LIMITED LIABILITY COMPANY AGREEMENT OF POST FOODS, LLC
Exhibit 3.28
THIS LIMITED LIABILITY COMPANY AGREEMENT (the “Limited Liability Company Agreement”) is
made and entered into as of the 4th day of August, 2008, by Ralcorp Holdings, Inc., a Missouri
corporation, the sole member (the “Member”).
1. Post Foods, LLC, formerly known as Cable Newco, LLC, (the “Company”)
was formed on November 13, 2007, as a limited liability company under the Delaware Limited
Liability Company Act and, as required thereunder, does hereby adopt this Limited Liability
Company Agreement as the Limited Liability Company Agreement of the
Company.
2.
The vote, action, decision or consent of the sole Member shall constitute a
valid decision of the Member and the Company.
3.
The decisions and actions of the Member shall be carried out by the sole
Member and/or individuals (the “Individuals”) granted authority to act on behalf of the sole
Member, pursuant to resolutions, from time to time, adopted by the
Member.
4. The duration of the Company shall be perpetual.
5. The Member’s capital contribution to the capital of the Company for the
Member’s interest in the Company shall be reflected on the books
and records of the Company.
6. (a) The Member and the Individuals and their respective affiliates,
stockholders, members, managers, directors, officers, partners, employees, agents and
representatives (individually, an “Indemnitee”) shall be indemnified and held harmless by the
Company from and against any and all losses, claims, damages, liabilities, expenses (including
legal
fees and expenses), judgments, fines, settlements and other amounts arising from any and all
claims,
demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in
which the
Indemnitee may be involved, or threatened to be involved, as a party or otherwise by reason of
such
Indemnitee’s status as any of the foregoing, which relates to or arises out of the Company,
its assets,
business or affairs, if in each of the foregoing cases (i) the Indemnitee acted in good faith
and in a
manner such Indemnitee believed to be in, or not opposed to, the best interests of the
Company,
and, with respect to any criminal proceeding, had no reasonable cause to believe such
Indemnitee’s
conduct was unlawful, and (ii) the Indemnitee’s conduct did not constitute gross negligence or
willful or wanton misconduct. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere, or its equivalent,
shall not, of itself,
create a presumption that the Indemnitee acted in a manner contrary to that specified in (i)
or (ii)
above Any indemnification pursuant to this Section 6 shall be made only out of the assets of
the
Company and the Member shall not have any personal liability on
account thereof.
(b) Expenses (including reasonable legal fees) incurred by an Indemnitee in
defending any claim, demand, action, suit or proceeding described in the foregoing paragraph
may,
from time to time, be advanced by the Company prior to the final disposition of such claim,
demand, action, suit or proceeding, in the discretion of the Member, upon receipt by the
Company
of an undertaking by or on behalf of the Indemnitee to repay such amount if it shall be
determined
that the Indemnitee is not entitled to be indemnified as authorized
in this Section 6.
(c) The indemnification and advancement of expenses set forth in this Section 6
shall not be exclusive of any other rights to which those seeking indemnification or
advancement of
expenses may be entitled under any statute, the Company’s articles of organization, this Limited
Liability Company Agreement, any other agreement, a vote of the Member, a policy of insurance or
otherwise, and shall not limit in any way any right which the Company may have to make additional
indemnifications with respect to the same or different persons or classes of persons, as determined
by the Member. The indemnification and advancement of expenses set forth in this Section 6 shall
continue as to a person or entity who has ceased to hold the position giving rise to such
indemnification and shall inure to the benefit of the heirs, executors, administrators, successors
and assigns of such a person or entity.
(d) The Company may purchase and maintain insurance on behalf of any
Indemnitee against any liability asserted against an Indemnitee and incurred by an Indemnitee
in
such capacity, or arising out of such Indemnitee’s status as aforesaid, whether or not the
Company
would have the power to indemnify such Indemnitee against such liability under this Section 6.
(e) In the event that an amendment to this Limited Liability Company
Agreement reduces or eliminates any Indemnitee’s right to indemnification pursuant to this
Section 6, such amendment shall not be effective with respect to any Indemnitee’s right to
indemnification that accrued prior to the date of such amendment. For purposes of this Section
6, a
right to indemnification shall accrue as of the date of the event underlying the claim that
gives rise to
such right to indemnification. All calculations of claims and the amount of indemnification to
which
any Indemnitee is entitled under this Section 6 shall be made (i) giving effect to the tax
consequences of any such claim and (ii) after deduction of all proceeds of insurance net of
retroactive premiums and self-insurance retention recoverable by the Indemnitee with respect
to
such claims.
7. Pursuant to existing law, the Company will be disregarded for federal and
state income tax purposes. The admission of one or more additional Members, however, will
cause
the Company to be recognized for tax purposes, and to be taxed, as a partnership.
8. Upon an “event of withdrawal” (as defined in the Act) of the Member or
upon the occurrence of any other event which terminates the continued membership of the Member
in the Company, the Company shall not be dissolved, and the business of the Company shall
continue. The Member hereby specifically consents to such continuation of the business of the
Company upon any event of withdrawal of the Member. The Member’s legal representative,
assignee or successor shall automatically become an assignee of the Member’s interest and
shall automatically become a substitute Member in place of the withdrawn Member.
9. This Limited Liability Company Agreement replaces any prior limited liability
company agreement of the Company.
IN WITNESS WHEREOF, the Member has caused this Limited Liability Company Agreement to be duly
executed as of the date first written above.
| RALCORP HOLDINGS, INC., SOLE MEMBER |
||||
| By | /s/ X. X. Xxxxx | |||
| X. X. Xxxxx, Xx., Secretary | ||||
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