Exhibit 3.28
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LIMITED LIABILITY COMPANY AGREEMENT
OF
TOKHEIM SERVICES LLC
AN INDIANA LIMITED LIABILITY COMPANY
The undersigned Members hereby form a limited liability company
pursuant to and in accordance with the Indiana Business Flexibility Act, 23 Ind.
(S) 18-1-1, et seq. (the "Act"), and hereby agree and declare as follows:
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1. Name. The name of the limited liability company formed hereby is
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Tokheim Services LLC (the "LLC").
2. Purpose. The purpose of the LLC is to engage in any and all
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lawful activities to which the Members deem appropriate.
3. Registered Office. The registered office of the LLC in the State
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of Indiana is located at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
00000.
4. Registered Agent. The name and address of the registered agent
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of the LLC for service of process on the LLC in the State of Indiana is
Corporation Trust Company, 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000.
5. Capital Accounts. An account shall be established in the LLC's
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books for each Member (each a "Capital Account") in accordance with the rules of
Section 704 of the Internal Revenue Code of 1986 and Treasury Regulation Section
1.704-1(b)(2)(iv).
6. Percentage Interest and Allocations of Profits and Losses. Each
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Member's interest in the LLC shall be expressed as a percentage equal to the
ratio on any date of such Member's Capital Account on such date to the aggregate
Capital Accounts of all Members on such date, such Capital Accounts to be
determined after giving effect to all contributions of property or money,
distributions and allocations for all periods ending on or prior to such date
(as to any Member, his or her "Percentage Interest"). The LLC's profits and
losses shall be allocated in accordance with the Percentage Interests of the
Members. Each member's Percentage Interest will be reflected on Schedule A
hereto.
7. Admission and Capital Contributions. Simultaneously with the
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execution and delivery of this Agreement, Tokheim Corporation and Tokheim
Investment Corp. are admitted as the initial Members of the LLC. The address of
Tokheim Corporation is: 00000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx, XX 00000. The
address of Tokheim Investment Corp. is: c/o CT Corporation System, 000 Xxxxx Xx.
Xxxx Xxxxxx, Xxxxxx, XX 00000.
8. Additional Contributions. Except as otherwise required by law or
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agreed in writing by all of the Members, no Member shall be required to make any
additional capital contributions to the LLC. Each additional capital
contribution shall be made payable to the LLC, in immediately available funds,
at its principle office. No Member shall be entitled to receive interest on its
capital contributions.
9. Distributions. From time to time, as determined by the Members
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owning a majority of the Percentage Interests (the "Majority Members"), the
Majority Members shall have the right to cause the LLC to distribute to the
Members, pro rata based on their respective Percentage Interests, any cash held
by it which is neither reasonably necessary for the operation of the LLC nor in
violation of Sections 18-5-4, 18-5-5 or 18-9-6 of the Act.
10. Managers. The number of Managers shall initially be three (3),
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and thereafter shall be such number as shall be fixed from time to time by the
Majority Members.
The initial Managers shall be Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxxxx
and Xxxxxx X. Xxxxxx. The Managers shall hold office during the lifetime of the
LLC until its termination as herein provided; except any Manager (a) may resign
or retire by written instrument signed by him and delivered to each other
Manager, which shall take effect upon such delivery or upon such later date as
is specified therein; (b) who be comes physically or mentally incapacitated by
reason of disease or otherwise, or is otherwise unable to serve, may be removed
by written instrument signed in good faith by at least two-thirds (2/3) of the
other Managers, specifying the date of his removal; or (c) may be removed by the
Majority Members at any meeting of the Members duly called for such purpose.
The death of a Manager shall end his or her term and create an automatic
vacancy. Any vacancy among the Managers, whether created by an increase in the
number of Managers, by the death, resignation or removal of a Manager or
otherwise, shall be filled by the Majority Members.
Except as otherwise provided herein or by law, the Managers shall have
exclusive and absolute control over the business of the LLC. The Managers shall
have the power to conduct the business of the LLC and to carry on its operations
in any and all of its offices and to do all such other things and execute all
such instruments as they deem necessary, proper or desirable in order to promote
the interests of the LLC,
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although such things are not herein specifically mentioned. Any determination as
to what is in the interests of the LLC made by the Managers in good faith shall
be conclusive.
All instruments, contracts, agreements and documents providing for the
acquisition, mortgage or disposition of property of the LLC shall be valid and
binding on the LLC if executed by Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxxxx, Xxxxxx
X. Xxxxxx or M. Xxxxxx Xxxxxx. All actions previously taken by M. Xxxxxx Xxxxxx
in forming the LLC are hereby ratified and approved.
11. Powers of Members. The number of Members shall initially be two
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(2), and thereafter shall be such number as shall be fixed from time to time by
the Majority Members. The Members shall have the right and authority to take
all actions specifically enumerated in the Certificate of Organization or this
Agreement.
12. Compensation. No Member shall receive compensation for services
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rendered to the LLC. Managers shall receive such compensation for services
rendered to the LLC as the Majority Members shall determine.
13. Term. The LLC shall dissolve, and its affairs shall be wound up,
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upon the earliest to occur of (a) the execution of a written consent by all
Members or (b) an event of dissolution of the LLC under the Act.
14. Assignments. No Member may assign, pledge and/or otherwise
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encumber its ownership or control of all or any part of, or any interest in, the
Member's Percentage Interest, without the prior written consent of each other
Member. Any permitted assignee of a Member's Percentage Interest shall, as a
condition to such assignment, comply with the requirements for becoming an
additional Member set forth in Section 17.
15. Withdrawal. Any Member may withdraw from the LLC only with the
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prior written consent of all other Members. Upon any such permitted withdrawal,
the withdrawing Member shall receive the lesser of (x) the book value of such
Member's then-current Percentage Interest in the LLC and (y) the aggregate
amount of any contributions of property or money made by such Member to the LLC.
16. Limited Liability. No Member shall have liability for the
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obligations of the LLC, except to the extent provided in the Act.
17. Additional Members. No additional Member shall be admitted to
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the LLC without the prior written consent of each of the other Members, which
consent may be evidenced by, among other things, the execution of an amendment
to this Agreement. Each additional Member, as a condition to its admission,
shall (i)
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execute and deliver to each of the other Members a counterpart to this
Agreement, agreeing for the benefit of the other Members to be bound by this
Agreement to the same extent as if the additional Member had been an original
party to the Agreement as a Member and (ii) take all action and execute all
instruments required by the LLC in order to comply with any applicable federal
or state law and regulations.
18. Amendments. This Agreement may be amended only in a writing
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signed by all of the Members.
19. Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of Indiana.
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IN WITNESS WHEREOF, the undersigned has duly executed this Limited
Liability Company Agreement as of the _____ day of January, 1999.
TOKHEIM CORPORATION
/s/ Xxxx X. Xxxxxxxxxx
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By: Xxxx X. Xxxxxxxxxx
Its: Executive Vice President, Finance &
Administration & CFO
TOKHEIM INVESTMENT CORP.
/s/ Xxxx X. Xxxxxxxxxx
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By: Xxxx X. Xxxxxxxxxx
Its: Executive Vice President, Finance &
Administration & CFO
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Schedule A
Percentage Interest
Member Percentage Interest
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Tokheim Corporation 99.0%
Tokheim Investment Corp. 1.0%
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