EXHIBIT 3.28
LIMITED LIABILITY COMPANY AGREEMENT
OF
NEO XXXXXXX-GEN LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is
effective as of July 13, 2000, and execute and adopted by NEO Corporation, a
Minnesota corporation (the "Member"), as the limited liability company agreement
as to the affairs of a single member limited liability company known as NEO
Xxxxxxx-Gen LLC formed under and pursuant to the Delaware Limited Liability
Company Act (the "Act").
ARTICLE I
GENERAL PROVISIONS
1.01 FORMATION AND NAME. The parties to this Agreement agree to and
do hereby form a limited liability company under the name "NEO Xxxxxxx-Gen LLC"
(the "Company"), pursuant to the provisions of the Act and this Agreement. The
Members shall file a Certificate of Formation (the "Certificate") with the
Delaware Secretary of State.
1.02 PRINCIPAL OFFICE AND ADDITIONAL OFFICES. The principal place
of business of the Company shall be located at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000. The Manager may change the principal office and
place of business of the Company from time to time, provided that it shall
thereafter promptly send notice to the Member of the new principal office and
place of business of the Company. The Company may have such other additional
offices as the Manager, in its sole discretion, shall deem advisable.
1.03 INITIAL REGISTERED OFFICE AND REGISTERED AGENT. The Company
shall appoint a registered agent and establish a registered office in Delaware,
which shall be the same as the address of the registered agent, and which may be
changed by the Company from time to time.
1.04 PURPOSES. The Company may engage in any lawful business
purpose of activity as set forth in Title 6 of the Act, including but not
limited to, taking such actions as may be necessary or desirable to enable or
facilitate the borrowing of funds by the Member from a financial institution
(the "Borrowing"), the proceeds of which may be:
NEO Xxxxxxx-Gen LLC Page 2
Limited Liability Company Agreement
(a) distributed to, among others, certain of the Member's
limited liability companies;
(b) to perform the Company's obligations under all
contracts and other agreements entered into in connection with the Borrowing;
(c) to engage in all other activities permitted under the
terms of all contracts and other agreements entered into in connection with the
Borrowing; and
(d) to engage in any other activities related or
incidental thereto.
1.05 POWERS. The Company shall have and exercise all powers now or
hereafter conferred by the laws of the State of Delaware on limited liability
companies formed pursuant to the Act.
1.06 TERM. The term of the Company commenced upon the filing of the
Certificate and shall continue until terminated in accordance with other
specific provisions of this Agreement.
1.07 EXTENSION OF TERM. The term of this Company may be extended
beyond the term set forth in Section 1.06 upon the consent of the Member. If
such term is extended, the Company shall cause to be filed an amended
Certificate with the Delaware Secretary of State reflecting the change in the
termination date of the Company.
ARTICLE II
CAPITALIZATION, DISTRIBUTIONS
AND LIMITED LIABILITY OF THE MEMBER
2.01 CAPITAL CONTRIBUTIONS. The Member may make capital
contributions to the Company from time to time, as the Member shall determine in
its sole discretion.
2.02 FINANCING OF THE COMPANY THROUGH INDEBTEDNESS. The Company may
finance the operation of the business of the Company with a loan or loans, as
the Member shall determine in its sole discretion.
NEO Xxxxxxx-Gen LLC Page 3
Limited Liability Company Agreement
2.03 DISTRIBUTIONS. The Company shall make distributions of cash or
other property as the Member shall determine in its sole discretion. No
distribution shall be made unless, after giving effect to such distribution, the
fair value of the Company's assets are in excess of all liabilities of the
Company.
2.04 NO LIABILITY OF THE MEMBER. The Member shall have no
obligation to make contributions to the capital of the Company, nor shall the
Member be personally liable for any debts, obligations or liabilities of the
Company.
ARTICLE III
MANAGEMENT
3.01 MANAGEMENT BY MANAGER. The management and control of the
Company and its business and affairs shall rest exclusively in one or more
managers (a "Manager"), who shall be designated and appointed by the Member. The
Member hereby confers upon each of Xxxxx X. Xxxxx and Xxxxx X. Xxxxxx,
individually and jointly, the authority to act alone as a Manager of the
Company. A Manager may, but is not required to, be a Member, and shall serve as
Manager until the Manager's successor is chosen and qualified, or until the
Manager's earlier death, resignation or removal. A Manager may resign upon at
least 30 days' notice to the Member. The Member may remove the Manager without
notice or without cause.
