EXHIBIT 3.6
LIMITED LIABILITY COMPANY AGREEMENT
OF
BFS IP, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of BFS IP, LLC is made and
entered into effective as of December 11, 2000 (the "Effective Date"), by and
between Builders FirstSource - Texas Group, L.P., a Texas limited partnership
("Texas Group"), as the sole member, and BFS IP, LLC, a Delaware limited
liability company (the "Company").
WITNESSETH:
For and in consideration of the mutual covenants set forth herein,
the undersigned hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"ACT" means the Delaware Limited Liability Company Act and any
successor statute, as amended from time to time.
"AGREEMENT" means this Limited Liability Company Agreement of the
Company, as it may be amended from time to time in accordance with the terms of
this Agreement.
"APPROVAL OF THE BOARD" or "APPROVED BY THE BOARD" means the
approval of a majority of the then elected and qualified Managers on the Board.
For purposes of taking any action or voting on any matter coming before the
Board, each Manager shall have one vote.
"ASSISTANT SECRETARY" shall have the meaning given in Section
4.04(g) of this Agreement.
"ASSISTANT TREASURER" shall have the meaning given in Section
4.04(e) of this Agreement.
"BOARD" shall have the meaning provided in Section 3.01 of this
Agreement.
"CERTIFICATE" shall mean a certificate issued by the Company to the
Member evidencing ownership of one or more Company Units.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company as originally filed with the Secretary of State of the State of Delaware
on the Effective Date and as amended or restated from time to time.
"CHIEF EXECUTIVE OFFICER" shall have the meaning given in Section
4.04(a) of this Agreement.
"CODE" means the Internal Revenue Code of 1986 and any successor
statute, as amended from time to time.
"COMPANY" means BFS IP, LLC, a Delaware limited liability company.
"COMPANY ASSETS" means all assets, whether tangible or intangible
and whether real, personal or mixed, at any time owned by the Company.
"COMPANY INTEREST" shall mean the ownership interest of the Member
in the Company, represented by the Company Units held by the Member.
"COMPANY UNIT" shall mean a unit of ownership, representing the
ownership of the economic rights in the Company.
"EFFECTIVE DATE" shall have the meaning given in the introductory
paragraph to this Agreement.
"MANAGER" means any Person hereafter elected to act as a Manager of
the Company as provided in this Agreement (each in the capacity as a Manager of
the Company), but does not include any Person who has ceased to be a Manager of
the Company.
"MASTER AGREEMENT" shall have the meaning given in Section 2.04 of
this Agreement.
"MASTER INTEREST" shall have the meaning given in Section 2.04 of
this Agreement.
"MEMBER" shall have the meaning given in Section 2.01 of this
Agreement.
"OFFICERS" or an "OFFICER" shall have the meaning given in Section
4.01 of this Agreement.
"PERSON" includes an individual, partnership, limited partnership,
limited liability company or partnership, foreign limited liability company,
trust, estate, corporation, custodian, trustee, executor, administrator, nominee
or entity in a representative capacity.
"PRESIDENT" shall have the meaning given in Section 4.04(b) of this
Agreement.
"PROCEEDING" shall have the meaning given in Section 8.01 of this
Agreement.
"SECRETARY" shall have the meaning given in Section 4.04(f) of this
Agreement.
"TEXAS GROUP" shall have the meaning given in the introductory
paragraph of this Agreement.
"TREASURER" shall have the meaning given in Section 4.04(d) of this
Agreement.
"VICE PRESIDENT" shall have the meaning given in Section 4.04(c) of
this Agreement.
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ARTICLE II
ORGANIZATION
2.01 FORMATION OF THE COMPANY. The Company is formed as a limited
liability company pursuant to the Act. Texas Group shall be the sole member and
is hereinafter referred to as the "Member."
2.02 NAME. The name of the Company shall be "BFS IP, LLC." All
business and affairs of the Company shall be conducted solely under, and all
Company Assets shall be held solely in, such name unless otherwise determined by
the Board.
2.03 EFFECTIVE DATE. The Company shall have perpetual existence
beginning on the Effective Date and shall continue under this Agreement (as
amended from time to time) unless dissolved upon the occurrence of an event that
causes the dissolution of the Company in accordance with the provisions of this
Agreement, and thereafter to the extent provided by applicable law, until wound
up and terminated as provided herein.
