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Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
KEY COMPONENTS, LLC
THE UNDERSIGNED Sole Member is executing this Limited Liability Company
Agreement (the "Agreement") for the purpose of forming a limited liability
company (the "Company") pursuant to the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101 et seq. (the "Delaware Act"),
and does hereby certify and agree as follows:
1. Name: Formation. The name of the Company shall be KEY COMPONENTS,
LLC, or such other name as the Members may from time to time hereafter
designate. The Company shall be formed upon the execution and filing by Xxxxxx
Xxxxxxxxx, acting as the duly authorized agent of the Members for such purpose,
of a certificate of formation of the Company with the Secretary of State of the
State of Delaware setting forth all of the information required by Section
18-201 of the Delaware Act.
2. Definitions: Rules of Construction. In addition to terms otherwise
defined herein, the following defined terms shall have the meanings set forth
below:
"Event of withdrawal of a Member" means the death, retirement,
resignation, expulsion, bankruptcy, liquidation or dissolution
of a Member or the occurrence of any other event that
terminates the continued membership of a Member in the
Company.
"Sole Member" means Key Components, Inc., a New York
corporation.
"Member" means the Sole Member and/or any other Member
admitted pursuant to Sections 9 and 10 below.
Words used herein, regardless of the number and gender used,
shall be deemed and construed to include any other number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context requires,
and, as used herein, unless the context clearly requires otherwise, the words
"hereof," "herein," and "hereunder" and words of similar import shall refer to
this Agreement as a whole and not to any particular provisions or sections
hereof.
3. Purpose. The purpose of the Company shall be to engage in any lawful
business activity or transaction that may be engaged in by a limited liability
company organized under the Delaware Act, as such business activities and
transactions may be determined by the Members from time to time.
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4. Offices.
a. The principal business office of the Company, and such
additional offices as the Members may determine to establish, shall be located
at such place or places inside or outside the State of Delaware as the Members
may designate from time to time.
b. The registered office of the Company in the State of
Delaware is located at 00 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000. The
registered agent of the Company for service of process at such address is United
Corporate Services, Inc.
5. Members. The only Member of the Company is the Sole Member. The name
and business or residence address of the Sole Member of the Company is as set
forth on Schedule I attached hereto, as the same may be amended or modified from
time to time.
6. Term. The Company shall continue until dissolved and terminated in
accordance with Section 14 of this Agreement.
7. Management of the Company.
a. The Members. The Members shall have the right to manage the
business and affairs of the Company, and shall have all powers and rights
necessary, appropriate, desirable or advisable to effectuate and carry out the
purposes and business of the Company. The Members may appoint, employ, or
otherwise contract with any persons or entities for the transaction of the
business of the Company or the performance of services for or on behalf of the
Company, and the Members may delegate to any such person or entity such
authority to act on behalf of the Company as the Members may from time to time
deem appropriate. In furtherance thereof, the Members, on behalf of the Company,
may enter into an agreement with any such individual or entity for the purpose
of effecting or evidencing any such delegation. Each such agreement shall be
binding upon the Company in accordance with its terms. No person dealing with
any employee or agent authorized by the Members shall be required to determine
the authority of such employee or agent to act on behalf of the Company, or to
determine any facts or circumstances bearing on the existence of such authority,
or to see to the application by such employee or agent of any money or other
property paid or delivered to him or her as a recipient for the Company.
Except as to actions herein specified to be taken by all of
the Members or by the Members acting unanimously, the duties and powers of the
Members may be exercised by any one of the Members acting alone.
Any Member, authorized by all of the Members, may execute and
file on behalf of the Company with the Secretary of State of the State of
Delaware any certificates of amendment to the Company's certificate of
formation, one or more restated certificates of formation and certificates of
merger or consolidation and, upon the dissolution and completion of the winding
up of the Company, at any time when there are fewer than two Members, or as
otherwise provided in the Delaware Act, a certificate of cancellation canceling
the Company's certificate of formation.
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b. Board of Directors. Without limitation of the provisions of
paragraph (a) of this Section 7, the management of the Company shall be vested
in a Board of Directors until such time as the delegation of management
authority thereto shall be revoked by vote or written consent of all of the
Members. The Sole Member hereby designates that the initial Board of Directors
of the Company shall consist of the persons listed below:
Xxxx X. Xxxxx
Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxx, and
Xxxxxx X. Xxxxxxx.
(1) Number, Tenure and Qualification of
Directors. The number of directors comprising the Board of Directors shall be
fixed at 5 directors which number may be amended from time to time by vote or
written consent of all of the Members. Each director shall hold office until his
or her successor is elected and qualified, or until his or her death, or until
he or she has resigned, or has been removed. Directors elected subsequent to the
initial Board of Directors designated in the foregoing paragraph 7b hereof shall
be elected by the vote or written consent of all of the Members.