3.02 NO MANAGEMENT BY THE MEMBER. The Member shall not take part in
or interfere in any manner with the management and control of the business of
the Company, and shall not have any right or authority to act for or bind the
Company.
3.03 SCOPE OF MANAGER'S AUTHORITY. A Manager shall have the full
power to execute, for and on behalf of the Company, any and all documents and
instruments which may be necessary or desirable to carry on the business of the
Company, including, without limitation, any and all deeds, contracts, leases,
mortgages, deeds of trust, promissory notes, security agreements and financing
statements pertaining to the Company's assets or obligations. No person dealing
with a Manager need inquire concerning the validity or propriety of a documents
or instrument executed in the name of the Company by a Manager, or as to the
authority of a Manager executing the same. The execution by a Manager of any
such document or instrument, and/or any negotiation activities undertaken by the
Manager relative to the execution by the Manager of any such document or
instrument, prior to the execution of this
NEO Xxxxxxx-Gen LLC Page 4
Limited Liability Company Agreement
Agreement, is expressly ratified and affirmed. A Manager's powers and duties
shall include, but not be limited to, the following:
(a) finance the Company's activities by selling,
pledging, assigning or borrowing against property and assets of the Company or
by borrowing money or guaranteeing secured or unsecured indebtedness and, in
connection therewith, to issue evidence of indebtedness;
(b) employ or retain any employees, consultants, agents,
brokers, professionals or other persons in any capacity for such compensation
and on such terms as the Manager deems necessary or desirable;
(c) make purchases on behalf of the Company;
(d) execute, deliver, make, modify or amend any documents
or instruments in the name of the Company;
(e) perform or cause to be performed all of the Company's
obligations under any agreement to which the Company is a party, including
without limitation, any of its obligations in respect of indebtedness and any
lien or security interests securing such indebtedness;
(f) adjust, compromise, settle or refer to arbitration
any claim by or against the Company or any of its assets, to make elections and
prepare and file returns regarding any federal, state or local tax obligations
of the Company, and to institute, prosecute and defend any legal action or
arbitration proceeding involving the Company;
(g) acquire and enter into contracts of insurance for the
protection of the Company and its assets, Member, management and associates;
(h) maintain and establish books and records of the
Company;
(i) establish bank accounts in the name of the Company;
(j) file annual reports with the Delaware Secretary of
State, and any other documents required by the Act; and
(k) perform any other necessary ministerial function of
the Company.
NEO Xxxxxxx-Gen LLC Page 5
Limited Liability Company Agreement
3.04 PERFORMANCE. A Manager shall devote such time to the business
and affairs of the Company as is reasonably necessary for the performance of the
Manager's, but shall not be required to devote full time to the performance of
such duties.
3.05 PROVISION OF SERVICES. A Manager shall provide or arrange for
the provision of all services required for the Company to carry on its business
and affairs and to perform properly the Manager's functions under this
Agreement. A Manager may hire and retain such persons, on behalf of and at the
expense of the Company, to perform services for the Company, including without
limitation, administrative, legal, accounting, auditing or other services in
connection with the operation of the Company. Such persons may include the
Member or an affiliate of a Member.
3.06 ACTION WITHOUT A MEETING. Any action required or permitted by
this Agreement to be taken by the Managers may be taken without a meeting,
without prior notice, and without a vote, by written consent of either Manager.
3.07 LIMITATION OF LIABILITY OF MANAGER. No Manager shall be
obligated personally for any debt, obligation or liability of the Company or the
Member solely by reason of being or acting as a Manager of the Company. No
Manager shall be personally liable to the Company or to the Member, to the
extent permitted by law, for monetary damages for breach of any fiduciary or
other duty which does not involve: (i) a breach of the duty of loyalty to the
Company or its Members; (ii) acts or omissions that involve willful misconduct
or gross negligence; or (iii) a transaction from which the Manager derived an
improper personal benefit.
3.08 INDEMNIFICATION. The Company shall indemnify a Manager made a
party to a proceeding or threatened to be made a named defendant or respondent
in a proceeding because such Manager acted on behalf of the Company, against
liability for a judgment, settlement, penalty, fine, including an excise tax
assessed with respect to an employee benefit plan, or reasonable expenses
incurred with respect to a proceeding, if the Manager conducted himself in good
faith and reasonable believed his conduct was not opposed to the best interests
of the Company; however, this section 3.08 shall not indemnify any Manager in
connection with (i) a proceeding by or on behalf of the Company in which the
Manager is adjudged liable to the Company; or (ii) in connection with a
proceeding charging improper personal benefit to the Manger, whether or not
involving action on behalf of the Company, in which
NEO Xxxxxxx-Gen LLC Page 6
Limited Liability Company Agreement
the Manager was adjudged liable on the basis that personal benefit was
improperly received by him.
