Limited Liability Company Agreement

Exhibit 3.16


AAVID THERMALLOY SW, LLC


A DELAWARE LIMITED LIABILITY COMPANY


LIMITED LIABILITY COMPANY AGREEMENT


DATED AS OF FEBRUARY 2, 2000


TABLE OF CONTENTS


Page ARTICLE I - DEFINITIONS.............................................................................1
1.1 DEFINITIONS.............................................................................1
1.2 CONSTRUCTION............................................................................4
1.3 INCLUDING...............................................................................4


ARTICLE II - ORGANIZATION............................................................................4
2.1 FORMATION...............................................................................4
2.2 NAME....................................................................................5
2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER OFFICES....................5
2.4 PURPOSES................................................................................5
2.5 POWERS OF THE COMPANY...................................................................5
2.6 FOREIGN QUALIFICATION...................................................................7
2.8 NO STATE-LAW PARTNERSHIP................................................................7


ARTICLE III - MEMBERSHIP; CAPITAL CONTRIBUTIONS; ADDITIONAL INTERESTS.................................8
3.1 MEMBERS.................................................................................8
3.2 NO LIABILITY OF MEMBERS.................................................................9
3.3 INITIAL CAPITAL CONTRIBUTIONS...........................................................9
3.4 ISSUANCE OF ADDITIONAL INTERESTS; ADDITIONAL MEMBERS....................................9
3.5 CERTIFICATION OF UNITS.................................................................10


ARTICLE IV - CAPITAL ACCOUNTS.......................................................................11
4.1 ESTABLISHMENT AND DETERMINATION OF CAPITAL ACCOUNTS....................................11
4.2 COMPUTATION OF AMOUNTS.................................................................11
4.3 NEGATIVE CAPITAL ACCOUNTS..............................................................12
4.4 COMPANY CAPITAL........................................................................12


ARTICLE V - DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES.......................................12
5.2 DISTRIBUTIONS..........................................................................12
5.3 ALLOCATION OF PROFITS AND LOSSES.......................................................12
5.4 REGULATORY AND SPECIAL ALLOCATIONS.....................................................13
5.5 TAX DISTRIBUTIONS......................................................................14
5.6 TAX ALLOCATIONS: CODE SECTION 704(C)...................................................15


ARTICLE VI - MANAGEMENT.............................................................................17
6.1 THE MANAGING MEMBER; DELEGATION OF AUTHORITY AND DUTIES................................17
6.2 OFFICERS...............................................................................18


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ARTICLE VII - EXCULPATION AND INDEMNIFICATION........................................................19
7.1 PERFORMANCE OF DUTIES; NO LIABILITY OF MEMBER AND OFFICERS.............................19
7.2 COMPETING ACTIVITIES...................................................................20
7.3 TRANSACTIONS BETWEEN THE COMPANY AND THE MEMBERS.......................................20
7.4 Indemnification........................................................................21
7.5 Power to Indemnify in Actions, Suits or Proceedings
Other Than Those by or in the Right of the Company.....................................21
7.6 Power to Indemnify in Actions, Suits or Proceedings by
or in the Right of the Company.........................................................21
7.7 Authorization of Indemnification.......................................................22
7.8 Good Faith Defined.....................................................................22
7.9 Indemnification by a Court.............................................................22
7.10 Advancement or Reimbursement of Expenses...............................................23
7.11 Nonexclusivity and Survival of Indemnification.........................................23
7.12 Insurance..............................................................................23
7.13 SAVINGS CLAUSE.........................................................................23


ARTICLE VIII - TAXES..................................................................................24
8.1 TAX RETURNS............................................................................24
8.2 TAX MATTERS PARTNER....................................................................24


ARTICLE IX - BOOKS, REPORTS AND COMPANY FUNDS.......................................................24
9.1 MAINTENANCE OF BOOKS...................................................................24
9.2 MEMBER TAX INFORMATION.................................................................24


