A Covered Person shall not be entitled to indemnification
under this Section 10.2 with respect to (i) any Claim with respect to which such
Covered Person has engaged in fraud, willful misconduct, bad faith or gross
negligence or (ii) any Claim initiated by such Covered Person unless such Claim
(or part thereof) (A) was brought to enforce such Covered Person's rights to
indemnification hereunder or (B) was authorized or consented to by the Board.
Expenses incurred by a Covered Person in defending any Claim shall be paid by
the Company in advance of the final disposition of such Claim upon receipt by
the Company of an undertaking by or on behalf of such Covered Person to repay
such amount if it shall be ultimately determined that such Covered Person is not
entitled to be indemnified by the Company as authorized by this Section 10.2.
20.6 Amendments. Any repeal or modification of this Article X by the
Member shall not adversely affect any rights of such Covered Person pursuant to
this Article X, including the right to indemnification and to the advancement of
expenses of a Covered Person existing at the time of such repeal or modification
with respect to any acts or omissions occurring prior to such
repeal or modification.
ARTICLE 22
Amendment to Agreement
Amendments to this Agreement and to the Certificate of Formation
shall be approved in writing by the Member. An amendment shall become effective
as of the date specified in the approval of the Member or if none is specified
as of the date of such approval or as otherwise provided in the Act.
ARTICLE 24
General Provisions
24.2 Notices. Unless otherwise specifically provided in this
Agreement, all notices and other communications required or permitted to be
given hereunder shall be in writing and shall be (i) delivered by hand, (ii)
delivered by a nationally recognized commercial overnight delivery service,
(iii) mailed postage prepaid by first class mail in any such case directed or
addressed to the address set forth below or (iv) transmitted by facsimile
transmitted to:
If to the Member, to:
Builders FirstSource - Ohio Valley, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxx
Such notices shall be effective: (a) in the case of hand deliveries when
received; (b) in the case of an overnight delivery service, on the next business
day after being placed in the possession of such delivery service, with delivery
charges prepaid; (c) in the case of mail, seven (7) days after deposit in the
postal system, first class mail, postage prepaid; and (d) in the case of
facsimile notices, when electronic indication of receipt is received. Any party
may change its address and telecopy number by written notice to the other given
in accordance with this Section 12.1.
24.4 Construction Principles. As used in this Agreement words in any
gender shall be deemed to include all other genders. The singular shall be
deemed to include the plural and vice versa. The captions and article and
section headings in this Agreement are inserted for convenience of reference
only and are not intended to have significance for the interpretation of or
construction of the provisions of this Agreement.
24.6 Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, such provision shall be ineffective to
the extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the
invalid or unenforceable provision.
24.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof.
24.10 Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, the Member.
24.12 Additional Documents and Acts. The Member agrees to execute
and deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions, and conditions of this Agreement and of
the transactions contemplated hereby.
24.14 No Third-Party Beneficiary. This Agreement is made solely for
the benefit of the Member and no other person shall have any rights, interest,
or claims hereunder or otherwise be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
24.16 Limited Liability Company. The Member intends to form a
limited liability company and does not intend to form a partnership under the
laws of the State of Delaware or any other laws; provided, however, that, to the
extent permitted by U.S. law, the Company will be treated as a partnership for
U.S. Federal, state and local income tax purposes.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
the day first above written.
BUILDERS FIRSTSOURCE - OHIO VALLEY, INC.
By: ______________________________
Xxxxxx X. XxXxxxxxx
Senior Vice President, General Counsel and Secretary
