EXHIBIT 3.28
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT PRIDECO PC COMPOSITES HOLDINGS, LLC.
DATED AS OF AUGUST 2, 2001
THE MEMBERSHIP INTERESTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP INTEREST
MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY SECURITIES LAW)
UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE SECURITIES LAWS WITH
RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A MEMBERSHIP
INTEREST ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE APPLICABLE
PROVISIONS OF THIS AGREEMENT ARE SATISFIED.
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT PRIDECO PC COMPOSITES HOLDINGS, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT OF Grant Prideco PC Composites
Holdings, LLC (this "Agreement"), dated as of August 2, 2001, is adopted,
executed and agreed to by Grant Prideco Holding, LLC, a Delaware limited
liability company, as the sole Member:
R E C I T A L S:
The Member desires to form a Delaware limited liability company in
accordance with the following terms and conditions.
A G R E E M E N T:
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein set forth and intending to be legally bound, the parties
hereto hereby enter into this Agreement pursuant to the provisions and upon the
terms and conditions therein contained, and hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms have
the following meanings:
"Act" means the Delaware Limited Liability Company Act (6 Del
C. Section 18-101, et seq.) and any successor statute, as amended from
time to time.
"Agreement" has the meaning given that term in the
introductory paragraph.
"Capital Contribution" means any contribution by the Member to
the capital of the Company.
"Certificate" has the meaning given that term in Section 2.1.
"Company" means Grant Prideco PC Composites Holdings, LLC, a
Delaware limited liability company.
"Managers" has the meaning given that term in Section 5.1.
"Member" means Grant Prideco Holding, LLC, a Delaware limited
liability company.
1
"Officers" has that meaning given in Section 6.1.
"Person" has the meaning given that term in Section 18-101(12)
of the Act.
"Proceeding" has the meaning given that term in Section 7.1.
Other terms defined herein have the meanings so given them.
1.2 Construction. Whenever the context requires, the gender of all
words used in this Agreement includes the masculine, feminine and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement. Terms used with initial capital letters will have the meanings
specified, applicable to both singular and plural forms, for all purposes of
this Agreement. The word include (and any variation) is used in an illustrative
sense rather than a limited sense. The word day means a calendar day.
ARTICLE 2
ORGANIZATION
2.1 Formation. The Company has been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the
"Certificate") under and pursuant to the Act.
2.2 Name. The name of the Company is "Grant Prideco PC Composites
Holdings, LLC" and all Company business must be conducted in that name or such
other names that comply with applicable law as the Member may select from time
to time.
2.3 Registered Office; Registered Agent; Principal Office in the United
States; Other Offices. The registered office of the Company required by the Act
to be maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the Company) as the Member may designate from time to
time in the manner provided by law. The registered agent of the Company in the
State of Delaware shall be the initial registered agent named in the Certificate
or such other Person or Persons as the Member may designate form time to time in
the manner provided by law. The principal office of the Company in the United
States shall be at such place as the Member may designate from time to time,
which need not be in the State of Delaware. The Company may have such other
offices as the Member may designate from time to time.
2.4 Purpose. The purpose of the Company is to engage solely in the
business of holding and maintaining the limited partnership interests of PC
Composites, L.P. and ownership interests in other entities affiliated with the
Member and the Company is authorized to conduct any lawful business, purpose or
activity directly or indirectly related thereto. The Company's place of business
shall be outside the State of Texas.
2.5 Powers. The Company has all of the powers necessary or convenient
to achieve its purposes and to further its business.
2.6 Legal Title. Legal title to the assets of the Company will be taken
and at all times held in the name of the Company.
2
2.7 Qualifications. The Managers may take any and all actions deemed
reasonably necessary by the Managers to qualify the Company in foreign
jurisdictions.
2.8 Mergers and Exchanges. With the consent of the Member, the Company
may be a party to (a) a merger, or (b) an exchange or acquisition of the type
described in Section 18-209 of the Act.