2.04 PURPOSES AND SCOPE OF BUSINESS. The business and purposes of
the Company are (a) to enter into Builders FirstSource Intellectual Property,
L.P., a newly formed Texas limited partnership (the "Master Partnership"), as
the sole general partner thereof, and in connection therewith, to enter into and
execute, as a general partner, the Limited Partnership Agreement of the Master
Partnership (as may be amended from time to time, the "Master Agreement"), (b)
to own a general partner's interest in the Master Partnership (the "Master
Interest"), (c) to do all acts and perform all obligations as a general partner
in the Master Partnership, including, without limitation, taking any and all
actions necessary, appropriate, convenient, permitted, allowed, or required of
the Company under the Master Agreement, and (d) to buy, sell, exchange or
otherwise acquire, hold, invest in, and deal with the Company Assets. Subject to
the terms and conditions of this Agreement, the Company shall have the power and
authority to do all such acts and things as are permitted and authorized under
the Act and as may be necessary, desirable, expedient, convenient for, or
incidental to, the furtherance and accomplishment of the foregoing objective and
purpose and for the protection and benefit of the Company.
2.05 DOCUMENTS. The Member hereby adopts the certificate of
formation of the Company ("Certificate of Formation") which Donald F. McAleenan
filed in the office of the Secretary of State of the State of Delaware in
accordance with the provisions of the Act. The Company shall promptly execute
and duly file with the proper offices in each state in which the Company may
conduct the activities hereinafter authorized, one or more certificates as
required by the laws of each such state in order that the Company may lawfully
conduct the business, purposes, and activities herein authorized in each such
state, and the Company shall take any other action or measures necessary in such
state or states for the Company to conduct such activities.
2.06 PRINCIPAL PLACE OF BUSINESS. The principal place of business of
the Company shall be at 2200 Ross Avenue, Suite 4900 West, Dallas, Texas 75201.
The Company may locate its place(s) of business at any other place or places as
the Board may from time to time deem necessary or advisable.
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2.07 REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered agent in the State of Delaware is The Corporation Trust Company, and
the post office address of the registered agent is 1209 Orange Street,
Wilmington, Delaware 19801. The Company may change its registered office to any
other place or places as the Board may from time to time deem necessary or
advisable. The Company may change its registered agent to any other Person as
the Board may from time to time deem necessary or advisable.
2.08 NO PERSONAL LIABILITY OF MEMBERS, MANAGERS, OFFICERS, ETC.
Notwithstanding anything contained in this Agreement to the contrary and except
as otherwise provided by the 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. Neither the Member nor any
Manager of the Company shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being the Member or
acting as a Manager of the Company. No Manager, Officer, employee, or agent of
the Company shall be subject in such capacity to any personal liability
whatsoever to any Person, other than the Company or its Member, in connection
with the assets or the affairs of the Company, save only liability to the
Company arising from bad faith, willful misfeasance, gross negligence or
reckless disregard for his duty to such Person; and, subject to the foregoing
exception, all such Persons shall look solely to the Company Assets for
satisfaction of claims of any nature arising in connection with the affairs of
the Company.
2.09 CERTIFICATED COMPANY UNITS. The Company hereby irrevocably
elects that all Company Units in the Company shall be securities governed by
Article 8 of the Uniform Commercial Code. Each certificate evidencing Company
Units in the Company shall bear the following legend: "This certificate
evidences an interest in BFS IP, 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. Certificates
for certificated units of the Company will be in the form Approved by the Board.
The Certificates must be signed by an authorized Manager or Officer of the
Company.
ARTICLE III
MANAGEMENT
3.01 MANAGEMENT OF THE COMPANY. Except as otherwise provided herein,
(i) the powers of the Company shall be exercised solely by or under the
authority of, and the business and affairs of the Company shall be managed
solely under the direction of, a board of Managers (the "Board"), and (ii) the
Board may make all decisions and take all actions for the Company not otherwise
provided in this Agreement. Unless otherwise provided for herein, Approval of
the Board shall be necessary to conduct the business of the Company. Except for
actions for which the approval of the Member is expressly required by the Act,
the Certificate of Formation, or this Agreement, the Board may, from time to
time, delegate to one or more Persons such authority and duties of the Board as
the Board may deem advisable. Any delegation pursuant to this Section 3.01 may
be revoked at any time and with or without cause by the Board.
