EXHIBIT 3.22
LIMITED LIABILITY COMPANY AGREEMENT OF
MAAX LLC
This Limited Liability Company Agreement of Maax LLC (the "Company") is
made as of August 19, 2003 at 9:49 a.m. EDT, by Maax Canada Inc., a corporation
organized under the laws of Canada, as the sole initial member of the Company
(the "Initial Member").
WHEREAS, the Initial Member (i) desires to form a limited liability
company pursuant to the Delaware Limited Liability Company Act, 6 Del. C.
Section 18-101, et seq., as amended from time to time (the "Delaware Act"), by
filing a Certificate of Formation of the Company with the office of the
Secretary of State of the State of Delaware and (ii) agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise requires, the
terms defined in this Article I shall, for the purposes of this Agreement, have
the meanings herein specified.
"Additional Members" has the meaning set forth in Section 11.1 hereof.
"Affiliate" means with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person. As used in this definition, the term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules and exhibits hereto, as amended, modified,
supplemented or restated from time to time.
"Board" means the committee of managers of the Company established
pursuant to Section 6.1 hereof.
"Capital Contribution" means, with respect to any Member, the aggregate
amount of money and the fair market value of any property (other than money)
contributed to the Company by such Member pursuant to Section 4.1 hereof.
"Certificate" means the Certificate of Formation of the Company and any
and all amendments thereto and restatements thereof filed on behalf of the
Company with the office of the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
"Company" means Maax LLC, the limited liability company formed and
continued under and pursuant to the Delaware Act and this Agreement.
"Covered Person" means a Member, a Director, an Officer, a Manager, any
Affiliate of a Member, a Director, an Officer or a Manager, any officers,
directors, shareholders, partners, employees, representatives or agents of a
Member, a Director, an Officer or a Manager, or their respective Affiliates, or
any employee or agent of the Company or its Affiliates.
"Delaware Act" means the Delaware Limited Liability Company Act, 6 Del.C.
` 18-101, et seq., as amended from time to time.
"Director" means a natural person designated as a director of the Company
pursuant to Section 6.1 hereof
"Fiscal Year" means (i) the period commencing upon the formation of the
Company and ending on February 28, 2004, or (ii) any subsequent twelve (12)
month period commencing on March 1 and ending on February 28 (or February 29, as
the case may be).
"Initial Member" means Maax Canada Inc.
"Interest" means a Member's limited liability company interest in the
Company.
"Laws" means:
(i) all constitutions, treaties, laws, statutes, codes,
ordinances, orders, decrees, rules, regulations and municipal
by-laws, whether domestic, foreign or international;
(ii) all judgments, orders, writs, injunctions, decisions, rulings,
decrees and awards of any governmental body;
(iii) all policies, practices and guidelines of any governmental
body; and
(iv) any amendment, modification, re-enactment, restatement or
extension of the foregoing,
in each case binding on or affecting the party or Person referred to in the
context in which such word is used; and "Law" shall mean any one of them.
"Liquidation" shall have the meaning set forth in Section 13.3 hereof.
"Liquidation Preference" shall have the meaning set forth in Section 5.6
hereof.
"Majority Vote" means the written approval of, or the affirmative vote by,
Members holding a majority of the Liquidation Preference of all the issued and
outstanding PIShares.
"Manager" means any Person designated by the Members as a "manager"
(within the meaning of the Delaware Act) of the Company and shall include,
without further designation, the Directors.
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"Member" means each of Maax Canada Inc. and any Person admitted as an
Additional Member or a Substitute Member pursuant to the provisions of this
Agreement, in such Person's capacity as a member of the Company, and "Members"
means two (2) or more of such Persons when acting in their capacities as members
of the Company.
"Officer" means a natural person designated as an officer of the Company.
"Person" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"PIShares" shall have the meaning set forth in Section 5.6(i) hereof.
"RIShares" shall have the meaning set forth in Section 5.6(ii) hereof.
"Secretary" means the Person appointed by the Board as the secretary of
the Company, who shall perform the duties described in Section 7.4 of this
Agreement.
"Substitute Member" means a Person who is admitted to the Company as a
Member pursuant to Section 12.1 hereof, and who is named as a Member on Schedule
A to this Agreement.
Section 1.2 Headings. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE II
FORMATION AND TERM
Section 2.1 Formation.
(i) The Initial Member hereby forms the Company as a limited
liability company under and pursuant to the provisions of the Delaware Act
and agrees that the rights, duties and liabilities of the Members shall be
as provided in the Delaware Act, except as otherwise provided herein.