2.9 Liability to Third Parties. The Member shall not be liable for the
debts, obligations or liabilities of the Company, including under a judgment
decree or order of a court.
2.10 Resignation of the Member. The Member may resign from the Company
prior to the dissolution and winding up of the Company.
2.11 Transfer or Pledge by the Member. The Member may transfer or
pledge its interest in the Company without restriction. The pledge or
hypothecation of, or the granting of any security interest or other lien or
encumbrance against, all or part of the Member's membership interest in the
Company by the Member will not cause the withdrawal of the Member from the
Company.
2.12 Bankruptcy of the Member. The Member shall not cease to be a
Member of the Company by virtue of the occurrence of any of the events listed in
Section 18-304 of the Act.
ARTICLE 3
CAPITAL CONTRIBUTIONS
3.1 Initial Contributions. The Member is making a Capital Contribution
to the Company in the form of cash, series or other tangible or intangible
assets.
3.2 Additional Contributions. The Member shall not be required to make
any additional contributions to the capital of the Company.
3.3 No Withdrawal of Contributions. The Member shall not be entitled to
withdraw any part of the Member's capital account or to receive any distribution
from the Company, except as specifically provided in this Agreement. There shall
be no obligation to return to the Member any part of the Member's capital
contributions to the Company until such time as the Company is dissolved and
terminated.
3.4 Advances by the Member. If the Company does not have sufficient
cash to pay its obligations, the Member may advance all or part of the needed
funds to or on behalf of the Company. An advance described in this Section
constitutes a loan from the Member to the Company, bears interest at a rate
determined by the Member from the date of the advance until the date of payment,
and is not a Capital Contribution.
3.5 Certification of Membership Interests. The Member hereby specifies,
acknowledges and agrees that all interests in the Company are securities
governed by Article 8 and all other provisions of the Uniform Commercial Code as
adopted and amended in the State of Delaware (the "UCC"), and pursuant to the
terms of Section 8.103 of the UCC, such interests shall be "securities" for all
purposes under such Article 8 and under all other provisions of the
3
UCC, and that the ownership interest of the Member shall be recognized by a form
of Membership Certificate attached hereto as Annex A ("Certificates").
Certificates shall be numbered and executed by the President and Secretary of
the Company and shall be entered into a membership transfer register as they are
issued, which register shall be maintained by the Secretary of the Company. Upon
surrender to the Secretary of the Company of a certificate for membership
interests duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Company to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS
4.1 Allocations. All items of income, gain, loss, deduction, and credit
of the Company shall be allocated to the Member.
4.2 Distributions. Subject to the limitations of Section 18-607 of the
Act, from time to time the Managers may cause the Company to make a distribution
of cash or other property to the Member. From time to time the Managers also may
cause property of the Company other than cash to be distributed to the Member,
which distribution may be made subject to existing liabilities and obligations.
ARTICLE 5
MANAGEMENT
5.1 Management. Subject to the provisions of the Agreement, the Company
shall appoint managers (the "Managers"), who shall have exclusive authority to
act on behalf of the Company. Subject to the provisions of this Agreement, the
Managers shall have the authority to manage the business and affairs of the
Company. The member shall have no authority to act on behalf of or bind the
Company.
5.2 Selection, Removal and Resignation of Managers. The Member shall
select any and all Managers of the Company. The initial Managers of the Company
shall be Xxxxxx X. Xxxx and Xxxxxx X. Xxxxxx. The Member may remove any of the
Managers at any time, with or without cause, upon delivery to such Manager at
the principal office of the Company of written notice of such removal. Further,
any of the Mangers may resign upon delivery to the Member at the principal
office of the Company of written notice of such resignation.
5.3 Compensation. The Managers shall receive such compensation for
their duties as Managers as the Member shall determine in its sole discretion.
4
ARTICLE 6
OFFICERS
6.1 Officers. The officers of the Company shall be elected by the
Managers, and shall include a President, a Secretary, a Treasurer, and such
other officers, employees and agents as appointed, from time to time, in
accordance with this Agreement. Additionally, the President shall have the power
to appoint such Vice Presidents and other officers equivalent or junior thereto
as the President may deem appropriate.