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3.02 NUMBER AND QUALIFICATIONS. The number of Managers on the Board
shall be at least one (1) but not more than nine (9), as may be determined by
the Member from time to time; provided, however, that no decrease in the number
of Managers shall have the effect of shortening the term of any incumbent
Manager. No Manager on the Board need be a Member, a Delaware resident, or a
United States citizen. The initial Managers shall be designated and appointed as
of the Effective Date by the Member.
3.03 VACANCY. Any Manager position to be filled, whether by reason
of an increase in the number of Managers on the Board or otherwise, shall be
filled by the Member. A Manager elected to fill a vacancy other than by reason
of an increase in the number of Managers on the Board shall be elected for the
unexpired term of its predecessor in office.
3.04 REMOVAL AND RESIGNATION. Any Manager on the Board may be
removed, with or without cause, by the Member. Any Manager may resign at any
time. The resignations must be made in writing and will take effect at the time
specified therein, or if no time is specified, at the time of its receipt by the
Member, the President, or the Secretary. The acceptance of a resignation will
not be necessary to make it effective, unless expressly provided in the
resignation.
3.05 MEETINGS OF THE BOARD. Meetings of the Board may be held when
called by a majority of the Managers on the Board. The Manager or Managers
calling any meeting shall cause notice to be given of such meeting, including
therein the time, date, and place of such meeting, to each Manager at least two
(2) business days before such meeting. The business to be transacted at, or the
purpose of, any meeting of the Board shall be specified in the notice or waiver
of notice of any such meeting. If fewer than all the Managers on the Board are
present in person, by telephone or by proxy, business transacted at any such
meeting shall be confined to the business or purposes specifically stated in the
notice or waiver of notice of such meeting. All meetings of the Board may be
held either within or without the State of Delaware at such place or places as
shall be determined from time to time by resolution of the Board.
3.06 METHODS OF VOTING; PROXIES. A Manager may vote either in
person, by telephone, by proxy executed in writing by the Manager, or by any
other method permitted under the Act or this Agreement; provided, however, that
the Person designated to act as proxy shall be a Manager. A telegram, telex,
cablegram or similar transmission by the Manager, or a photographic,
photostatic, facsimile or similar reproduction of a writing executed by the
Manager shall be treated as an execution in writing for purposes of this Section
3.06.
3.07 ORDER OF BUSINESS. At any meeting of the Board, business shall
be transacted in the order as the Board may determine from time to time. The
secretary of the meeting shall prepare minutes of the meeting and such minutes
shall be placed in the record books of the Company.
3.08 ATTENDANCE AND WAIVER OF NOTICE. Attendance of a Manager at any
Board meeting shall constitute a waiver of notice of such meeting, except where
a Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
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3.09 COMPENSATION OF MANAGERS. Managers, as such, shall not receive
any stated salary for their services. Expenses of attendance, if any, may be
allowed for attendance at each meeting of the Board; provided, however, that
nothing contained in this Agreement shall be construed to preclude any Manager
from serving the Company in any other capacity and receiving compensation for
such service.
3.10 COMMITTEES. The Board may, by resolution, designate (a) from
among the Managers one or more committees, each of which shall be comprised of
at least one Manager, and (b) one or more of the Managers as alternate members
of any committee, who may, subject to any limitations imposed by the Board,
replace absent or disqualified Managers at any meeting of that committee. Such
committee shall have and may exercise all of the authority of the Board, subject
to the limitations set forth in the Act.
3.11 ACTIONS WITHOUT A MEETING. Any action required or permitted to
be taken at a meeting of the Board or any committee thereof may be taken without
a meeting, without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the Managers or members of the
committee, as the case may be, having not fewer than the minimum number of votes
that would be necessary to take the action at a meeting at which all Managers or
committee members, as the case may be, entitled to vote on the action were
present and voted. Such consent shall have the same force and effect, as of the
date stated therein, as a vote of such Managers or members of the committee, as
the case may be, and may be stated as such in any document or instrument filed
with the Secretary of State of the State of Delaware or in any certificate or
other document delivered to any person or entity. The signed consent shall be
placed in the record books of the Company.
3.12 TELEPHONE AND SIMILAR MEETINGS. The Board, or members of any
committee thereof, may participate in and hold meetings by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Such participation in any such
meeting shall constitute presence in person at such meeting, except where a
Person participates in such meeting for the express purpose of objecting to the
transaction of any business on the ground that such meeting is not lawfully
called or convened.