ARTICLE X - TRANSFERS AND OTHER EVENTS.............................................................25
10.1 ASSIGNMENT BY MEMBERS..................................................................25
10.2 VOID ASSIGNMENT........................................................................25
10.3 SUBSTITUTED MEMBER.....................................................................25
10.4 EFFECT OF ASSIGNMENT...................................................................26
10.5 LEGEND.................................................................................26
10.6 TRANSFER FEES AND EXPENSES.............................................................26
10.7 OTHER LIMITATIONS......................................................................26
10.8 EFFECTIVE DATE.........................................................................26
10.9 EFFECT OF INCAPACITY...................................................................26


ARTICLE XI - DISSOLUTION, LIQUIDATION AND TERMINATION...............................................27
11.1 DISSOLUTION............................................................................27
11.2 LIQUIDATION AND TERMINATION............................................................27
11.3 CANCELLATION OF CERTIFICATE............................................................28


ARTICLE XII - GENERAL/MISCELLANEOUS PROVISIONS.......................................................28
12.1 OFFSET.................................................................................28
12.2 NOTICES................................................................................28
12.3 ENTIRE AGREEMENT.......................................................................28


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12.4 EFFECT OF WAIVER OR CONSENT............................................................28
12.5 AMENDMENT OR MODIFICATION..............................................................29
12.6 BINDING EFFECT.........................................................................29
12.7 GOVERNING LAW..........................................................................29
12.8 FURTHER ASSURANCES.....................................................................29
12.9 WAIVER OF CERTAIN RIGHTS...............................................................29
12.10 NOTICE TO MEMBERS OF PROVISIONS........................................................30
12.11 COUNTERPARTS...........................................................................30
12.12 CONSENT TO JURISDICTION................................................................30
12.13 HEADINGS...............................................................................30
12.14 REMEDIES...............................................................................30
12.15 SEVERABILITY...........................................................................30


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LIMITED LIABILITY COMPANY AGREEMENT


of


AAVID THERMALLOY SW, LLC
A Delaware Limited Liability Company


THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Aavid Thermalloy SW, LLC (the "Company") is entered into as of the 2nd day of February, 2000 by and among Aavid Thermalloy, LLC, a Delaware limited liability company (the "Member") and the Company.


WHEREAS, pursuant to the Certificate of Formation (the "Certificate"), the Company was formed and pursuant to a contribution by Thermalloy, Inc., a Nevada corporation, of certain of its assets to the Company, the Company issued to Thermalloy, Inc. all of the Common Units (as defined below) of the Company and Thermalloy, Inc. then contributed all of the Company's Common Units to Aavid Thermalloy, LLC in exchange for Common Units and Preferred Units of Aavid Thermalloy, LLC; and


WHEREAS, the parties hereto desire to enter into this Limited Liability Company Agreement to provide for, among other things, the respective rights, obligations and interests of the parties hereto to each other and certain other matters.


NOW THEREFORE, in consideration of the mutual covenants and agreements herein made and intending to be legally bound, the Members hereby agree as follows:


ARTICLE I - DEFINITIONS


1.1 DEFINITIONS. As used in this Agreement, the following terms have the following meanings:


"Act" means the Delaware Limited Liability Company Act, Title 6, Sections18-101, et seq., and any successor statute, as amended from time to time.


"Additional Interests" has the meaning given that term in Section 3.4.


"Affiliate" of, or a Person "Affiliated" with, a specified Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.


"Agreement" means this Limited Liability Company Agreement, as executed and as it may be amended, modified, supplemented or restated from time to time, as the context requires.


"Book Value" means, with respect to any Company property, the Company's adjusted basis for federal income tax purposes, adjusted from time to time to reflect the adjustments required or permitted by Treasury Regulation Section 1.704-1(b)(2)(iv)(d)--(g); provided that the Book Value of each asset of the Company shall be adjusted as of the date hereof pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) in a manner determined by the Managing Member such that the aggregate Book Value of the Company's assets (net of the Company's liabilities) as of such date is equal to the aggregate initial Capital Account balances of the members (immediately after the Members' actual or deemed Capital Contributions pursuant to Section 3.3).


"Capital Account" has the meaning given that term in Section 4.1.


"Capital Contribution" means the aggregate contributions made by a Member to the Company pursuant to Article III as of the date in question, as shown opposite such Member's name on Schedule A, as the same may be amended from time to time.


"Certificate" has the meaning given that term in the Preamble.


"Certificated Interests" has the meaning given that term in Section 10.5.