3.09 COMPENSATION. A Manger shall not authority to fix the
compensation of a Manger for acting in his capacity or any other capacity.
ARTICLE IV
DISSOLUTION AND WINDING UP OF THE COMPANY
4.01 DISSOLUTION DETERMINATION. The Company shall be dissolved and
its affairs shall be wound up upon the determination of the Member to dissolve
the Company which determination shall be in the Member's sole discretion.
4.02 WINDING UP. The Company shall not terminate upon a
dissolution, but shall cease to engage in further business except to the extent
necessary to wind up its affairs, perform existing contracts, and preserve the
value of its assets. The Member (or Manager if so appointed) shall take full
account of the Company's assets and liabilities, and file all certificates and
notices Of dissolution as are required by law and wind up its affairs.
ARTICLE V
ACCOUNTING AND MISCELLANEOUS
5.01 ACCOUNTING METHODS. At all times during the term of the
Company, a Manager shall maintain, or cause to be maintained, accurate books and
records of account in which shall be entered all matters relating to the
Company, including all income, expenditures, assets and liabilities thereof.
Such books and records of account shall be maintained in accordance with
generally accepted accounting principles consistently applied from year to year.
5.02 DUTIES OF THE COMPANY. The Company shall:
(a) ensure that (i) the Company's funds and other assets
are identifiable and are not commingled with those of any other person or
entity, (ii) the Company maintains bank accounts, records and books of account
separate and apart from any other person or entity and (iii) the Company pays
from its assets all obligations and indebtedness of any kind incurred by it;
NEO Xxxxxxx-Gen LLC Page 7
Limited Liability Company Agreement
(b) ensure that the assets and liabilities of the Company
are readily ascertainable and subject to segregation without requiring
substantial time or expense to effect and account for such segregated assets and
liabilities;
(c) conduct the Company's business solely in its own name
(including without limitation by use of its own stationary and business forms)
so as not to mislead others as to the entity with which such others are
concerned;
(d) not engage in any activities with the Company's
affiliates (including without limitation appointing any affiliate of the Company
an agent of the Company) other than in connection with the activities set forth
in Section 1.04;
(e) not enter (or hold itself out as having entered) into
any agreement or arrangement to guarantee or, in any way or under any condition,
become obligated or liable (or hold itself out as being obligated or liable) for
all or any part of any financial or other obligation of another person or entity
other than in connection with the activities set forth in Section 1.04;
(f) not make or permit to exist loans or advances to
another person or entity other than in connection with the activities set forth
in Section 1.04;
(g) conduct its business in accordance with all requisite
limited liability company procedures and formalities; and
(h) neither control the decision with respect to the
daily affairs of any other person or entity other than in connection with the
activities set forth in Section 1.04.
5.03 FISCAL YEAR. The fiscal year of the Company shall end on
December 31st of each year.
5.04 BINDING PROVISIONS. The provisions contained in this Agreement
shall be binding upon the heirs, personal representatives, successors and
permitted assigns of the Member.
5.05 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under the present or future laws effective
during the term of this Agreement, such provision shall be fully severable, and
this Agreement will be
NEO Xxxxxxx-Gen LLC Page 8
Limited Liability Company Agreement
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of
this Agreement will remain in full force and effect, and will not be affected by
the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as part of this Agreement a
provision as similar in terms and effect to such illegal, invalid or
unenforceable provision as would be legal, valid and enforceable.
5.06 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement with respect to the subject matter of this
Agreement, and supersedes all prior and contemporaneous agreements and
understandings, inducements, or conditions, express or implied, oral or written,
except as contained in this Agreement.
5.07 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
5.08 NO THIRD PARTY BENEFICIARIES. This Agreement is made solely
and specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other person will have any rights,
interest or claim hereunder or be entitled to any benefits under or on account
of this Agreement, whether as a third party beneficiary or otherwise.
5.09 AMENDMENT OF AGREEMENT. This Agreement may be amended only by
a writing duly executed and adopted by the Member.
IN WITNESS THEREOF, the Members acknowledge this Agreement and that the
Member has duly executed and adopted this Agreement, effective as of the day and
year first above written.
NEO Corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Secretary