ARTICLE IV
OFFICERS
4.01 DESIGNATION. The Board may designate, as it deems advisable,
one or more Persons who are individuals to be officers of the Company
("Officers" or an "Officer"). Unless the Board decides otherwise, any Officer so
designated shall have such authority and perform such duties as the Board may
delegate such Officer and that are normally associated with that office in the
context of a Delaware corporation as provided under the Delaware General
Corporation Law, subject to (a) any specific delegation of authority and duties
made to such Officer by the Board pursuant to this Section 4.01 and to Section
4.04, or (b) any delegation of authority and duties made to the Board pursuant
to Section 3.01 of this Agreement. The Officers will include a President
("President"), Secretary ("Secretary"), one or more Vice Presidents ("Vice
President"), and any other Officers as the Board may appoint including, but not
limited to, a Treasurer
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("Treasurer"), and one or more assistant Secretaries or Treasurers ("Assistant
Secretary" or "Assistant Treasurer").
4.02 TERM. Each Officer shall hold office for the term designated
and" until his successor shall be duly designated and shall qualify, or until
his death, resignation, or removal as provided in this Agreement. Any Person may
hold any number of offices.
4.03 QUALIFICATIONS. No Officer need be a Manager, Member, Delaware
resident, or United States citizen. Designation of a Person as an Officer shall
not of itself create any contract rights.
4.04 DUTIES. Officers will have the authority and perform duties in
the management of the Company as provided in this Article IV of the Agreement.
(a) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will
have those powers and duties delegated by the Board.
(b) PRESIDENT. Subject to the direction of the Board, the
President will have general management and control of the business and property
of the Company in its ordinary course of business with all such powers in
respect to general management and control as are reasonably incident to such
responsibilities.
(c) VICE PRESIDENT. The Vice President will have those powers
and duties delegated by the Board or the President. If more than one, the Vice
Presidents, in the order designated by the Board, or if in the absence of such
designation, as determined by the length of term each has held the office of the
Vice President, will exercise the powers of the President during the President's
absence or incapacitation.
(d) TREASURER. The Treasurer will have the care and custody of
all of the Company funds and shall deposit them in such banks or other
depositories as the Board directs and approves. The Treasurer shall keep a
complete and accurate account of all monies received and paid on account of the
Company and must render a statement of the Company accounts whenever the Board
so requires. Except as otherwise provided by the Board, the Treasurer shall
perform all other necessary acts and duties in connection with the
administration of the Company's financial affairs and generally perform all the
duties ordinarily appertaining to the office of the Treasurer. In the absence of
the Treasurer, the person designated by the Board, if any, will perform the
Treasurer's duties.
(e) ASSISTANT TREASURER. Each assistant Treasurer will have
those powers and duties delegated by the Board or President. If more than one,
the Assistant Treasurers, in the order designated by the Board or, if in the
absence of any designation, as determined by the length of term that each has
held the office of Assistant Treasurer, will exercise the powers of the
Treasurer during the Treasurer's absence or incapacitation.
(f) SECRETARY. Except as otherwise provided in this Agreement,
the Secretary shall keep the minutes of all meetings of the Board or consents in
lieu of such meetings in the Company's minute books, and shall cause notice of
the meetings to be given when requested by any person authorized to call a
meeting. The Secretary may sign with the President in the name
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of the Company, all contracts of the Company, The Secretary shall, in general,
perform such other duties incident to the office of the Secretary, or as
delegated by the Board or the President.
(g) ASSISTANT SECRETARY. Each assistant Secretary will have
those powers and duties delegated by the Board or the President. If more than
one, the Assistant Secretaries, in the order designated by the Board or, if in
the absence of such designation, as determined by the length of term each has
held the office of the Assistant Secretary, will exercise the powers of the
Secretary during the Secretary's absence or incapacitation,
4.05 REMOVAL AND RESIGNATION. Any Officer appointed by the Board may
be removed as such, with or without cause and at any time, by the Board whenever
in its judgment the best interests of the Company will be served thereby;
provided, however, that such removal shall be without prejudice to the contract
rights, if any, of the Person so removed. Any Officer of the Company may resign
as such at any time upon written notice to the Company. Such resignation shall
be made in writing and shall take effect at the time specified therein or, if no
time is specified therein, at the time of its receipt by the Board. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly provided in the resignation.
4.06 VACANCIES. The Board may fill any vacancy occurring at any time
and in any office of the Company.