(ii) Upon the execution of this Agreement and payment to the
Company of US $1,000 for one (1) PIShare and US $100 for one (1) RIShare,
Maax Canada Inc. shall be admitted as a Member, owning one (1) PIShare and
one (1) RIShare.
(iii) The name and mailing address of each Member, the amount
contributed to the capital of the Company, the number and type of Interest
held by such Member, and the number of the share certificate representing
such Interest shall be listed on Schedule A attached hereto. The Secretary
shall be required to update Schedule A from time to time as necessary to
accurately reflect the information therein. Any amendment or revision to
Schedule A made in accordance with this Agreement shall not be deemed an
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amendment to this Agreement. Any reference in this Agreement to Schedule A
shall be deemed to be a reference to Schedule A as amended and in effect
from time to time.
(iv) James L. Winters, as an authorized person within the meaning
of the Delaware Act, has executed, delivered and filed the Certificate
with the Secretary of State of the State of Delaware. Upon the filing of
the Certificate, his powers as an authorized person ceased, and the
Secretary thereupon became the designated authorized person and shall
continue as the designated authorized person within the meaning of the
Delaware Act.
Section 2.2 Name. The name of the Company formed hereby is Maax LLC.
The business of the Company may be conducted upon compliance with all applicable
Laws under any other name designated by the Board.
Section 2.3 Term. The term of the Company commenced on the date the
Certificate was filed in the office of the Secretary of State of the State of
Delaware and shall continue until the Company is dissolved. The existence of the
Company as a separate legal entity shall continue until cancellation of the
Certificate in the manner required by the Delaware Act.
Section 2.4 Registered Agent and Office. The Company's registered
agent and office in the State of Delaware shall be RL&F Service Corp., One
Rodney Square, Tenth and King Streets, 10th Floor, Wilmington, New Castle
County, Delaware 19801. At any time, the Members may designate another
registered agent and/or registered office in the State of Delaware.
Section 2.5 Principal Place of Business. The principal place of
business of the Company shall be at 2121 Walter Glaub Drive, Plymouth, Indiana,
United States. At any time, the Board may change the location of the Company's
principal place of business to another location in the United States.
Section 2.6 Qualification in Other Jurisdictions. The Board shall
cause the Company to be qualified, formed or registered under assumed or
fictitious name statutes or similar Laws in any jurisdiction in which the
Company transacts or intends to transact business. The Secretary, as an
authorized person within the meaning of the Delaware Act, 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.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1 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 Delaware Act and engaging in any and all
activities necessary, convenient, desirable or incidental to the foregoing,
including, without limitation, (i) to acquire, hold and dispose of investments,
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including investments in Affiliates of the Company, (ii) to lend money to,
borrow money from, act as surety, guarantor or endorser for, provide collateral
for, and transact other business with third parties, including Members and
Affiliates of the Company, and (iii) to acquire, hold, manage, operate and
dispose of interests in real and personal property.
Section 3.2 Powers of the Company.
(i) 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 purpose set forth in Section
3.1, including, but not limited to, the power:
(a) to conduct its business, carry on its operations and
have and exercise the powers granted to a limited liability company
by the Delaware Act in any state, territory, district or possession
of the United States, or in any foreign country, that may be
necessary, convenient or incidental to the accomplishment of the
purpose of the Company;
(b) to enter into, perform and carry out contracts of any
kind, including, without limitation, contracts with the Directors,
the Officers, any Manager, any Member, any Affiliate thereof, or any
agent or Affiliate of the Company necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purpose of
the Company;
(c) to lend money to, borrow money from, act as surety,
guarantor or endorser for, provide collateral for, and transact
other business with third parties including Members and Affiliates
of the Company;
(d) to purchase, take, receive, subscribe for or otherwise
acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with,
shares or other interests in or obligations of domestic or foreign
corporations, associations, general or limited partnerships
(including, without limitation, the power to be admitted as a
partner thereof and to exercise the rights and perform the duties
created thereby), trusts, limited liability companies (including,
without limitation, the power to be admitted as a member or
appointed as a manager thereof and to exercise the rights and
perform the duties created thereof), or individuals or direct or
indirect obligations of the United States or of any government,
state, territory, governmental district or municipality or of any
instrumentality of any of them;
(e) to lend money for its proper purpose, to invest and
reinvest its funds, and to take and hold real and personal property
for the payment of funds so loaned or invested;
(f) to sue and be sued, complain and defend, and participate
in administrative or other proceedings, in its name;
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(g) to appoint employees and agents of the Company, and.
define their duties and fix their compensation;
(h) to indemnify any Person in accordance with the Delaware
Act and to obtain any and all types of insurance;
(i) to cease its activities and cancel its Certificate;
(j) to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, execute, acknowledge or take any
other action with respect to any lease, contract or security
agreement in respect of any assets of the Company;
(k) to borrow money and issue evidences of indebtedness, and
to secure the same by a mortgage, pledge or other lien on the assets
of the Company;
(l) to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any and all other claims or demands of or
against the Company or to hold such proceeds against the payment of
contingent liabilities; and
(m) to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
(ii) The Board may authorize any Person (including, without
limitation, any Member, Manager or Officer) to enter into and perform any
other document on behalf of the Company.
