LIMITED LIABILITY COMPANY AGREEMENT OF SARA LEE DIRECT, LLC
EXHIBIT
3.19
The undersigned are executing this Limited Liability Company Operating Agreement (the
“Agreement”) as of December 17, 2003, for the purpose of forming a limited liability company (the
“Company”) pursuant to the provisions of the Colorado Limited Liability Company Act, Article 7
Section 80-101 et seq. (the “Colorado Act”), and do hereby agree as follows:
1. Name; Formation. The name of the Company shall be Xxxx Xxx Direct, LLC, or such
other name as the Board of Managers may from time to time hereafter designate. The Company has
been formed upon the execution and filing by any Member, Manager or officer of the Company (each
such person or entity being hereby authorized to take such action) of a Articles of Organization
of the Company with the Secretary of State of the State of Colorado setting forth the information
required by Section 80-204 of the Colorado Act.
2. Definitions. In addition to the terms otherwise defined herein, the following
terms have the meanings set forth below:
“Board of Managers” means the board of managers designated
pursuant to Section 7(d) hereof.
“Event of Withdrawal” means the death, retirement, resignation,
expulsion, bankruptcy or dissolution of a Member or the occurrence of any
other event that terminates the continued membership of a Member in the
Company or any other event causing dissolution of the Company under Section
80-801 of the Colorado Act.
“Initial Member” means Xxxx Xxx Corporation, a Maryland
corporation.
“Manager” means an individual appointed to the Board of Managers
pursuant to Section 7 hereof.
“Members” means the Initial Members and all other persons or
entities admitted as additional or substituted members pursuant to this
Agreement, so long as they remain Members. Reference to a “Member” means any
one of the Members.
“Majority in Interest” means Members holding in the aggregate
greater than fifty percent of the outstanding Units.
“Unit” means, as to each Member, the limited liability company
interest held by such Member corresponding to such Member’s capital
contribution, and in the case of each Initial Member, the limited liability
company interest set forth in Section 9 hereof.
3. Purpose. The purpose of the Company shall be to engage in any lawful business that
may be engaged in by a limited liability company organized under the Colorado Act, as such
business activities may be determined by the Board of Managers from time to time.
4. Offices.
(a) The principal office of the Company, and such additional offices as the Board of Managers
may determine to establish, shall be located at such place or places inside or outside the State
of Colorado as the Board of Managers may designate from time to time. The address of the
principal office of the Company initially shall be 000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxx-Xxxxx, Xxxxx
Xxxxxxxx 00000.
(b) The registered office of the Company in the State of Colorado is located at 0000
Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000. The registered agent of the Company for service of process is
Corporation Service Company.
5. Members. The name and business or residence address of each Member of the Company
are as set forth on Schedule 1 attached hereto, as the same may be amended from time to
time.
6. Term. The Company shall continue until dissolved and terminated in accordance with
Section 15 of this Agreement.
7. Management of the Company.
(a) The Board of Managers shall have the sole right to manage the business of the Company and
shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out
the purposes and business of the Company, and, except with respect to the execution and filing of
the Company’s Articles of Organization, no Member shall have any authority to act for or bind the
Company but shall have only the right to vote on or approve the actions herein specified to be
voted on or approved by the Members.
(b) The Board of Managers may appoint such officers, who may but need not be Members or
Managers, with such titles, to such terms, and to perform such functions as the Board of Managers
shall determine in its sole discretion. The Board of Managers may appoint, employ or otherwise
contract with such other persons or entities for the transaction of the business of the Company or
the performance of services for or on behalf of the Company as it shall determine in its sole
discretion. The Board of Managers may delegate to any such officer, person or entity such
authority to act on behalf of the Company as the Board of Managers may from time to time deem
appropriate in its sole discretion.
(c) When the taking of such action has been authorized by the Board of Managers, any Manager
or officer of the Company or any other person specifically authorized by the Board of Managers,
may execute any contract or other agreement or document on behalf of the Company and may execute
and file on behalf of the Company with the Secretary of State of the State of Colorado any
certificates or amendment to the Company’s Articles of
2
Organization, one or more Restated Articles of Organization and Articles of Merger or
Consolidation and, upon the dissolution and completion of winding up of the Company, at any time
when there are fewer than two Members, or as otherwise provided in the Colorado Act, Articles of
Dissolution canceling the Company’s Articles of Organization.