4.07 COMPENSATION. The compensation, if any, of the Officers shall
be fixed from time to time by the Board; provided, however, that the Board may
delegate to one or more Managers who are Officers the authority to fix such
compensation.
ARTICLE V
CONTRIBUTIONS TO CAPITAL
5.01 FUNDING.
(a) The Member shall make capital contributions to the Company
at such times, in such manner, and in such amounts as the Member may determine
in its sole discretion.
(b) If the Board determines that the Company requires funds
for its day to day activities or for any other Company purpose, then the Board
may cause the Company to borrow funds from any person on terms Approved by the
Board.
(c) The Member shall not be obligated to provide additional
capital to the Company or its creditors by way of contribution, loan, or
otherwise beyond the amount of the capital contributions required of the Member
pursuant to this Section 5.01.
5.02 BENEFITS OF AGREEMENT. Nothing in this Agreement, and, without
limiting the generality of the foregoing, in this Article V, expressed or
implied, is intended or shall be construed to give to any creditor of the
Company or to any creditor of the Member or any other person or entity
whatsoever, other than the Member and the Company, any legal or equitable right,
remedy, or claim under or in respect of this Agreement or any covenant,
condition, or provision
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herein contained, and such provisions are and shall be held to be for the sole
and exclusive benefit of the Member and the Company.
ARTICLE VI
ACCOUNTING; DISTRIBUTIONS
6.01 TAX STATUS. Notwithstanding any provision contained in this
Agreement to the contrary, the parties agree that the Company, solely for
federal income tax purposes, will not be subject to the provisions of Subchapter
C or Subchapter K of the Code, but shall be disregarded as an entity separate
from the Member.
6.02 ACCOUNTING.
(a) The fiscal year of the Company shall end on the last day
of December of each year.
(b) The books of account of the Company shall be kept and
maintained at all times at the principal place of business of the Company or at
such other place or places Approved by the Board. The books of account shall be
maintained according to federal income tax principles using the accrual method
of accounting, consistently applied, and shall show all items of income and
expense.
6.03 BANK ACCOUNTS. Funds of the Company shall be deposited in a
Company account or accounts in the bank or banks as Approved by the Board.
Withdrawals from bank accounts shall only be made by such parties as may be
Approved by the Board.
6.04 DISTRIBUTIONS. The Company shall distribute funds to the Member
at such times and in such amounts as Approved by the Board, in its sole
discretion. In determining the amount of funds to distribute pursuant to this
Section 6.04, the Board may consider such factors as the need to allocate funds
to any reserves for Company contingencies or any other Company purposes that the
Board deems necessary or appropriate.
ARTICLE VII
DISSOLUTION, LIQUIDATION AND TERMINATION
7.01 DISSOLUTION.
(a) The Company shall be dissolved and its affairs shall be
wound up upon the first of the following to occur:
(i) The dissolution of the Member, unless continued by
its successors or assigns;
(ii) The sale or other disposition, not including an
exchange, of substantially all of the assets of the Company (except under
circumstances where
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all or a portion of the purchase price is payable after the closing of the sale
or other disposition); or
(iii) Subject to any obligations of the Company, when approved
by the Member.
(b) Dissolution of the Company shall be effective as of the
day on which the event occurs giving rise to the dissolution, but the Company
shall not terminate until there has been a winding up of the Company's business
and affairs, and the Company Assets have been distributed as provided in the Act
and in Section 7.02 of this Agreement.
7.02 LIQUIDATION AND TERMINATION. Upon dissolution of the Company,
the Board shall act as liquidator or may appoint one or more Managers or
officers (with his consent) as liquidators. The liquidators shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided in this Section 7.02 and in the Act. The costs of liquidation shall be
borne as a Company expense. Until final distribution, the liquidators shall
continue to operate the Company Assets and the Company's affairs with all the
power and authority of the Board. The steps to be accomplished by the
liquidators are as follows:
(a) As promptly as possible after dissolution and again after
final liquidation, the liquidator shall cause an accounting to be made by a
recognized firm of certified public accountants of the Company Assets and the
Company's liabilities and operations through the last day of the calendar month
in which the dissolution occurs or the final liquidation is completed, as the
case may be;
(b) The liquidator may cause all or any part of the Company
Assets to be sold to any Person (including, without limitation, to the Member)
as the liquidator shall reasonably determine, and any resulting gain or loss
from each such sale shall be computed and allocated to the Member;
(c) The liquidator shall pay, satisfy or discharge from
Company Assets all of the debts, liabilities and obligations of the Company
(including, without limitation, all expenses incurred in liquidation, but
excluding liabilities to the Member on account of its capital contributions) in
the order of priority as provided by law, or otherwise make adequate provision
for payment and discharge thereof (including, without limitation, the
establishment of a cash escrow fund for contingent liabilities in such amount
and for such term as the liquidator may reasonably determine);
(d) After payment, satisfaction or discharge of the Company's
debts, liabilities and obligations (or adequate provision therefor) has been
made pursuant to clause (c) of this Section 7.02, all remaining Company Assets
shall be distributed to the Member.