(iii) The Company may merge with, or consolidate into, another
Delaware limited liability company or other business entity (as defined in
Section 18-209(a) of the Delaware Act) upon a Majority Vote.
ARTICLE IV
CAPITAL CONTRIBUTIONS, INTERESTS
Section 4.1 Capital Contributions.
(i) Each Member has contributed or is deemed to have contributed
to the capital of the Company the amount set forth opposite the Member's
name on Schedule A attached hereto. The agreed value of the Capital
Contributions made or deemed to have been made by each Member shall be set
forth on Schedule A.
(ii) No Member shall be required to make any additional capital
contribution to the Company. However, a Member may make additional capital
contributions to the Company with the written consent of all of the
Members.
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Section 4.2 Member's Interest. A Member's Interest shall for all
purposes be personal property. A Member has no interest in specific Company
property.
(i) No Member shall receive any interest, salary or drawing with
respect to its Capital Contributions or for services rendered on behalf of
the Company or otherwise in its capacity as a Member, except as otherwise
specifically provided in this Agreement.
(ii) Except as otherwise provided herein and by applicable law, the
Members shall be liable only to make their Capital Contributions pursuant
to Section 4.1 hereof, and no Member shall be required to lend any funds
to the Company or, after a Member's Capital Contributions have been fully
paid pursuant to Section 4.1 hereof, to make any additional capital
contributions to the Company. No Member shall have any personal liability
for the repayment of any Capital Contribution of any other Member.
ARTICLE V
MEMBERS
Section 5.1 Powers of Members. The Members shall have the power to
exercise any and all rights or powers granted to the Members pursuant to the
express terms of this Agreement. The Members shall also have the power to
authorize the Board, by Majority Vote, to possess and exercise any right or
power not already vested in the Board pursuant to Article VI or any other
provision of this Agreement. Except as provided herein, the Members shall have
no power to bind the Company and shall have no power to manage the business or
affairs of the Company.
Section 5.2 Reimbursements. The Company shall reimburse the Members
for all ordinary and necessary out-of-pocket expenses incurred by the Members on
behalf of the Company. Such reimbursement shall not be deemed to constitute a
distribution upon, or a return of capital of, the PIShares or RIShares.
Section 5.3 Partition. Each Member waives any and all rights that it
may have to maintain an action for partition of the Company's property.
Section 5.4 Resignation. A Member may not resign from the Company
prior to the dissolution and winding up of the Company.
Section 5.5 Meetings of Members.
(i) The annual meeting of the Members for the election of
Directors and the transaction of other business shall be held, in each
year, at such place either within or outside the State of Delaware but
within the United States as shall be designated by the Board and stated in
the notice of the meeting. Special meetings of Members for any purpose or
purposes may be held at such time and place, within or outside the State
of Delaware but within the United States, and shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
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(ii) At the annual meeting of the Members, holders of PIShares
constituting a Majority Vote shall elect Directors and transact such other
business as may properly be brought before the meeting, unless a different
vote is expressly provided for by law or this Agreement.
(iii) Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each Member entitled to vote at
such meeting not less than 10 nor more than 60 days before the date of the
meeting.
(iv) Special meetings of the Members, for any purpose or purposes,
may be called by any Director.
(v) Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given to each Member entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting.
(vi) Business transacted at any special meeting of Members shall be
limited to the purposes stated in the notice, unless otherwise agreed to
by all of the Members entitled to vote.
(vii) Members holding a majority of the Liquidation Preference of
all the PIShares issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at
all meetings of the Members for the transaction of business except as
otherwise provided by this Agreement. If, however, such quorum shall not
be present or represented at any meeting of the Members, the Members
entitled to vote thereat, present in person or represented by proxy, shall
have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is
for more than 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each Member of record entitled to vote at the meeting.
(viii) When a quorum is present at any meeting, a Majority Vote
shall decide any question brought before such meeting, unless the question
is one upon which by law or express provision of this Agreement, a
different vote is required in which case such express provision shall
govern and control the decision of such question.
(ix) Unless otherwise provided in this Agreement, each Member
owning a PIShare shall at every meeting of the Members be entitled to vote
in person or by proxy, but no proxy shall be voted on after three years
from its date, unless the proxy provides for a longer period.