(d) A Majority in Interest of the Members shall elect individuals to the Board of Managers,
which shall consist of such number of Managers as the Members shall determine in writing from time
to time. Initially, the Board of Managers shall consist of two Managers. Each Member shall have
one vote for each Unit it holds. Mangers shall serve until they resign, die, become incapacitated
or are removed. The removal of a Manager from the Board of Managers (with or without cause) shall
only be at the written request of Members holding a Majority in Interest. A majority of the
Managers (or the sole Manager, if there is only one Manager) shall constitute a quorum for the
transaction of business. At any meeting of the Board of Managers at which a quorum is present,
all matters shall be determined by the consent of a majority of the Managers. Notice shall be
given at least twelve (12) hours prior to any meeting of the Board of Managers. Notice may be
waived before or after a meeting or by attendance without protest at such meeting. Notice may be
by hand, telephone, telecopy, overnight courier or the U.S. mail and shall be deemed given when
received. Managers may participate in a meeting of the Board of Managers by means of telephone
and such participation shall constitute presence in person at such meeting. Any action required
or permitted to be taken by the Board of Managers at a meeting may be taken without a meeting with
the unanimous consent of the Board of Managers. The Board of Managers may adopt such other
procedures governing meetings and the conduct of business as well as meetings of Members and any
procedures to be used in connection with voting by Members (which voting may be by written consent
of Members owning the percentage of units necessary to take such action) as it shall deem
appropriate.
8. Member Rights: Meetings.
(a) No Member shall have the right to approve or vote on any matter except as expressly set
forth in this Agreement or as otherwise required by applicable law. Notwithstanding the
foregoing, the Members shall vote on all of the following: (i) the dissolution of the Company
pursuant to Section 15(b) of this Agreement; (ii) the merger of the Company; (iii) any transaction
involving an actual or potential conflict of interest between any Manager and the Company; (iv) an
amendment to the Articles of Organization of the Company; or (v) the sale, exchange, lease or
other transfer of all or substantially all of the Company’s assets, determined on a consolidated
basis, other than in the ordinary course of business (whether by merger, recapitalization,
consolidation, reorganization, combination or otherwise).
(b) Unless a greater vote is required by the Colorado Act or the Articles of Organization of
the Company, the affirmative vote of a Majority in Interest of the Members entitled to vote shall
be required to approve any proposed action.
(c) Meetings of the Members for the transaction of such business as may properly come before
such Members shall be held at such place, on such date and at such time as the Managers shall
determine. Special meetings of the Members for any proper purpose or
3
purposes may be called at any time by the Managers or the holders of at least twenty-five
percent (25%) of the outstanding Units held by all Members. The Company shall deliver written
notice stating the date, time, place and purposes of any meeting to each Member entitled to vote
at the meeting. Such notice shall be given not less than ten (10) and no more than sixty (60) days
before the date of the meeting.
(d) Any action required or permitted to be taken at an annual or special meeting of the
Members may be taken without a meeting, without prior notice, and without a vote, provided that
written consents, setting forth all proposed actions to be taken at such meeting, are signed by
the Members holding at least the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all outstanding Units entitled to vote on such action were
present and voted. Every written consent shall bear the date and signature of each Member who
signs such consent. Prompt notice of the taking of action without a meeting by less than
unanimous written consent shall be given to all Members who have not consented in writing to such
action.
9. Capital Contribution. In accordance with Section 80-701 of the Colorado Act, the
Initial Member has received an initial interest in the Company of one Unit (which has been
reflected on Schedule 1) in exchange for the cash contribution to the Company set forth on
Schedule 1. The initial Member may, but shall not be required to, make additional
contributions to the capital of the Company and, in such event, the Board of Managers shall amend
Schedule 1 hereof to reflect any capital contribution made by the Initial Member. Persons
or entities hereafter admitted as Members of the Company shall make such contributions of cash (or
promissory obligations), property or services to the Company as shall be determined by the Board
of Managers at the time of each such admission.
10. Assignments of Company Interest. No Member may sell, assign, pledge or otherwise
transfer or encumber any of its Units or any beneficial interest therein (“Transfer”) to
any other person without the prior written consent of Members holding a Majority in Interest. Any
purported Transfer in violation of the Section 10 shall be null and void and shall not be
recognized by the Company.
11. Withdrawal. No Member shall have the right to withdraw from the Company except
with the consent of the Board of Managers and upon such terms and conditions as may be
specifically agreed upon between the Board of Managers and the withdrawing Member. The provisions
of Section 13 with respect to distributions upon withdrawal are exclusive and no Member shall be
entitled to claim any further or different distribution upon withdrawal under Section 80-604 of
the Colorado Act or otherwise.
12. Additional Members. The Board of Managers shall have the sole right to admit
additional Members upon such terms and conditions, at such time or times, and for such capital
contributions as the Board of Managers shall in its sole discretion determine. In connection with
any such admission, the Board of Managers shall amend Schedule 1 hereof to reflect the
name, address, capital contribution and number of Units of the additional Member.
4
13. Distribution and Allocations.
(a) Distributions. Distributions of cash or other assets of the Company shall be
made at such times and in such amounts as the Board of Managers may determine. Unless the Board
of Managers determines otherwise, distributions shall be made to (and profits and losses shall be
allocated among) Members pro rata based on the number of Units held by each Member.
Members who withdraw from the Company shall be entitled to such a pro rata distribution
relating to any capital previously contributed and not withdrawn from the Company and the rights
to such distributions from the Company shall inure to the benefit of the withdrawing Members’
legal representative and assigns.