6.2 Term. Each officer of the Company shall serve at the pleasure of
the Managers, and the Managers may remove any officer at any time with or
without cause. Any officer, if appointed by the President of the Company, may
likewise be removed by the President of the Company.
6.3 Authority and Duties. All officers and agents of the Company shall
have such authority and perform such duties in the management of the property
and affairs of the Company as generally pertain to their respective offices, as
well as such authority and duties as may be determined by the Managers.
6.4 Execution of Instruments. Checks, notes, drafts, other commercial
instruments, assignments, guarantees of signatures, and contracts (except as
otherwise provided herein or by law) shall be executed by the President, any
Vice President, the Secretary, the Treasurer, or such officers or employees or
agents as the Managers or any of such designated officers may direct.
ARTICLE 7
INDEMNIFICATION
7.1 Right to Indemnification. Subject to the limitations and conditions
as provided in this Article 7, each Person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (thereinafter a "Proceeding"), or any appeal in
such a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that he, or a Person of whom he is the legal
representative, is or was a Manager or Member of the Company shall be
indemnified by the Company to the fullest extent permitted by the Act, as the
same 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 said law permitted the Company to provide prior to
such amendment) against judgments, penalties (including excise and similar taxes
and punitive damages), fines, settlements and reasonable expenses (including,
without limitation, attorneys' fees) actually incurred by such Person in
connection with such Proceeding, and indemnification under this Article 7 shall
continue as to a Person who has ceased to serve in the capacity which initially
entitled such Person to indemnity hereunder. The rights granted pursuant to this
Article 7 shall be deemed contract rights, and no amendment, modification or
repeal of this Article 7 shall have the effect of limiting or denying any such
rights with respect to actions taken or Proceedings arising prior to any such
amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Article 7 could involve indemnification for
negligence or under theories of strict liability.
5
7.2 Advance Payment. The right to indemnification conferred in this
Article 7 shall include the right to be paid or reimbursed by the Company the
reasonable expenses incurred by a Person of the type entitled to be indemnified
under Section 6.1 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding in advance of the final disposition of the Proceeding
and without any determination as to the Person's ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred
by any such Person in advance of the final disposition of a Proceeding, shall be
made only upon delivery to the Company of a written affirmation by the Person of
his good faith belief that he has met the standard of conduct necessary for
indemnification under this Article 7 and a written undertaking, by or on behalf
of such Person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified Person is not entitled to be indemnified under
this Article 7 or otherwise.
7.3 Indemnification of Officers, Employees and Agents. The Company, by
adoption of a resolution of the Member, may indemnify and advance expenses to an
officer, employee or agent of the Company to the same extent and subject to the
same conditions under which it may indemnify and advance expenses to a Manager
or Member under this Article 7; and, the Company may indemnify and advance
expenses to Persons who are not or were not a Manager or Member, officers,
employees or agents of the Company but who are or were serving at the request of
the Company as a manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in such a capacity or arising
out of his status as such a Person to the same extent that it may indemnify and
advance expenses to a Manager or Member under this Article 7.
7.4 Appearance as a Witness. Notwithstanding any other provision of
this Article 7, the Company may pay or reimburse expenses incurred by a Person
in connection with his appearance as a witness or other participation in a
Proceeding at a time when he is not a named defendant or respondent in the
Proceeding.
7.5 Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article 7 shall not be
exclusive of any other right which the Managers, the Member or other Person
indemnified pursuant to this Article 7 may have or hereafter acquire under any
law (common or statutory), provision of the Certificate or this Agreement,
agreement, vote of the Member or otherwise.
7.6 Insurance. The Company may purchase and maintain insurance, at its
expense, to protect itself and any Person who is or was serving as a Manager,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a member, manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan 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 this
Article 7.
6
7.7 Savings Clause. If this Article 7 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless the Managers or the
Member or any other Person indemnified pursuant to this Article 7 as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative to the fullest extent permitted
by any applicable portion of this Article 7 that shall not have been invalidated
and to the fullest extent permitted by applicable law.