(x) Members may exceptionally participate in a meeting of the
Members by means of conference telephone, video-conference or similar
communications equipment, provided all persons participating in the
meeting can hear each other, and such
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participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by conference
telephone, video-conference or similar communications equipment, the
meeting shall be deemed to be held at the principal place of business of
the Company.
(xi) Unless otherwise provided in this Agreement, any action
required to be taken at any annual or special meeting of the Members or
any action which may be taken at any annual or special meeting of such
Members, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall
be signed by Members having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which
all Members entitled to vote thereon were present and voted. Prompt notice
of taking of the action without a meeting by less than unanimous consent
shall be given to those Members who have not consented in writing.
Section 5.6 Member Interests. The Company's limited liability
company interests shall consist of the following two classes of limited
liability company interests:
(i) Preferred limited liability company interests ("PIShares").
Such PIShares shall have the following attributes:
(a) Full and exclusive voting power on all matters to be
voted upon by the Members. All matters subject to a vote shall be
determined by a vote of the Majority Holders, unless another vote is
required by law or expressly provided for in this Agreement.
(b) Rights to any and all distributions declared or made
prior to the Liquidation, such distributions to be made pro rata
based upon the Liquidation Preference of the PIShares then
outstanding. The "Liquidation Preference" with respect to a PIShare
shall mean an amount equal to the amount contributed therefore,
denominated in Canadian dollars. In the case of contributions in
currency other than Canadian dollars, such amount shall be based
upon the spot currency exchange rate at the time of contribution as
determined by the Company, and in the case of contributions of
assets other than currency, shall be the value thereof as determined
by the Company. The Liquidation Preference of a PIShare maybe
reduced from time to time at the sole discretion of the Board in an
amount equal to a distribution made to the holder of such PIShare
that is designated by the Board as a reduction of the Liquidation
Preference. In the case of such distribution or reduction in
currency other than Canadian dollars, the amount of such reduction
shall be based on the spot currency exchange rate at the time of
such distribution as determined by the Company, and in the case of
distributions of assets other than currency, shall be the value
thereof as determined by the Company.
(c) Upon the dissolution and winding up of the Company,
rights to receive an amount equal to the Liquidation Preference
prior to any distribution being made with respect to the RIShares.
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(d) Upon the dissolution and winding up of the Company, a
PIShare shall not be entitled to any distributions in excess of its
Liquidation Preference.
(ii) Remainder limited liability company interests ("RIShares").
Such RIShares shall have the following attributes:
(a) No voting rights, other than any rights, if any,
required by law or otherwise expressly provided by this Agreement.
(b) No rights to distributions made or declared other than
as listed in Section 5.6(ii)(c) below.
(c) The right to any remaining assets of the Company upon
Liquidation (after distributions are made with respect to the
PIShares), such assets to be distributed pro rata based on the
number of RIShares then outstanding.
PIShares and RIShares shall be evidenced by certificates in the forms attached
hereto as Exhibit A and Exhibit B, respectively. Each Director and each Officer
is designated as an authorized signer to sign any such stock certificate on
behalf of the Company. The Company may elect to buy back PIShares or RIShares,
in such amounts and at such prices as may be determined by the Board in its sole
discretion. Notwithstanding the foregoing, no such buy back shall be made
hereunder if such buy back would violate applicable law. In any such buy back,
no Member shall have the right to demand or receive property other than cash,
except as may be specifically provided in this Agreement or as may be
specifically agreed to by all of the Members.
ARTICLE VI
MANAGEMENT
Section 6.1 Board of Directors. Subject to Section 5.1 of this
Agreement, the business and affairs of the Company shall be managed by or under
the direction of a committee of managers of the Company (the "Board") consisting
of one or more natural persons designated as directors of the Company as
provided below ("Directors"). The Board shall initially consist of three
Directors who shall be Christian Perron, James L. Winters and Richard Garneau.
The Members at their annual meeting shall determine the number of Directors to
constitute the Board for the ensuing year, provided that thereafter the
authorized number of Directors may be increased by the Members or decreased by
the Members. The Directors shall be elected at the annual meeting of the
Members, except as provided in this Article, and each Director elected shall
hold office until a successor is elected and qualified or until such Director's
earlier death, resignation or removal. Directors need not be Members. Vacancies,
except vacancies caused by removal pursuant to Section 6.7 of this Article VI,
and newly created directorships resulting from any increase in the authorized
number of Directors may be filled by a majority of the Directors then in office,
though less than a quorum, or by a sole remaining Director, and the Directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced.