(b) Allocation of Profits or Losses. Except as may be required by the Internal
Revenue Code of 1986, as amended, each item of income, gain, profit, loss, deduction or credit to
the Company shall be allocated among its Members in proportion to the number of Units held by each
Member.
14. Return of Capital. No Member or Manager shall have any liability for the return
of any Member’s capital contribution, which capital contribution shall be payable solely from the
assets of the Company at the absolute discretion of the Board of Managers, subject to the
requirements of the Colorado Act.
15. Dissolution. Subject to the provisions of Section 16 of this Agreement, the
Company shall be dissolved and its affairs wound up and terminated upon the first to occur of the
following:
(a) The determination of all of the Members to dissolve the
Company or;
(b) The occurrence of an Event of Withdrawal.
16. Continuation of the Company. Notwithstanding the provisions hereof, the
occurrence of an Event of Withdrawal shall not dissolve the Company if within ninety (90) days
after the occurrence of such Event of Withdrawal, the business of the Company is continued by the
agreement of all remaining Members.
17. Limitation on Liability. 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 no Member or Manager of the Company shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of being a Member or
Manger. The failure of the Company to observe any formalities or requirements relating to the
exercise of its powers or management of its business or affairs under this Agreement or the
Colorado Act shall not be grounds for imposing personal liability on the Members or Managers for
liabilities of the Company.
18. Indemnification of Managers, Officers, Employees and Agents.
(a) Each person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil criminal,
5
administrative or investigative (hereinafter a “proceeding”) by reason of the fact that he or
she is or was a Manager or officer of the Company, or is or was serving at the request of the
Company as a Manager, director, officer, employee or agent of another limited liability company or
of a corporation, partnership, joint venture, trust or other enterprise, including a service with
respect to an employee benefit plan (hereinafter an ”indemnitee”), whether the basis of such a
proceeding is alleged action in an official capacity as a Manager, officer, employee or agent or
in any other capacity while serving as a Manager, officer, employee or agent, shall be indemnified
and held harmless by the Company to the fullest extent authorized by the Colorado Act (including
indemnification for negligence, gross negligence and breach of fiduciary duty to the extent so
authorized), as the Colorado Act exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide broader
indemnification rights than such law permitted the Company to provide prior to such amendment),
against all expense, liability and loss (including attorneys’ fees, judgments, fines, excise
taxes, or penalties and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith.
(b) The right to indemnification conferred in Section 18(a) shall include the right to be
paid by the Company the expenses (including attorneys’ fees) incurred in defending any proceeding
in advance of its final disposition. The rights of indemnification in clauses (a) and (b) of this
Section 18 shall be contract rights and such rights shall continue as to an indemnitee who has
ceased to be Manager, officer, employee or agent and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators.
(c) The rights to indemnification and to the advancement of expenses conferred in this
Section 18 shall not be exclusive of any other right that any person may have or hereafter acquire
under any statute, agreement, vote of the Managers or otherwise.
(d) The Company may maintain insurance, at its expense, to protect itself and any Manager,
officer, employee or agent of the Company or another limited liability company, corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against such expense,
liability or loss under the Colorado Act.
(e) The Company may, to the extent authorized from time to time by the Board of Managers,
grant rights to indemnification and to advancement of expenses to any employee or agent of the
Company to the fullest extent of the provisions of this Section 18 with respect to the
indemnification and advancement of expenses of Managers and officers of the Company.
19. Amendments. This Agreement may be amended only upon the written consent of all
Members.
20. Governing Law. This Agreement shall be governed by and construed in accordance
with the domestic law of the State of Colorado without giving effect to any choice of law or
conflict of law provision or rule (whether the State of Colorado or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Colorado.
6
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the date first
written above.
| Xxxx Xxx Corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Xxxxx X. Xxxxxxxx, Assistant Secretary | ||||
7
SCHEDULE 1
Initial
Member of Xxxx Xxx Direct, LLC
| Member Name/Address: | # Units: | Capital Contribution: | ||
Xxxx Xxx Corporation Three First Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 |
One (1) Unit | Xxxx Xxx Corporation (“SLC”) transferred, assigned and conveyed to Xxxx Xxx Direct, LLC, as a contribution to its capital, all of the assets and liabilities of or related to the business of Xxxx Xxx Direct, a division of SLC, including SLC’s 3% partnership interest in ProFillment, a Delaware general partnership, and all retail stores and administrative offices owned or operated by Xxxx Xxx Direct, a division of SLC, but excluding SLC’s membership interest in Net Apparel, L.L.C., a Delaware limited liability company (which interest will remain with SLC). |
Transfer of ownership in Hanesbrands Direct, LLC (f/k/a Xxxx Xxx Direct, LLC) — ownership as of 08/31/2006:
| Percentage of | ||||||||
| Units | Outstanding Units | |||||||
Hanesbrands Inc.
|
1 | 100 | % | |||||
0000 X. Xxxxx Xxxx Xxxx |
||||||||
Xxxxxxx-Xxxxx, XX 00000 |
||||||||
8