All distributions in kind of the Company Assets to the Member shall
be made subject to the liability relating to such Company Assets incurred or for
which the Company has committed prior to the date of termination of the Company
and such costs, expenses and liabilities shall be allocated to the distributee
in accordance with this Section 7.02.
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7.03 CERTIFICATE OF CANCELLATION. When all liabilities and obligations of the
Company have been paid or discharged, or adequate provision has been made
therefor, and all of the remaining Company Assets have been distributed to the
Member, the Company shall be terminated and a Certificate of Cancellation shall
be executed on behalf of the Company by a Manager (or such other Person or
Persons as the Act may require or permit) and shall be filed with the Office of
the Secretary of State of the State of Delaware, and the Board or such other
Person or Persons shall take such other actions, and shall execute, acknowledge
and file any and all other instruments, as may be necessary or appropriate to
reflect the dissolution and termination of the Company.
ARTICLE VIII
INDEMNIFICATION
8.01 MANDATORY INDEMNIFICATION OF THE MEMBER AND MANAGERS. Any
Person who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative
(hereafter a "Proceeding"), or any appeal in such a Proceeding or any inquiry or
investigation that could lead to such a Proceeding, by reason of the fact that
such Person is or was a Member or Manager, or while a Manager is or was serving
at the request of the Company as a director, manager, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, limited liability company or partnership, joint
venture, partnership, trust, sole proprietorship, employee benefit plan or other
enterprise, shall be indemnified by the Company against judgments, penalties
(including, without limitation, excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including reasonable attorneys'
fees) actually and reasonably incurred by such Person in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company. The provisions of
this Article VIII shall not apply to liabilities arising from such Person's bad
faith, willful misfeasance, gross negligence or reckless disregard for his duty
to the Company, as determined by a majority of disinterested Managers on the
Board, or if none, by the Member.
8.02 MANDATORY ADVANCEMENT OF EXPENSES. Expenses incurred by a
Person of the type entitled to be indemnified under Section 8.01 of this
Agreement in defending any Proceeding shall be paid or reimbursed by the Company
in advance of the final disposition of the Proceeding, without any determination
as to such Person's ultimate entitlement to indemnification under Section 8.01
of this Agreement, upon receipt of a written affirmation by such Person of such
Person's good faith belief that such Person has met the standard of conduct
necessary for indemnification under applicable law and a written undertaking by
or on behalf of such Person to repay all amounts so advanced if it shall
ultimately be determined that such Person is not entitled to be indemnified by
the Company as authorized in Section 8.01 of this Agreement or otherwise. The
written undertaking shall be an unlimited general obligation of the Person but
need not be secured and shall be accepted without reference to financial ability
to make repayment.
8.03 INDEMNIFICATION OF OFFICERS, EMPLOYEES AND AGENTS. The Company
shall indemnify and pay and advance expenses to an officer, employee or agent of
the Company to the same extent and subject to the same conditions under which it
may indemnify and pay and advance expenses to a Manager under this Article VIII;
and the Company shall indemnify and pay and advance
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expenses to any Person who is not or was not a Manager, officer, employee or
agent of the Company but who is or was serving at the request of the Company as
a manager, director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic limited liability
company or partnership, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any
liability asserted against such Person and incurred by such Person in such a
capacity or arising out of such Person's status as such to the same extent and
subject to the same conditions that the Company may indemnify and pay and
advance expenses to a Manager under this Article VIII.
8.04 NONEXCLUSIVITY OF RIGHTS. The indemnification and advancement
and payment of expenses provided by this Article VIII (a) shall not be deemed
exclusive of any other rights to which a Manager or other Person seeking
indemnification may be entitled under any statute, provision of the Certificate
of Formation, agreement, vote of disinterested Managers on the Board, or
otherwise, both as to action in such Person's official capacity and as to action
in another capacity while holding such office, (b) shall continue as to any
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnity and advancement and payment of expenses, and (c) shall inure
to the benefit of the heirs, executors, administrators, successors and assigns
of such Manager or other Person.