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Section 6.2 Meetings of the Board. The Board may hold meetings, both
regular and special, within or outside the State of Delaware but within the
United States. The first meeting of each newly elected Board shall be held
immediately after the annual meeting of Members and at the same place, and no
notice of such meeting shall be necessary to the newly elected Directors in
order legally to constitute the meeting, provided a quorum shall be present. In
the event such meeting is not held at that time and place, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board, or as shall be specified
in a written waiver signed by all of the Directors. Regular 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. Special meetings of the Board may be
called by any Director on three (3) days' notice to each Director, either
personally, by telephone, by mail, by telegram or by any other means of
communication.
Section 6.3 Quorum and Acts of the Board. At all meetings of the
Board a majority of the Directors shall constitute a quorum for the transaction
of business and, except as otherwise provided in Section 6.9 of this Agreement
or any other provision of 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 all members of the Board or
committee, as the case maybe, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 6.4 Electronic Communications. Members of the Board, or any
committee designated by the Board, may exceptionally participate in a meeting of
the Board, or any committee, by means of conference telephone, video-conference
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. If all the participants are
participating by conference telephone, video-conference or similar
communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
Section 6.5 Committees of Directors. The Board may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
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, but no such committee
shall have the power or authority to take any of
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the actions described in Section 6.9 of this Agreement unless authorized in
writing by each Director. 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 6.6 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 meetings 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.
Section 6.7 Removal of Directors. Unless otherwise restricted by
Law, any Director or the entire Board may be removed, with or without cause, by
Majority Vote. Any vacancy caused by any such removal may be filled by a
Majority Vote.
Section 6.8 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.
Section 6.9 Actions Requiring Unanimous Approval of the Board.
Notwithstanding any other provision of this Agreement to the contrary, none of
the Board, any Director or any Officer shall take any of the following actions
on behalf of the Company unless authorized to do so unanimously by the Board:
(i) the sale, exchange or other disposition of any of the assets
of the Company except for sales in the ordinary course of business;
(ii) the commencement of a voluntary proceeding seeking
reorganization or other relief with respect to the Company under any
bankruptcy or other similar law or seeking the appointment of a trustee,
receiver, custodian or other similar official of the Company or any
substantial part of its property, or the making by the Company of a
general assignment for the benefit of creditors;
(iii) the declaration or making of any distributions to Members;
(iv) the entering into by the Company of any joint venture,
partnership, subcontracting, license, sub-license, manufacturing,
marketing, distribution or other similar arrangement with any Person;
(v) the formation or organization of any subsidiary of the Company
and the appointment of directors of (or persons with comparable authority
with respect to) any such subsidiary;
(vi) the commitment to any material capital expenditure by the
Company in any Fiscal Year of the Company;
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(vii) the adoption of a business plan and annual operating budget
for the Company (or any updates to each thereof);
(viii) the entering into, amendment or termination of employment
contracts with Officers or other contracts with Directors, Officers,
Managers, or Members or their respective Affiliates;
(ix) the appointment or change of the independent auditors or
deposit banks of the Company; or
(x) the acquisition or lease by the Company of any real property,
or any sale, lease or sublease of, or similar arrangement affecting, any
real property owned or leased by the Company.
ARTICLE VII
OFFICERS
Section 7.1 Officers. The Board may select natural persons who are
agents or employees of the Company to be designated as officers of the Company
("Officers"), with such titles as the Board shall determine. Any number of
offices may be held by the same person. The Board at its first meeting after
each annual meeting of Members shall choose a President, a Secretary and a
Treasurer. The Board at its first meeting may appoint such other Officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the Board. The Officers
shall hold office until their successors are chosen and qualify. Any Officer
elected or appointed by the Board may be removed at any time by the affirmative
vote of a majority of the Board. Any vacancy occurring in any office of the
Company shall be filled by the Board.
Section 7.2 The President. The President shall be the chief
executive officer of the Company, shall preside at all meetings of the Members
and the Board, shall have general and active management of the business of the
Company and shall see that all orders and resolutions of the Board are carried
into effect. The President shall execute bonds, mortgages and other contracts,
except where required or permitted by Law to be otherwise signed and executed
and except where signing and execution thereof shall be expressly delegated by
the Board to some other Officer or agent of the Company or except as otherwise
permitted in Section 7.3 hereof.
Section 7.3 The Vice President. In the absence of the President or
in the event of the President's inability to act, the Vice President, if any (or
in the event there be more than one Vice President, the Vice Presidents in the
order designated by the Directors, or in the absence of any designation, then in
the order of their election) shall perform the duties of the President, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the President. The Vice Presidents, if any, shall perform such other duties
and have such other powers as the Board may from time to time prescribe.