(2) Liability for Certain Acts. A director of
the Company shall perform his or her duties in good faith and in a manner he or
she reasonably believes to be in the best interests of the Company. A director
who so performs such duties shall not have any liability by reason of being or
having been a director. Without limiting the generality of the preceding
sentence, a director does not in any way guaranty the return of any capital
contribution to a Member or a profit for the Members from the operations of the
Company.
(3) No Exclusive Duty to Company. The directors
shall not be required to manage the Company as their sole and exclusive
functions and they may have other business interests and may engage in other
activities in addition to those relating to the Company. Neither the Company nor
any Member shall have any right pursuant to this Agreement to share or
participate in such other business interests or activities or to the income or
proceeds derived therefrom. The directors shall incur no liability to the
Company or any Member as a result of engaging in any other business interests or
activities.
(4) 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 any later time specified in
such notice. Unless otherwise specified in such notice, the acceptance of the
resignation shall not be necessary to make it effective. The resignation of a
director who is also a Member shall not affect the director's rights as a Member
and shall not constitute a withdrawal of a Member.
(5) Removal. Any director may be removed or
replaced with or without cause by vote or written consent of all of the Members.
The removal of a director who is also a
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Member shall not affect the director's rights as a Member and shall not
constitute a withdrawal of such Member.
(6) Vacancies. Any vacancy occurring for any
reason in the number of directors may be filled by vote or written consent of
all of the Members. A director elected to fill a vacancy shall be elected for
the unexpired term of the director's predecessor in office and shall hold office
until the expiration of such terms and until the director's successor has been
elected and qualified. A Director chosen to fill a position resulting from an
increase in the number of directors shall hold office until a successor has been
elected and qualified.
c. Officers. The Board of Directors is granted full power and
authority to elect officers of the Company, who shall have such titles and
exercise and perform such powers and duties as shall be assigned to them from
time to time by the Board of Directors. Any officer may be removed by the Board
of Directors at any time, with or without cause. Each officer shall hold office
until his or her successor is elected and qualified or until his or her death,
or until he or she has resigned, or has been removed. Any number of officers may
be held by the same individual. The salaries and other compensation of the
officers shall be fixed by the Board of Directors.
d. Indemnification. The Company shall indemnify the Members,
any former Members, any person who is or was an affiliate of any Member or
former Member, any person who is or was an officer, director, employee or agent
of the Company or any subsidiary thereof, and any person who is or was serving
at the request of the Company, the Members or a director of the Company as an
officer, director, employee, member, partner, agent, fiduciary or trustee of
another person ("Indemnitees"), to the fullest extent of the law, from and
against any and all losses, claims, damages, liabilities (joint or several),
expenses (including, without limitation, legal fees and expenses), judgments,
fines, penalties, interest, settlements and other amounts arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved, or is
threatened to be involved, as party or otherwise, by reason of its status as an
Indemnitee; provided that in each case the Indemnitee acted in good faith and in
a manner that such Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal proceeding, had
no reasonable cause to believe its conduct was unlawful. Any indemnification
under this Agreement will be only out of the assets of the Company, and the
Members shall not be personally liable for, or have any obligation to contribute
or loan funds or assets to the Company to enable it to effectuate, such
indemnification. The Company is authorized to purchase insurance against
liabilities asserted against and expenses incurred by such persons in connection
with the Company 's activities, regardless of whether the Company would have the
power to indemnify such persons against such liabilities under the provisions of
this paragraph.
8. Capital Contributions. The Members have each made contributions to
the capital of the Company in the respective amounts set forth on Schedule I
attached hereto. The Members shall not be required to make any further
contributions to the capital of the Company. Persons or entities hereafter
admitted as Members of the Company shall make such contributions of cash (or
promissory obligations), property or services to the Company as shall be
determined by the Members, acting unanimously, at the time of each such
admission.
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9. Assignments of Company Interest.
a. The Sole Member may sell, assign, pledge or otherwise
transfer or encumber (collectively "transfer") all or any part of its interest
in the Company to any entity beneficially owned or controlled by the Sole
Member, and such transferee of all or any part of the Sole Member's interest in
the Company shall be admitted as a substituted Member. Any permitted transferee
of all or any part of a the Sole Member's interest in the Company shall as a
condition precedent to such transfer agree to be bound by all of the terms and
conditions of this Agreement to the same extent as the transferor of such
interest.
b. After the admission of any Members in addition to the Sole
Member , pursuant to the terms of Section 10 below, no Member may sell, assign,
pledge or otherwise transfer or encumber (collectively "transfer") all or any
part of its interest in the Company, and no transferee of all or any part of a
Member's interest in the Company shall be admitted as a substituted Member,
without, in either event, having obtained the prior written consent of the other
Member (which consent may be given or withheld in such other Member's sole
discretion). Any permitted transferee of all or any part of a Member's interest
in the Company shall as a condition precedent to such transfer agree to be bound
by all of the terms and conditions of this Agreement to the same extent as the
transferor of such interest.
c. The Members shall amend Schedule I attached hereto from
time to time to reflect transfers made in accordance with, and as permitted
under, this Section 9. Any purported transfer in violation of this Section 9
shall be null and void and shall not be recognized by the Company.