8.05 CONTRACT RIGHTS. The rights granted pursuant to this Article
VIII shall be deemed to be contract rights, and no amendment, modification or
repeal of this Article VIII shall have the effect of limiting or denying any
such rights with respect to actions taken or Proceedings arising prior to any
such amendment, modification or repeal.
8.06 INSURANCE. As Approved by the Board, the Company may purchase
and maintain insurance or other arrangement or both, at its expense, on behalf
of itself or any Person who is or was serving as a Manager, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
manager, director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic limited liability
company, partnership, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, against any
liability, expense or loss, whether or not the Company would have the power to
indemnify such Person against such liability under the provisions of this
Article VIII.
8.07 APPEARANCE AS A WITNESS. Notwithstanding any other provision of
this Article VIII, the Company may pay or reimburse expenses incurred by a
Person in connection with such Person's appearance as a witness or other
participation in a Proceeding at a time when such Person is not a named
defendant or respondent in the Proceeding.
8.08 SAVINGS CLAUSE. If this Article VIII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify and hold harmless each Manager or any
other Person indemnified pursuant to this Article VIII as to costs, charges and
expenses (including, without limitation, attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, to the fullest extent
permitted by any
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applicable portion of this Article VIII that shall not have been invalidated and
to the fullest extent permitted by applicable law.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents provided for or permitted to be
given under this Agreement shall be in writing and shall be given either by
depositing such writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering such writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement shall
be effective on receipt by the Person to whom sent. All notices, requests, and
consents to be sent to the Member shall be sent to or made at the address set
forth next to the Member's signature on the signature page attached hereto or
such other address as the Member may specify by notice to the Company or the
Board. Any notice, request, or consent to the Company or the Board must be given
to the Board at the following address: 2200 Ross Avenue, Suite 4900W, Dallas,
Texas 75201. Whenever any notice is required to be given by law, the Certificate
of Formation or this Agreement, a written waiver thereof, signed by the Person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice.
9.02 GOVERNING LAW; SEVERABILITY. This Agreement shall be governed
by and shall be construed in accordance with the law of the State of Delaware,
excluding any conflict-of-laws rule or principle that might refer the governance
or the construction of this Agreement to the law of another jurisdiction. If any
provision of this Agreement or the application thereof to any Person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other Persons or
circumstances shall not be affected thereby and such provision shall be enforced
to the fullest extent permitted by law.
9.03 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, the Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
9.04 HEADINGS AND SECTIONS. The headings in this Agreement are
inserted for convenience 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. Unless the context requires otherwise, all references in this Agreement
to Sections or Articles shall be deemed to mean and refer to Sections or
Articles of this Agreement.
9.05 NUMBERS AND GENDER. Where the context so indicates, the
masculine shall include feminine and neuter, and the neuter shall include the
masculine and feminine, and the singular shall include the plural.
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9.06 BINDING EFFECT. Except as otherwise provided in this Agreement
to the contrary, this Agreement shall be binding upon and inure to the benefit
of the Member, its successors and assigns.
9.07 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and shall be
binding upon the Member. All of such counterparts shall constitute the same
Agreement.
9.08 CONFLICTS OF INTEREST. Subject to the other express provisions
of this Agreement or except as otherwise expressly agreed in writing, each
Manager, Member and officer of the Company at any time and from time to time may
engage in and possess interests in other business ventures of any and every type
and description, independently or with others, including ones in competition
with the Company, with no obligation to offer to the Company or the Member,
Manager or officer the right to participate therein.
9.09 AMENDMENT OR MODIFICATION OF AGREEMENT. This Agreement may be
amended or modified from time to time only by a written instrument adopted by
the Member and the Company.
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IN WITNESS WHEREOF, this Agreement is executed and delivered as of
the date first written above.
"THE MEMBER"
BUILDERS FIRSTSOURCE - TEXAS GROUP, L.P., a
Texas limited partnership
By: ____________________________
Donald F. McAleenan,
Senior Vice President
"THE COMPANY"
BFS IP, LLC,
a Delaware limited liability company
By: BUILDERS FIRSTSOURCE - TEXAS
GROUP, L.P., sole member
By: ____________________________
Donald F. McAleenan,
Senior Vice President
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