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Section 7.4 The Secretary and Assistant Secretary. The Secretary
shall be responsible for filing legal documents and maintaining records for the
Company. The Secretary shall attend all meetings of the Board and all meetings
of the Members and record all the proceedings of the meetings of the Company and
of the Board in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. The Secretary shall give, or cause to
be given, notice of all meetings of the Members and special meetings of the
Board, and shall perform such other duties as may be prescribed by the Board or
President, under whose supervision the Secretary shall be. The Assistant
Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board (or if there be no such determination, then in order of
their election) shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
Section 7.5 The Treasurer and Assistant Treasurer. The Treasurer
shall have the custody of the Company funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Company as may be ordered
by the Board, taking proper vouchers for such disbursements, and shall render to
the President and the Board, at its regular meetings, or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
Section 7.6 Officers as Agents. The Officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the
Board, are agents of the Company for the purpose of the Company's business, and
the actions of the Officers taken in accordance with such powers shall bind the
Company.
Section 7.7 Duties of Board and Officers. Except to the extent
modified herein, each Director and Officer shall have the fiduciary duty of
loyalty and care similar to those of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
ARTICLE VIII
DISTRIBUTIONS
Section 8.1 Except as otherwise provided in Article XIII hereof
(relating to the dissolution of the Company) or a buy back of PIShares or
RIShares pursuant to Article V hereof, any distribution of cash or other assets
of the Company shall be made solely to Members of the Company owning PIShares,
such distributions to be made pro rata in accordance with the Liquidation
Preference thereof.
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Section 8.2 Distribution Rules. All distributions pursuant to
Section 8.1 hereof shall be at such times and in such amounts as shall be
determined by the Board in its sole discretion.
Section 8.3 Limitations on Distribution. Notwithstanding any
provision to the contrary contained in this Agreement, the Company, and the
Board on behalf of the Company, shall not make a distribution to any Member on
account of its Interest in the Company if such distribution would violate
Section 18-607 of the Delaware Act or other applicable Law.
ARTICLE IX
BOOKS AND RECORDS
Section 9.1 Books, Records and Financial Statements.
(i) At all times during the continuance of the Company, the
Company shall maintain, at its principal place of business, separate books
of account for the Company that shall show a true and accurate record of
all costs and expenses incurred, all charges made, all credits made and
received and all income derived in connection with the operation of the
Company business in accordance with generally accepted accounting
principles consistently applied, and, to the extent inconsistent
therewith, in accordance with this Agreement. Such books of account,
together with a copy of this Agreement and of the Certificate, shall at
all times be maintained at the principal place of business of the Company
and shall be open to inspection and examination at reasonable times by
each Member and its duly authorized representative for any purpose
reasonably related to such Member's interest in the Company.
(ii) The Company, and the Board on behalf of the Company, shall
prepare and maintain, or cause to be prepared and maintained, the books of
account of the Company. The Company, and the Board on behalf of the
Company, shall prepare and file, or cause to be prepared and filed, all
applicable federal and state tax returns or forms, if any.
Section 9.2 Accounting Method. For both financial and tax reporting
purposes, the books and records of the Company shall be kept on the accrual
method of accounting applied in a consistent manner in accordance with generally
accepted accounting principles and shall reflect all Company transactions and be
appropriate and adequate for the Company's business.
Section 9.3 Annual Audit. At any time at a Member's sole discretion,
the financial statements of the Company may be audited by an independent
certified public accountant, selected by such Member, with such audit to be
accompanied by a report of such accountant containing its opinion. The cost of
such audits will be an expense of the Company. A copy of any such audited
financial statements and accountant's report will be made available for
inspection by the Members.
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ARTICLE X
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 10.1 Liability. Except as otherwise provided by the Delaware
Act, 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 no Member or Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or Manager.
Section 10.2 Exculpation.
(i) To the fullest extent permitted by applicable law, no Covered
Person shall be liable to the Company or any other Person bound by this
Agreement for any loss, 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 and in a manner reasonably believed to be within the
scope of authority conferred on such Covered Person by this Agreement,
except that a Covered Person shall be liable for any such loss, damage or
claim incurred by reason of such Covered Person's gross negligence or
willful misconduct.
(ii) 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 as to matters
the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
Section 10.3 Fiduciary Duty. To the extent that, at law or in
equity, a Covered Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any Member or Manager, a Covered Person
acting under this Agreement shall not be liable to the Company or to any Person
bound by this Agreement for its 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.
Section 10.4 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 and in a manner reasonably believed to be within the
scope of authority conferred on such Covered Person by this Agreement, 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 gross
negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 10.4 shall be provided
out of and to the extent of Company assets only, and no Covered Person shall
have any personal liability with respect to such indemnity.