10. Additional Members. The Members, acting unanimously, shall have the
right to admit additional Members upon such terms and conditions, at such time
or times, and for such capital contributions as shall be determined by all of
the Members; and in connection with any such admission, the Members shall amend
Schedule I hereof to reflect the name, address and capital contribution of the
additional Member.
11. Withdrawal. After the admission of any Members in addition to the
Sole Member, pursuant to the terms of Sections 9 and 10 above, no Member shall
have the right to withdraw from the Company except with the consent of the other
Member and upon such terms and conditions as may be specifically agreed upon
between such other Member and the withdrawing Member. The provisions of this
Agreement with respect to distributions upon withdrawal are exclusive and no
Member shall be entitled to claim any further or different distribution upon
withdrawal under Section 18-604 of the Delaware Act or otherwise.
12. Distributions/Allocations. Subject to the prior rights of the
Company's creditors, including but not limited to any loan agreement or
indenture to which the Company is a party, distributions of cash or other assets
of the Company shall be made at such time and in such amounts as the Members
acting unanimously may determine. Distributions shall be made to (and profits
and losses shall be allocated among) Members pro rata in accordance with the
amount of their respective capital contributions to the Company as set forth on
Schedule I hereto.
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Subject to the prior rights of the Company's creditors,
including but not limited to any loan agreement or indenture to which the
Company is a party, the Company will be required to distribute to the Members
each year an amount equal to the Company's taxable income multiplied by the sum
of the highest federal individual tax rate of that year plus the New York state
individual tax rate of that year, plus any additional income tax liability
incurred by the shareholders of the Sole Member as a result of the reporting of
the Company 's income, deductions, gains or losses on the Sole Member's federal
or state income tax returns of such shareholders.
13. Return of Capital. No Member has the right to receive, and the
Members have absolute discretion to make, any distributions to a Member which
include a return of all or any part of such Member's capital contribution,
provided that upon the dissolution of the Company, the assets of the Company
shall be distributed as provided in Section 18-804 of the Delaware Act.
14. Dissolution. Subject to the provisions of Section 15 of this
Agreement, the Company shall be dissolved and its affairs wound up and
terminated upon the first to occur of the following:
a. December 31, 2048;
b. The determination of all of the Members to dissolve the
Company; or
c. The occurrence of an event of withdrawal of a Member or any
other event causing a dissolution of the Company under Section 18-801 of the
Delaware Act.
d. Upon dissolution and winding up of the affairs of the
Company, the assets of the Company shall be distributed or sold for cash and any
gain or loss resulting therefrom shall be allocated among the Members as
provided in Section 12 hereof, subject to the prior rights of the Company 's
creditors. Such proceeds of the Company shall be distributed in the following
order of priority: (i) to creditors (including Members who are creditors) in
satisfaction of liabilities of the Company (other than liabilities to existing
and former members of distributions from the Company); (ii) to existing and
former Members in satisfaction of liabilities to them, if any, for distributions
from the Company; and (iii) any remaining assets shall be distributed to Members
in accordance with their interests as set forth in Schedule I hereto.
15. Continuation of the Company. Notwithstanding the provisions of
Section 14(c) hereof, the occurrence of an event of withdrawal of a Member shall
not dissolve the Company if within ninety (90) days after the occurrence of such
event of withdrawal, the business of the Company is continued by the agreement
of all of the remaining Members.
16. Limitation on Liability. The debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, shall be solely
debts, obligations and liabilities of the Company, and no Member of the Company
shall 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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17. Further Assurances. Each of the Members shall hereafter execute and
deliver such further instruments and documents and do such further acts and
things as may be required or useful to carry out the intent and purpose of this
Agreement, including, without limitation, executing and delivering any amended,
modified or restated limited liability company agreements.
18. Amendments. This Agreement may be modified, altered, changed or
amended in accordance with the Delaware Limited Liability Company Act, provided,
however, that this Agreement may not be amended as to matters which would: (i)
change adversely any Member's rights and interest in the income, expense, gains,
losses or income tax allocations of the Company or change any Member's rights
with respect to liquidation of the Company, without the unanimous, affirmative
vote of the Members; or (ii) cause the Company to violate the terms of any loan
agreement or indenture to which it is a party.
19. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware.
20. Section Headings. Section headings in this Agreement are for
convenience only and shall have no force or effect for any purpose whatsoever.
IN WITNESS WHEREOF, the undersigned party has duly executed this
Limited Liability Company Agreement as of April 17, 1998.
SOLE MEMBER:
KEY COMPONENTS, INC.
By:______________________________
Name:
Title:
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SCHEDULE I
MEMBERS OF KEY COMPONENTS, LLC
Name & Address of
Member Percentage Interest Capital Contribution of Member
----------------- ------------------- ------------------------------
Key Components, Inc. 100.0% $1,000
Wing Road
XX0, Xxx 000X
Xxxxxxxxx, XX 00000
