THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GARDNER DENVER NASH LLC a Delaware limited liability company
Exhibit 3.18
XXXXXXX DENVER XXXX INDUSTRIES LLC
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXXXX DENVER XXXX LLC
a Delaware limited liability company
This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF XXXXXXX DENVER XXXX LLC (this “Agreement”), dated as of May 12, 2005, is adopted, executed, and agreed to by the sole Member (as defined below). This Agreement amends and restates in its entirety the Second Amended and Restated Limited Liability Company Agreement of nash_elmo Industries, L.L.C. (the “Company”) dated as of September 17, 2004 (the “Old Operating Agreement”).
WHEREAS, Xxxx Industries, Inc. converted to a limited liability company under the name “nash_elmo Industries, L.L.C.” in accordance with the Delaware Limited Liability Company Act (as amended from time to time, the “Act”) upon the filing of a Certificate of Conversion and a Certificate of Formation with the Secretary of State of the State of Delaware on July 26, 2001;
WHEREAS, the name of the Company was changed to “Xxxxxxx Denver Xxxx LLC” as of April 1, 2005;
WHEREAS, as of the date hereof, the Company merged with Xxxxxxx Denver Xxxx Holdings LLC, a Delaware limited liability company and formerly the sole member of the Company, with the Company being the surviving entity;
WHEREAS, the sole Member desires to enter into this Third Amended and Restated Limited Liability Company Agreement to govern the operations and affairs of the Company and its relationship with the Member and to amend and restate in its entirety the Old Operating Agreement.
NOW, THEREFORE, the sole Member hereby agrees as follows:
1. Formation & Name. The Company was organized as a limited liability company pursuant to the Act by the filing of a Certificate of Formation with the Secretary of State on July 26, 2001 under the original name of “Xxxx Industries, L.L.C.” The name of the Company is “Xxxxxxx Denver Xxxx LLC” The Company may do business under that name and under any other name or names that the Member selects subject to Section 18-102 of the Act.
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2. |
Term. The Company shall have a perpetual existence. |
3. Purposes. The purposes of the Company are to carry on any lawful business, purpose, or activity for which limited liability companies may be formed under the Act.
4. Sole Member. Xxxxxxx Denver, Inc., a Delaware corporation, is the sole member of the Company (the “Member”).
5. Member Limited Liability. No Member shall be personally liable for any debts, obligations or liabilities of the Company beyond its contributions.
6. Contributions. The Company shall have a fixed capital of EURO 50,000, with the Member making a corresponding cash capital contribution. The Member will not be required to make any additional capital contributions.
7. Management. The business and affairs of the Company shall be managed by one or more “Managers,” as that term is used in the Act, who shall be designated by the Member. No Member shall be allowed to be designated as a Manager of the Company. Decisions of the Managers within their scope of authority shall be binding upon the Company and the Member. Except where approval of the Member is expressly required by nonwaivable provisions of the Act, the Managers shall have full and complete authority, power and discretion (subject to specific directives of the Member given from time to time) to manage and control the business, affairs and properties of the Company, to make all decisions regarding the business, affairs and properties of the Company and to perform any and all other acts and activities customary or incident to the management of the Company’s business. The initial Managers of the Company shall be Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx.
8. Officers. The officers of the Company (the “Officers”) shall consist of such offices, with such duties and powers, as the Member may determine. An Officer shall remain in office unless and until removed by the Member (with or without cause) or his or her resignation, death or incapacity. Designation as an Officer shall not, of itself, create any contractual or employment rights.
9. Membership Interests. The Member holds 100% of the outstanding Membership Interests of the Company. Membership Interests issued pursuant hereto from time to time may be represented by a certificate of Membership Interests issued by the Company. The transfer of Membership Interests, or any portion thereof, shall not require the consent of any Member or of the Managers. The transferee will become a Member and exercise all rights and powers of a Member.
10. Distributions. To the extent permitted by the Act, the Members shall determine annually whether to make distributions by issuing a resolution. Distributions may only be made out of the profits, retained earnings and or the total assets in excess of the Company’s fixed capital. Distributions may not be made from the Company’s fixed capital. Each Member shall participate in the amount to be distributed in proportion to their outstanding Membership Interests.
11. Dissolution. The Company will be dissolved only upon the occurrence of any of the following events: (i) by written decision of the Member(s); or (ii) upon the entry of a decree of judicial dissolution under Section 18-802 of the Act.
12. Entire Agreement. This Agreement supersedes all prior agreements (including the Old Operating Agreement), understandings, negotiations and discussions, whether written or oral, of the Members, and shall be modified or amended as provided herein.
13. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of the Company, has caused this Agreement to be duly executed as of the date first written above.
XXXXXXX DENVER, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
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Title: |
Vice President, Administration, | |
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General Counsel and Secretary |
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CERTIFICATE OF AMENDMENT
OF
Xxxx Industries, L.L.C.
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1. |
The name of the limited liability company is Xxxx Industries, L.L.C. |
2. The Certificate of Formation of the limited liability company is hereby amended to change the name of the limited liability company to affect the foregoing. Article One of the Certificate of Formation is hereby amended to read as follows:
“FIRST. The name of the limited liability company formed hereby is nash_elmo Industries, L.L.C.”
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of Xxxx Industries, L.L.C. this 29th day of May, 2002.
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Authorized Person
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
NASH_ELMO INDUSTRIES, L.L.C.
a Delaware limited liability company
This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF NASH_ELMO INDUSTRIES, L.L.C. (this “Agreement”), dated as of September 17, 2004, is adopted, executed, and agreed to by the sole Member (as defined below). This Agreement amends and restates in its entirety the Amended and Restated Limited Liability Company Agreement of nash_elmo Industries, L.L.C. (the “Company”) dated as of May 7, 2002 (the “Old Operating Agreement”).
WHEREAS, Xxxx Industries, Inc. converted to a limited liability company in accordance with the Delaware Limited Liability Company Act (as amended from time to time, the “Act”) upon the filing of a Certificate of Conversion and a Certificate of Formation with the Secretary of State of the State of Delaware on July 26, 2001; and
WHEREAS, the sole Member desires to enter into this Second Amended and Restated Limited Liability Company Agreement to govern the operations and affairs of the Company and its relationship with the Member and to amend and restate in its entirety the Old Operating Agreement.
NOW, THEREFORE, the sole Member hereby agrees as follows:
1. Formation; Name. The Company was organized as a limited liability company pursuant to the Act by the filing of a Certificate of Formation with the Secretary of State on July 26, 2001 under the original name of “xxxx Industries, L.L.C.” The name of the Company is “nash_elmo Industries, L.L.C.” The Company may do business under that name and under any other name or names that the Managers select subject to Section 18-102 of the Act.
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2. |
Term. The Company shall have a perpetual existence. |
3. Purposes. The purposes of the Company are to carry on any lawful business, purpose, or activity for which limited liability companies may be formed under the Act.
4. Sole Member. nash_elmo Holdings LLC shall be the sole member of the Company (the “Member”).
5. Contributions. Without creating any rights in favor of any third party, the Member may, from time to time, make contributions of cash or property to the capital of the Company, but shall have no obligation to do so.
6. Membership Interests. The Member holds 100% of the outstanding Membership Interests of the Company. Membership Interests issued pursuant hereto from time to time may be represented by a certificate of Membership Interests issued by the Company.
7. Distributions. The Member shall be entitled (a) to receive all distributions (including, without limitation, liquidating distributions) made by the Company and (b) to enjoy all other rights, benefits, and interests in the Company.
8. Management. The business and affairs of the Company shall be managed by one or more “Managers,” as that term is used in the Act, who shall be designated by the Member. Decisions of the Managers within their scope of authority shall be binding upon the Company and the Member. Except where approval of the Member is expressly required by nonwaivable provisions of the Act, the Managers shall have full and complete authority, power and discretion (subject to specific directives of the Member given from time to time) to manage and control the business, affairs and properties of the Company, to make all decisions regarding the business, affairs and properties of the Company and to perform any and all other acts and activities customary or incident to the management of the Company’s business. The initial Managers of the Company shall be Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx.
9. Officers. The officers of the Company (the “Officers”) shall consist of such offices, with such duties and powers, as the Managers may determine. An Officer shall remain in office unless and until removed by the Managers (with or without cause) or his or her resignation, death or incapacity. Designation as an Officer shall not, of itself, create any contractual or employment rights.
10. Dissolution. The Company shall dissolve and its affairs shall be wound up at such time, if any, as the Member may elect. No other event (including, without limitation, an event described in Section 18-801 of the Act) will cause the Company to dissolve.
11. Entire Agreement. This Agreement supersedes all prior agreements (including the Old Operating Agreement), understandings, negotiations and discussions, whether written or oral, of the Members, and shall be modified or amended as provided herein.
12. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of the Company, has caused this Agreement to be duly executed as of the date first written above.
NASH_ELMO HOLDINGS LLC
/s/ Xxxxx X. Xxxxxxxx
By: Xxxxx X. Xxxxxxxx
Title: Director, Vice President and Secretary