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Section 10.5 Expenses. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by a Covered Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, 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 repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as authorized in
Section 10.4 hereof.
Section 10.6 Insurance. The Company may purchase and maintain
insurance, to the extent and in such amounts as the Board shall, in its sole
discretion, deem reasonable, on behalf of Covered Persons and such other Persons
as the Board shall determine, against any liability that may be asserted against
or expenses that may be incurred by any such Person in connection with the
activities of the Company or such indemnities, regardless of whether the Company
would have the power to indemnify such Person against such liability under the
provisions of this Agreement. The Company may enter into indemnity contracts
with Covered Persons and such other Persons as the Board shall determine and
adopt written procedures pursuant to which arrangements are made for the
advancement of expenses and the funding of obligations under Section 10.5 hereof
and containing such other procedures regarding indemnification as are
appropriate.
Section 10.7 Outside Businesses. Notwithstanding any duty otherwise
existing at law or in equity, any Member, Manager or Affiliate thereof may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Company, and the Company and the Members shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper.
Notwithstanding any duty otherwise existing at law or in equity, no Member,
Manager or Affiliate thereof shall be obligated to present any particular
investment opportunity to the Company even if such opportunity is of a character
that, if presented to the Company, could be taken by the Company, and any Member
or Affiliate thereof shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment opportunity.
ARTICLE XI
ADDITIONAL MEMBERS
Section 11.1 Admission. By approval of all of the Members, including
Members owning RIShares, the Company is authorized to admit any Person as an
additional member of the Company (each, an "Additional Member" and collectively,
the "Additional Members"), to hold such number and type of interest as the
Members shall unanimously agree upon. Each such Person shall be admitted as an
Additional Member at the time such Person (i) executes this Agreement or a
counterpart of this Agreement and (ii) is named as a Member on Schedule A
hereto.
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ARTICLE XII
ASSIGNABILITY AND SUBSTITUTE MEMBERS
Section 12.1 Assignability of Interests.
(i) No Member may assign the whole or any part of its Interests
without the prior written consent of each other Member, including Members
holding RIShares, which consent may be given or withheld in the sole and
absolute discretion of each such other Member. If the prior written
consent of all of the other Members is obtained for any such assignment,
such assignment shall, nevertheless, not entitle the assignee to become a
Substitute Member or to be entitled to exercise or receive any of the
rights, powers or benefits of a Member other than the right to receive
distributions to which the assigning Member would be entitled, unless the
assigning Member designates, in a written instrument delivered to the
other Members, its assignee to become a Substitute Member and all of the
other Members, in their sole and absolute discretion, consent to the
admission of such assignee as a Member; and provided further, that such
assignee shall not become a Substitute Member without having first
executed an instrument reasonably satisfactory to the other Members
accepting and agreeing to the terms and conditions of this Agreement,
including a counterpart of this Agreement, and without having paid to the
Company a fee sufficient to cover all reasonable expenses of the Company
in connection with such assignee's admission as a Substitute Member.
(ii) If a Member assigns all of its Interest in the Company and the
assignee of such interest is entitled to become a Substitute Member
pursuant to this Section 12.1, such assignee shall be admitted to the
Company effective immediately prior to the effective date of the
assignment, and, immediately following such admission, the assigning
Member shall cease to be a member of the Company. In such event, the
Company shall continue without dissolution.
(iii) If a Member assigns all or part of its Interest in accordance
with this Section 12.1, the certificate evidencing the Interest shall be
delivered to the Company, executed by the Member and assignee on the
reverse side thereof. After receiving the Member's certificate, the
Company shall cancel such certificate and issue a new certificate to the
assignee for the number of shares being assigned, and, if applicable,
shall issue to the Member a new certificate for the number of shares that
the Member did not assign and continues to own.
Section 12.2 Recognition of Assignment by Company. No assignment, or
any part thereof, that is in violation of this Article XII shall be valid or
effective, and neither the Company nor the Members shall recognize the same.
Neither the Company nor the Members shall incur any liability as a result of
refusing to make any distributions to the assignee of any such invalid
assignment.
Section 12.3 Effective Date of Assignment. Any valid assignment of a
Member's Interest, or part thereof, pursuant to the provisions of Section 12.1
hereof shall be effective as of the close of business on the day in which all
the other Members give their written
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consent to such assignment. The Company shall, from the effective date of such
assignment, thereafter pay all further distributions on account of the Interest
(or part thereof) so assigned, to the assignee of such Interest, or part
thereof.