"Common Unit" means a Unit representing a fractional part of the Membership Interests of the Members and having the rights and obligations specified with respect to Common Units in this Agreement.


"Code" means the Internal Revenue Code of 1986 and any successor statute, as amended from time to time.


"Company" means Aavid Thermalloy SW, LLC, from and after its formation as a Delaware limited liability company pursuant to the Certificate.


"Company Minimum Gain" has the meaning set forth for "Partnership minimum gain" in Treasury Regulation Section 1.704-2(d).


"Economic Interest" means a Member's or Economic Owner's share of the Company's net profits, net losses and distributions pursuant to this Agreement and the Act, but shall not include any right to participate in the management or affairs of the Company, including the right to vote on, consent to or otherwise participate in any decision of the Members, or any right to receive information concerning the business and affairs of the Company, in each case to the extent provided for herein or otherwise required by the Act.


"Economic Owner" means any owner of an Economic Interest who is not a Member. No owner of an Economic Interest which is not a Member shall be deemed a "member" (as that term is used in the Act) of the Company.


"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time.


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"Fiscal Period" of the Company means the Fiscal Year or any portion thereof for which determinations are being made pursuant to this Agreement.


"Fiscal Quarter" of the Company means each calendar quarter ending March 31, June 30, September 30 and December 31.


"Fiscal Year" of the Company means the calendar year.


"Incapacity" or "Incapacitated" means (a) with respect to a natural person, the bankruptcy, death, incompetency or insanity of such individual and (b) with respect to any other Person, the bankruptcy, liquidation, dissolution or termination of such Person.


"Losses" means items of Company loss and deduction determined according to Section 4.2.


"Managing Member" has the meaning given to that term in Section 6.1.


"Member" means the initial Members and each Person who is hereafter admitted as a Member in accordance with the terms of this Agreement and the Act. The Members shall constitute the "members" (as that term is defined in the Act) of the Company.


"Member Minimum Gain" has the meaning set forth for "partner nonrecourse debt minimum gain" in Treasury Regulation Section 1.704-2(i).


"Member Nonrecourse Deductions" has the meaning set forth for "partner nonrecourse deductions" in Treasury Regulation Section 1.704-2(i).


"Membership Interest" means a Member's interest in the Company, including such Member's Economic Interest and the right, if any, to participate in the management of the business and affairs of the Company, including the right, if any, to vote on, consent to or otherwise participate in any decision or action of or by the Members and the right to receive information concerning the business and affairs of the Company, in each case to the extent expressly provided in this Agreement or otherwise required by the Act.


"Net Losses" means for any Fiscal Period the excess, if any, of Losses over Profits for such period, disregarding Losses and Profits specially allocated pursuant to Section 5.4.


"Net Profits" means for any Fiscal Period the excess, if any, of Profits over Losses for such period, disregarding Profits and Losses specially allocated pursuant to Section 5.4.


"Officer" means each Person designated as an officer of the Company pursuant to Section 6.2 for so long as such Person remains an officer pursuant to the provisions of Section 6.2.


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"Person" means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity.


"Profits" means items of Company income and gain determined according to Section 4.2.


"Securities Act" means the Securities Act of 1933, as amended from time to time.


"Tax Matters Member" has the meaning given to that term in Section 8.2.


"Taxable Year" means the Company's taxable year ending December 31 (or part thereof, in the case of the Company's last taxable year), or such other year as is (i) required by Section 706 of the Code or (ii) determined by the Managing Member.


"Transfer" has the meaning given that term in Section 10.1.


"Unit" means a Membership Interest of a Member in the Company representing a fractional part of the Membership Interests of all Members and shall include the Common Units; provided that any class of Units issued shall have designations, preferences or special rights set forth in this Agreement and the Membership Interest represented by such class of Units shall be determined in accordance with such designations, preferences or special rights.


Other terms defined in this Agreement have the meanings so given them.


1.2 CONSTRUCTION. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine and neuter and the singular number includes the plural number and vice versa. All references to Articles and Sections refer to articles and sections of this Agreement, and all references to Schedules are to Schedules attached hereto, each of which is made a part hereof for all purposes.


