Exhibit 3.28
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXXXX INTERNATIONAL, L.L.C.
This Limited Liability Company Agreement (this "Agreement") of Xxxxxxx
International, L.L.C. is entered into by Xxxxxxx International, Inc., as the
sole member (the "Member")
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. ss.18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. Name. The name of the limited liability company formed hereby is
Xxxxxxx International, L.L.C. (the "Company").
2. Filing of Certificates. The Member, as an authorized person, within the
meaning of the Act, shall execute, deliver and file, or cause the execution,
delivery and filing of, all certificates required or permitted by the Act to be
filed in the Office of the Secretary of State of the State of Delaware and any
other certificates, notices or documents required or permitted by law for the
Company to qualify to do business in any jurisdiction in which the Company may
wish to conduct business.
3. Purposes. The purpose of the Company is to engage in any lawful act or
activity for which limited liability companies may be formed under the Act.
4. Powers. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have and may exercise all the
powers now or hereafter conferred by Delaware law on limited liability
companies formed under the Act. The Company shall have the power to do any and
all acts necessary, appropriate, proper, advisable, incidental or convenient to
or for the protection and benefit of the Company, and shall have, without
limitation, any and all of the powers that may be exercised on behalf of the
Company by the Member.
5. Principal Business Office. The principal business office of the Company
shall be located at such location as may hereafter be determined by the Member.
6. Registered Office; Registered Agent. The address of the registered
office and the name and address of the registered agent of the Company in the
State of Delaware is c/o The Corporation Service Company, 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.
7. Member. The name and the mailing address of the Member are as follows:
Name Address
---- -------
---------------------------------- ------------------------------------
Xxxxxxx International, Inc. 000 Xxxxxxxxx Xxxxx, Xxxxx #00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
8. Limited Liability. Except as required 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.
9. Capital Contributions. The Member is deemed admitted as the member of
the Company upon its execution and delivery of this Agreement. The Member has
contributed $100.00 in cash and no other property to the Company. The Member
may, but is not obligated to make any additional capital contribution to the
Company.
10. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated solely to the Member.
11. Distributions. Subject to the limitations of Section 18-607 of the Act
and any other applicable law, distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member.
12. Management. In accordance with Section 18-402 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
laws of the State of Delaware. The Member has the authority to bind the
Company.
13. Officers. The Member may, from time to time as it deems advisable,
select natural persons who are employees or agents of the Company and designate
them as officers of the Company (the "Officers") and assign 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 Delaware General
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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 14 may be revoked at any
time by the Member. An Officer may be removed with or without cause by the
Member.
14. Other Business. The Member may engage in or possess an interest in
other business ventures 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.
15. Exculpation and Indemnification. (a) To the fullest extent permitted
by the laws of the State of Delaware and except in the case of bad faith, gross
negligence or willful misconduct, no Member or Officer shall be liable to the
Company or any other Member for any loss, 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.
(b) Except in the case of bad faith, gross negligence or willful
misconduct, each person (and the heirs, executors or administrators of such
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 or investigative, by reason of the fact
that such person is or was a Member or Officer, shall be indemnified and held
harmless by the Company to the fullest extent permitted by the laws of the
State of Delaware for directors and officers of corporations organized under
the laws of the State of Delaware. Any indemnity under this Section 15 shall be
provided out of and to the extent of Company assets only, and no Member shall
have personal liability on account thereof.
16. Assignments. The Member may at any time assign in whole or in part its
limited liability company interest in the Company. If the Member transfers all
of its interest in the Company pursuant to this Section 16, 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.
17. Resignation. The Member may at any time resign from the Company. If
the Member resigns pursuant to this Section 17, an additional Member shall be
admitted to the Company, subject to Section 18 hereof, upon its
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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.
18. Admission of Additional Members. One or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
19. 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
or (ii) the entry of a decree of judicial dissolution under Section 18-802
of the Act.
(b) 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 orderly manner), and the assets or
proceeds from the sale of the assets of the Company shall be applied in
the manner, and in the order of priority, set forth in Section 18-804 of
the Act.
20. Separability of Provisions. If any provision of this Agreement or the
application thereof is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable to any extent, the remainder of
this Agreement and the application of such provisions shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
21. Entire Agreement. This Agreement constitutes the entire agreement of
the Member with respect to the subject matter hereof.
22. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles).
23. Amendments. This Agreement may not be modified, altered, supplemented
or amended except pursuant to a written agreement executed and delivered by the
Member.
24. Sole Benefit of Member. The provisions of this Agreement (including
Section 10) are intended solely to benefit the Member and, to the fullest
extent permitted by applicable law, shall not be construed as conferring any
benefit upon any creditor of the Company (and no such creditor shall be a
third-
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party beneficiary of this Agreement), and the Member shall have no duty or
obligation to any creditor of the Company to make any contributions or payments
to the Company.
25. Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be deemed an original This
Agreement shall become effective when each party shall have received a
counterpart hereof signed by each of the other parties.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Agreement as of the 21st day of November, 2001.
XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Treasurer,
General Counsel & Secretary
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