Section 12.4 Pledge. No Member may pledge or otherwise encumber the
whole or any part of its Interests without the prior written consent of each
other Member, including holders of RIShares, which consent may be given or
withheld in the sole and absolute discretion of each such other Member.
ARTICLE XIII
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 No Dissolution. The Company shall not be dissolved by
the admission of Additional Members or Substitute Members in accordance with the
terms of this Agreement.
Section 13.2 Events Causing Dissolution. The Company shall be
dissolved and its affairs shall be wound up upon the occurrence of any of the
following events:
(i) the written consent of all Members;
(ii) the termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event which
terminates the continued membership of the last remaining member of the
Company in the Company unless the Company is continued without dissolution
in a manner permitted by the Delaware Act; or
(iii) the entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Delaware Act.
Section 13.3 Liquidation. Upon dissolution of the Company, the Board
shall carry out the winding up of the Company and shall immediately commence to
wind up the Company's affairs (collectively, the "Liquidation"); provided,
however, that a reasonable time shall be allowed for the orderly liquidation of
the assets of the Company and the satisfaction of liabilities to creditors so as
to enable the Members to minimize the normal losses attendant upon a
liquidation. The proceeds of liquidation shall be distributed in the following
order and priority:
(i) to creditors of the Company, including Members, Directors,
Officers, Managers and agent of the Company who are creditors, to the
extent otherwise permitted by law, in satisfaction of the liabilities of
the Company (whether by payment or the making of reasonable provision for
payment thereof);
(ii) to the holders of PIShares, pro rata in accordance with the
Liquidation Preference thereof, until such holders have received an amount
equal to the aggregate Liquidation Preference of all PIShares then
outstanding; and
(iii) to the holders of RIShares, if any, pro rata based upon the
number of RIShares outstanding.
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Section 13.4 Termination. The Company shall terminate when all of
the assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article XIII and the Certificate
shall have been canceled in the manner required by the Delaware Act.
Section 13.5 Claims of the Members. The holders of PIShares shall
look solely to the Company's assets for the return of their Liquidation
Preference, and if the assets of the Company remaining after payment of or due
provision for all debts, liabilities and obligations of the Company are
insufficient to return such Liquidation Preference, the holders of PIShares
shall have no recourse against the Company or any other Member. If the assets of
the Company remaining after payment of or due provision for all debts,
liabilities and obligations of the Company and payments to holders of PIShares
are insufficient to pay holders of RIShares the amount of their Capital
Contribution, the holders of RIShares shall have no recourse against the Company
or any other Member.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices. All notices provided for in this Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, mailed via an overnight courier service, telecopied or mailed by
registered or certified mail, as follows:
(i) If given to the Company at the address specified in Section
2.5 of this Agreement;
(ii) if given to a Director, at such Director's mailing address as
provided to the Company; or
(iii) if given to any Member at the address set forth opposite its
name on Schedule A attached hereto, or at such other address as such
Member may hereafter designate by written notice to the Company.
All such notices shall be deemed to have been given when received.
Section 14.2 Failure to Pursue Remedies. The failure of any party to
seek redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
Section 14.3 Cumulative Remedies. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by Law or otherwise.
Section 14.4 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of all of the parties and, to the extent permitted by
this Agreement, their successors, legal representatives and assigns.
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Section 14.5 Interpretation. Throughout this Agreement, nouns,
pronouns and verbs shall be construed as masculine, feminine, neuter, singular
or plural, whichever shall be applicable. All references herein to "Articles,"
"Sections" and "Paragraphs" shall refer to corresponding provisions of this
Agreement.
Section 14.6 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 were omitted.
Section 14.7 Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all parties hereto had signed
the same document. All counterparts shall be construed together and shall
constitute one instrument.
Section 14.8 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 14.9 Governing Law. This Agreement and the rights of the
parties hereunder shall be interpreted in accordance with the laws of the State
of Delaware, and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 14.10 Amendments. Any amendment to this Agreement shall be
adopted and be effective as an amendment hereto if it received the affirmative
vote of all of the Members, including Members holding RIShares, provided that
such amendment be in writing and executed by all of the Members.
Section 14.11 No Implied Rights or Remedies. Nothing expressed or
implied shall be construed to confer upon any Person, except the Members and
Managers, any rights or remedies under or by reason of this Agreement.
Section 14.12 Effectiveness. Pursuant to Section 18-201(d) of the
Delaware Act, this Agreement shall be effective as of the time of the filing of
the Certificate of Formation with the Office of the Delaware Secretary of State
on August 19, 2003 at 9:49 a.m. EDT.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as the
Member as of the date first above stated.
MAAX CANADA INC.
By: /s/ Richard Garneau
-----------------------
Name: Richard Garneau
Title: Vice-President
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