AMENDED AND RESTATED OPERATING AGREEMENT OF LINEAR LLC
Exhibit 3.36
THIS OPERATING AGREEMENT OF LINEAR LLC (“Agreement”), is entered into effective as of January
7, 2010, by Nortek, Inc., a Delaware corporation (the “Member”).
The Member, by execution of this Agreement, hereby forms a limited liability company pursuant
to and in accordance with the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Limited Liability Company Act as set forth in Title
2.5, Chapter 1 et seq. of the California Corporations Code, as herafter amended
from time to time (the “Act”), and hereby agrees as follows:
1. Name. The name of the limited liability company formed hereby is LINEAR LLC (the
“Company”).
2. Certificates. Articles of Organization (the “Articles”) for the Company were filed
on December 22, 2003 with the Secretary of State of the State of California, and the Member and any
Officers (defined below), and each of them, is authorized to execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify
to do business in any jurisdiction in which the Company may wish to conduct business.
3. Purpose. The primary object and purpose of the Company, and the nature of the
business to be conducted and promoted by the Company, is to conduct all activities necessary or
appropriate in connection with the foregoing.
4. Term of Company. The term of existence of the Company shall commence on the
effective date of the filing of the Articles with the California Secretary of State, and shall
continue until terminated by the provisions of this Agreement or as provided by law.
5. Principal Business Office. The principal business office of the Company shall be
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other location as may hereafter be
determined by the Member.
6. Registered Office. The address of the registered office of the Company in the
State of California is located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
7. Registered Agent. The name and address of the registered agent for service of
process on the Company in the State of California is Corporation Service Company which will do
business in California as CSC-Lawyers Incorporating Service.
8. Member. The mailing address of the Member is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
9. Limited Liability. 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, and the Member shall not be obligated
personally for any such debt, obligation or liability of the Company solely by reason of being
a member of the Company.
10. Capital Contributions. The Member is deemed admitted as the Member of the Company
upon the filing of the Articles with the California Secretary of State. The Member will contribute
the Interest to the capital of the Company as its initial capital contribution.
11. Additional Contributions. The Member is not required to make any additional
capital contribution to the Company. However, the Member may make additional capital contributions
to the Company in such amounts and at such times as the Member determines in its sole and absolute
discretion.
12. Title to Assets. All assets of the Company, whether real or personal property,
shall be held in the name of the Company.
13. Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated to the Member.
14. Distributions. Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to any Member on account of
its interest in the Company if such distribution would violate Section 17254 of the Act or other
applicable law.
15. Management. In accordance with Section 17150 of the Act, management of the
Company shall be vested in the Member. The Member shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise, possessed by members of a limited liability company
under the Act. The Member has the authority to bind the Company and any and all agreements,
contracts and other documents or instruments affecting or relating to the business and affairs of
the Company may be executed on the Company’s behalf by the Member alone.
16. Officers. The Member may, from time to time as it deems advisable, appoint
officers of the Company (the “Officers”) and assign in writing titles (including, without
limitation, President, Vice President, Secretary, and Treasurer) to any such person. Unless the
Member decides otherwise, if the title is one commonly used for officers of a business corporation
formed under the California General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 16 may be revoked at any time by the Member.
17. Other Business. The Member may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures or the income or
profits therefrom by virtue of this Agreement.
18. Exculpation and Indemnification. No Member or Officer shall be liable to the
Company, or any other person or entity who has an interest in the Company, for any loss,
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damage or claim incurred by reason of any act or omission performed or omitted by such Member
or Officer in good faith on behalf of the Company and in a manner reasonably believed to be within
the scope of the authority conferred on such Member or Officer by this Agreement, except that a
Member or Officer shall be liable for any such loss, damage or claim incurred by reason of such
Member’s or Officer’s willful misconduct. To the fullest extent permitted by applicable law, a
Member or Officer shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Member or Officer by reason of any act or omission performed or omitted by
such Member or Officer in good faith on behalf of the Company and in a manner reasonably believed
to be within the scope of the authority conferred on such Member or Officer by this Agreement,
except that no Member or Officer shall be entitled to be indemnified in respect of any loss, damage
or claim incurred by such Member or Officer by reason of willful misconduct with respect to such
acts or omissions; provided, however, that any indemnity under this Section 19 shall be provided
out of and to the extent of Company assets only, and no Member shall have personal liability on
account thereof.
19. Assignments. The Member may assign in whole or in part its membership interest in
the Company. If a Member transfers all of its membership interest in the Company pursuant to this
Section, the transferee shall be admitted to the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this Agreement. Such admission
shall be deemed effective immediately prior to the transfer, and, immediately following such
admission, the transferor Member shall cease to be a member of the Company.
20. Resignation. The Member may resign from the Company. If the Member resigns
pursuant to this Section, an additional member shall be admitted to the Company, subject to Section
21, upon its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective immediately prior to the
resignation, and, immediately following such admission, the resigning Member shall cease to be a
member of the Company.
21. Admission of Additional Members. One (1) or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
22. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of
the following: (i) the written consent of the Member, (ii) the retirement, resignation or
dissolution of the Member or the occurrence of any other event which terminates the continued
membership of the Member in the Company unless the business of the Company is continued in a manner
permitted by the Act, or (iii) the entry of a decree of judicial dissolution under Section 17351 of
the Act.
b. The bankruptcy of the Member will not cause the Member to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company shall continue
without dissolution.
c. In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an
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orderly manner), and the assets of the Company shall be applied in the manner, and in the
order of priority, set forth in Section 17353 of the Act.
23. Bank Accounts. All funds of the Company shall be deposited in one or more
accounts with one or more recognized financial institutions in the name of the Company, at such
locations as shall be determined by the Member. Withdrawal from such accounts shall require the
signature of the Member or such other person or persons as the Member may designate.
24. Tax Status of Company. So long as the Company has only one member, the Company
shall be disregarded as an entity separate from the Member as provided in Treasury Regulation
Section 301.7701-3(b), as hereafter amended or supplemented.
25. Separability of Provisions. Each provision of this Agreement shall be considered
separable and if for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity, unenforceability or
illegality shall not impair the operation of or affect those portions of this Agreement which are
valid, enforceable and legal.
26. Construction of Agreement. This Agreement shall inure to the benefit of, and
shall bind, the parties hereto and their respective representatives, successors and assigns. Any
agreement to pay any amount and any assumption of liability herein contained, express or implied,
shall be only for the benefit of the Member and its representatives, successors and assigns, and
such agreements and assumptions shall not inure to the benefit of the obligees of any indebtedness
or any other party, whomsoever, deemed to be a third-party beneficiary of this Agreement.
27. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original of this Agreement.
28. Entire Agreement. This Agreement constitutes the entire agreement of the Member
with respect to the subject matter hereof.
29. Governing Law. This Agreement shall be governed by, and construed under, the laws
of the State of California (without regard to conflict of laws principles), all rights and remedies
being governed by said laws.
30. Amendments. This Agreement may not be modified, altered, supplemented or amended
except pursuant to a written agreement executed and delivered by the Member.
IN WITNESS WHEREOF, the undersigned Member, intending to be legally bound hereby, has duly
executed this Agreement as of the ____ day of January, 2010.
| NORTEK, INC., a Delaware Corporation |
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| By: | ||||
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