EXHIBIT 3.26
OPERATING AGREEMENT
OF
INERTIA DYNAMICS, LLC
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This Operating Agreement (this "Agreement") of Inertia Dynamics, LLC is
entered into by The Hay Hall Group Limited, a company incorporated under the
laws of England and Wales, as the sole member (the "Member").
The Member hereby forms a limited liability company pursuant to and in
accordance with the Limited Liability Company Act of the State of Delaware, 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
Inertia Dynamics, LLC (the "Company").
2. Purpose. The Company is formed for the object and purpose of engaging
in any lawful act or activity for which limited liability companies may be
formed under the Act and engaging in any and all activities necessary or
incidental to the foregoing.
3. Registered Office and Agent. The name and address of the registered
office and agent of the Company in the State of Delaware is c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, City of Wilmington, County of
New Castle, 19808.
4. Fiscal Year. The fiscal year of the Company (the "Fiscal Year") shall
be December 31.
5. Member. The name and the mailing address of the Member are as follows:
Name Address
- ---- -------
The Hay Hall Group Limited Hay Hall Works
134 Redfern Road
Tyseley
West Midlands B11 2BE
England
6. Qualification in Other Jurisdictions. The Member shall cause the
Company to be qualified, formed or registered under assumed or fictitious name
statutes or similar laws in any jurisdiction in which the Company transacts
business and in which such qualification or registration is required by law or
deemed advisable by the Company. The Member, as an authorized person within the
meaning of the Act and any person designated pursuant to Section 7(d) hereof,
may execute, deliver and file any certificates or other documents (and any
amendments and/or restatements thereof) necessary for the Company to do business
in
a jurisdiction in which the Company may wish to conduct business and to
establish any branch of the Company.
7. Powers.
(a) In accordance with Section 18-402 of the Act, the management of
the Company shall be vested in Philip Baldrey and Roger Burdett, both natural
persons, as the managers (the "Managers").
(b) The Managers shall have full, exclusive and complete discretion
to manage the business and affairs of the Company, to make all decisions
affecting the business and affairs of the Company and to take such actions as
the Managers deems necessary or appropriate to accomplish the purpose of the
Company as set forth herein.
(c) With respect to third parties, the Managers are agents of the
Company's business and may bind the Company.
(d) The Managers may (i) authorize by written action any person to
enter into and perform any agreement on behalf of the Company, and (ii) appoint
individuals, with such titles as the Managers may select, to act on behalf of
the Company, with such power and authority as the Managers may delegate from
time to time to any such individuals. The Managers shall promptly notify the
Member in writing of any such authorization or appointment.
(e) Any person or entity dealing with the Company or the Managers
may rely upon a certificate signed by the Managers as to the identity of the
Managers and as to the Managers' authorization or the authorization of any
person appointed pursuant to Section 7(d) to execute and deliver any instrument
or document on behalf of the Company.
8. Removal of Manager. A Manager may be removed at any time by the Member,
for any reason or no reason, and be replaced by a successor manager to be chosen
by the Member in its sole discretion. For any period of time in which there
shall be no manager of the Company, the Member shall possess all of the powers
set forth in Section 7 hereof.
9. Term. The Company shall continue until dissolved in accordance with and
upon the occurrence of any of the following events:
(a) Distribution of all of the assets of the Company to the Member;
(b) The consent of the Member; or
(c) Entry of a decree of judicial dissolution under Section 18-802
of the Act.
10. Winding Up, Liquidation and Distribution of Assets.
(a) If the Company is dissolved and its affairs are to be wound up,
the Managers (or their representatives) are directed to:
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(i) Sell or otherwise liquidate such of the Company's assets
as may be required to discharge all liabilities of the
Company, including any liabilities to the Member, and
establish such reserves as may be reasonably necessary
to provide for contingent liabilities of the Company;
and
(ii) distribute the remaining assets to the Member, such
distribution to be made either in cash or in kind, as
determined by the Managers (or their representatives).
(b) Upon completion of the winding up, liquidation and distribution
of the assets, the Company shall be deemed terminated.
11. Articles of Dissolution. When all debts, liabilities and obligations
of the Company have been paid and discharged or adequate provisions have been
made therefor and all of the remaining property and assets of the Company have
been distributed, articles of dissolution, as required by the Act, shall be
executed and filed with the Secretary of State of the State of Delaware.
12. Capital Contributions. The Member may from time to time make capital
contributions to the Company as shall be determined by the Member.
13. Distributions. The Company shall make distributions, from time to
time, as determined by the Managers; provided, however, that no distribution
shall be made in violation of Section 18-607(a) of the Act.
14. Allocation of Profits and Losses. All of the net profits and net
losses of the Company for each Fiscal Year shall be allocated to the Member.
15. Admission of Additional Members. One or more additional members may be
admitted to the Company with the consent of the Member and without the consent
of any other person or entity.
16. Liability of Members and Managers. Neither the Member nor the Managers
shall have any liability for the debts, obligations or liabilities of the
Company.
17. Exculpation.
(a) Neither the Member nor the Managers, or any director, officer or
partner of either of them (each, a "Covered Person"), shall be liable to the
Company or the Member for any loss, liability, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company. Whenever in this Agreement a Covered Person
is permitted or required to make decisions in good faith, the Covered Person
shall act under such standard and shall not be subject to any other or different
standard imposed by this Agreement or any relevant provisions of law or in
equity or otherwise.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to
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the Company by any person or entity as to matters the Covered Person reasonably
believes are within such person's or entity's professional or expert competence.
18. Fiduciary Duty. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Company or to the Member, a Covered Person acting under this Agreement
shall not be liable to the Company or to the Member for such Covered Person's
good faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
to replace such other duties and liabilities of such Covered Person.
19. Indemnification. To the fullest extent permitted by applicable law, a
Covered Person shall be entitled to indemnification from the Company for any
loss, liability, damage or claim incurred by such Covered Person by reason of
any act or omission performed or omitted by such Covered Person in good faith on
behalf of the Company; provided, that any indemnity under this Section 19 shall
be provided out of and to the extent of the Company's assets only, and no
Covered Person shall have any personal liability on account thereof.
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Member and the Company and inure to the benefit of the Covered
Persons and, in each case, their respective successors and permitted assigns.
21. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision was omitted.
22. Integration. This Agreement constitutes the entire agreement of the
Member with respect to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
23. 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), all rights and remedies being governed by said laws.
24. Amendments. This Agreement may not be amended except in writing signed
by the Member.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Agreement as of the 17th day of October, 2005.
As the Member of the Company
By: /s/ Philip Baldrey
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Name: Philip Baldrey
Title: Group Finance Director
Agreed and Accepted:
/s/ Philip Baldrey
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Philip Baldrey, Manager
/s/ Roger Burdett
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Roger Burdett, Manager
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