1.3 INCLUDING. Reference in this Agreement to "including," "includes" and "include" shall be deemed to be followed by "without limitation."


ARTICLE II - ORGANIZATION


2.1 MERGER AND RIGHTS OF MEMBERS. Pursuant to a contribution by Thermalloy, Inc., a Nevada corporation, of certain of its assets to the Company, the Company issued to Thermalloy, Inc all of the Common Units of the Company. Thermalloy, Inc. then contributed all of the Common Units of the Company to Aavid Thermalloy, LLC in exchange for Common Units and Preferred Units of Aavid Thermalloy, LLC. This Agreement is the Limited Liability Company Agreement of the Company.


The rights, powers, duties, obligations and liabilities of the Members shall be determined pursuant to the Act and this Agreement. If there is a conflict between the provisions of this


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Agreement and the Act, the provisions of this Agreement shall control, except if the conflict is with respect to a provision which would cause the Company not to be taxed for federal income tax purposes as a partnership or a provision of the Act that cannot be waived by agreement among the Members, in which case the provisions of the Act shall control. If there is a conflict between this Agreement and the Certificate, the provisions of the Certificate shall control.


2.2 NAME. The name of the Company is "Aavid Thermalloy SW, LLC" and all Company business shall be conducted in that name or in such other names that comply with applicable law as the Managing Member may select from time to time.


2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER OFFICES. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Managing Member may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Managing Member may designate from time to time in the manner provided by law. The principal office of the Company shall be at such place as the Managing Member may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records there. The Company may have such other offices as the Managing Member may designate from time to time.


2.4 PURPOSES. The nature of the business or purposes to be conducted or promoted by the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. The Company may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing. Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability company organized under the laws of the State of Delaware.


2.5 POWERS OF THE COMPANY.


(a) POWER AND AUTHORITY. Subject to the provisions of this
Agreement, the Company shall have the power and authority to take any
and all actions necessary, appropriate, proper, advisable, convenient
or incidental to or for the furtherance of the purposes set forth in
Section 2.4, including the power:


(i) to conduct its business, carry on its operations
and have and exercise the powers granted to a limited
liability company by the 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;


(ii) to acquire by purchase, lease, contribution of
property or otherwise, own, hold, operate, maintain, finance,
refinance, improve,


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lease, sell, convey, mortgage, transfer, demolish or dispose
of any real or personal property that may be necessary,
convenient or incidental to the accomplishment of the purpose
of the Company;


(iii) to enter into, perform and carry out contracts
of any kind, including contracts with any Member or any
Affiliate thereof, or any agent of the Company necessary to,
in connection with, convenient to or incidental to the
accomplishment of the purpose of the Company;


(iv) 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 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 the power to be admitted as a member or
appointed as a manager thereof and to exercise the rights and
perform the duties created thereby) 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;


(v) to lend money for any 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;


(vi) to sue and be sued, complain and defend, and
participate in administrative or other proceedings, in its
name;


(vii) to appoint employees and agents of the Company
and define their duties and fix their compensation;


(viii) to indemnify any Person in accordance with the
Act and to obtain any and all types of insurance;


(ix) to cease its activities and cancel its
Certificate;


(x) 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;


(xi) to borrow money and issue evidences of
indebtedness and guarantee indebtedness (whether of the
Company or any of its subsidiaries), and to secure the same by
a mortgage, pledge or other lien on the assets of the Company;


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(xii) 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


(xiii) 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.


(b) MANAGING MEMBER. Subject to the provisions of this
Agreement, (i) the Company, and the Managing Member on behalf of the
Company, may enter into and perform any and all documents, agreements
and instruments contemplated hereby, all without any further act, vote
or approval of any Member and (ii) the Managing Member may authorize
any Person (including any Member or Officer) to enter into and perform
any document on behalf of the Company.


(c) MERGER. Subject to the provisions of this Agreement and
the Merger Agreement, the Company may, with approval of the Managing
Member and without the need for any further act, vote or approval of
any Member, merge with, or consolidate into, another limited liability
company (organized under the laws of Delaware or any other state), a
corporation (organized under the laws of Delaware or any other state)
or other business entity (as defined in Section 18-209(a) of the Act),
regardless of whether the Co ...