ARTICLE 8
TAX AND BOOKS
8.1 Federal Income Tax Treatment. For federal income tax purposes, the
Company shall be an entity separate from the Member pursuant to Treasury
Regulations Section 301.7701-3(b)(1)(ii). The Managers are hereby authorized to
make such elections and to take any and all action to ensure that the Company is
classified as an entity separate from the Member for federal income tax
purposes.
8.2 Other Tax Returns. Subject to Section 7.1, the Managers shall cause
to be prepared and filed all necessary tax returns for the Company.
8.3 Maintenance of Books and Records. The Company shall keep accurate
books and records of accounts. The calendar year shall be the accounting year of
the Company. The Member shall be permitted access to all books and records of
the Company at the principal office of the Company during business hours.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND TERMINATION
9.1 Dissolution. The Company shall dissolve and its affairs shall be
wound up on the first to occur of the following:
(a) The written consent of the Member;
(b) At any time there are not Members, unless the business of
the Company is continued pursuant to Section 18-801(4) of the Act; and
(c) Entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Act.
The death, retirement, resignation, expulsion, bankruptcy or
dissolution of any Member or the occurrence of any other event that terminates
the continued membership of any Member shall not cause the Company to be
dissolved or its affairs to be wound up.
9.2 Liquidation and Termination. On dissolution of the Company, the
Managers shall act as liquidating trustees or the Member may appoint one or more
other Persons to act as liquidating trustee. The liquidating trustee shall
proceed diligently to wind up the affairs of the Company in accordance with
Section 18-804 of the Act and make final distributions to the
7
Member. The costs of liquidation shall be borne as a Company expense. Until
final distribution, the liquidating trustee shall continue to operate the
Company assets with all of the power and authority of the Managers.
9.3 Deficit Capital Accounts. Notwithstanding anything to the contrary
contained in this Agreement, and notwithstanding any custom or rule of law to
the contrary, the Member shall not be responsible for any deficit in any capital
account attributed to the Member, and upon dissolution of the Company any such
deficit shall not be an asset of the Company and the Member shall not be
obligated to contribute such amount to the Company to bring the balance of the
Member's capital account to zero.
9.4 Certificate of Cancellation. On completion of the distribution of
Company assets as provided herein, the Company is terminated, and the Managers
(or such other Person or Persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of Delaware and take
such other actions as may be necessary to terminate the Company.
ARTICLE 10
GENERAL PROVISIONS
10.1 Entire Agreement; Supersedure. This Agreement constitutes the
entire agreement of the Member relating to the Company and supersedes all prior
contracts or agreements with respect to the internal governance of the Company,
whether oral or written.
10.2 Effect of Waiver or Consent. A waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by that
Person of its obligations with respect to the Company is not a consent or waiver
to or of any other breach or default in the performance by that Person of the
same or any other obligations of that Person with respect to the Company.
Failure on the part of a Person to complain of any act of any Person or to
declare any Person in default with respect to the Company, irrespective or how
long that failure continues, does not constitute a waiver by that Person of its
rights with respect to that default until the applicable statute of limitations
period has run.
10.3 Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument adopted by the Member.
10.4 Binding Effect. This Agreement is binding on, and inures to the
benefit of, the Member and its heirs, legal representatives, successors, and
assigns.
10.5 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of that provision to other Persons or circumstances is not affected thereby and
that provision shall be enforced to the greatest extent permitted by law.
10.6 Headings. Article and Section titles have been inserted for
convenience of reference only, and they are not intended to affect the meaning
or interpretation of this Agreement.
8
10.7 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and (a) any
provision of the Certificate, or (b) any mandatory provision of the Act, the
applicable provision of this Agreement shall control except to the extent
required by the Act.
IN WITNESS WHEREOF, the Member has executed this Limited Liability
Company Agreement as of the date first set forth above.
Grant Prideco Holding, LLC
a Delaware limited liability company,
sole member
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
9
