EXHIBIT 3.16
WINDSOR BEDDING CO., LLC
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of June 1, 2003
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ............................................. 1
ARTICLE 2 FORMATION AND PURPOSE ................................... 1
2.1 Formation, etc. ............................................... 1
2.2 Name .......................................................... 1
2.3 Registered Office/Agent ....................................... 1
2.4 Term .......................................................... 2
2.5 Purpose ....................................................... 2
2.6 Specific Powers ............................................... 2
2.7 Certificate ................................................... 3
ARTICLE 3 MEMBER; CAPITAL CONTRIBUTIONS ........................... 3
3.1 Member ........................................................ 3
3.2 Capital Contribution .......................................... 4
3.3 Additional Capital Contributions .............................. 4
3.4 Return of Capital Contributions ............................... 4
ARTICLE 4 STATUS AND RIGHTS OF THE MEMBER ......................... 4
4.1 Limited Liability ............................................. 4
4.2 No Make-Up .................................................... 4
4.3 Return of Distributions of Capital ............................ 4
ARTICLE 5 CAPITAL ACCOUNT; ALLOCATIONS; DISTRIBUTIONS ............. 5
5.1 Capital Account ............................................... 5
5.2 Allocations ................................................... 5
5.3 Distributions ................................................. 5
5.4 Withholding ................................................... 5
5.5 Taxation ...................................................... 5
ARTICLE 6 MANAGEMENT, RIGHTS, AND DUTIES OF THE MEMBER ............ 5
6.1 Management .................................................... 5
6.2 Agents ........................................................ 5
6.3 Reliance by Third Parties ..................................... 6
ARTICLE 7 TRANSFER OF INTERESTS ................................... 6
ARTICLE 8 AMENDMENTS TO AGREEMENT ................................. 6
ARTICLE 9 DISSOLUTION OF COMPANY .................................. 7
9.1 Events of Dissolution or Liquidation .......................... 7
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9.2 Liquidation ................................................... 7
ARTICLE 10 INDEMNIFICATION ........................................ 7
10.1 General ...................................................... 7
10.2 Exculpation .................................................. 8
10.3 Persons Entitled to Indemnity ................................ 8
10.4 Procedure Agreements ......................................... 8
ARTICLE 11 MISCELLANEOUS .......................................... 8
11.1 General ...................................................... 8
11.2 Notices, Etc. ................................................ 8
11.3 Gender and Number ............................................ 8
11.4 Severability ................................................. 9
11.5 Headings ..................................................... 9
11.6 No Third Party Rights ........................................ 9
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WINDSOR BEDDING CO., LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of Windsor
Bedding Co., LLC (the "Company") is entered into as of June 1, 2003 by Xxxxxxx
Company, a Delaware corporation (the "Member").
WHEREAS, the Member wishes to form a limited liability company pursuant
to and in accordance with the Delaware Limited Liability Company Act in order to
conduct the business described herein.
NOW, THEREFORE, the Member agrees as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement certain capitalized terms have
specifically defined meanings which are either set forth or referred to in
Exhibit 1 which is attached hereto and incorporated herein by reference.
ARTICLE 2
FORMATION AND PURPOSE
2.1 Formation, etc. The Company was formed as a limited liability
company pursuant To the Act by The filing Of the Certificate With the Secretary
of State of Delaware on August 15, 2001 The rights, duties and liabilities of
the Member shall be determined pursuant to the Act and this Agreement. To the
extent that such rights, duties or obligations are different by reason of any
provision of this Agreement than they would be in the absence of such provision,
this Agreement shall, to the extent permitted by the Act, control.
2.2 Name. The name of the Company is Windsor Bedding Co., LLC. The
business of the Company maybe conducted under that name or, upon compliance with
applicable laws, any other name that the Member deems appropriate or advisable.
The Member shall file, or shall cause to be filed, any fictitious name
certificates and similar filings, and any amendments thereto, that the Member
considers appropriate or advisable.
2.3 Registered Office/Agent. The registered office required to be
maintained by the Company in the State of Delaware pursuant to the Act as of the
date of this Agreement shall be c/o The Corporation Trust Company (CT
Corporation System), Corporation Trust Center, 1209 Orange Street, County of Xxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The name and address of the registered agent
of the Company pursuant to the Act as of the Date of this Agreement shall be the
Corporation Trust Company (CT Corporation System), Corporation Trust Center,
1209 Orange Street, County of Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The
Company may, upon
compliance with the applicable provisions of the Act, change its registered
office or registered agent from time to time in the discretion of the Member.
2.4 Term. The term of the Company shall continue indefinitely
unless sooner terminated as provided herein if the filing of a certificate of
cancellation is required by the Act, the existence of the Company as a separate
legal entity shall continue until the filing of such certificate in the manner
required by the Act.
2.5 Purpose. The Company is formed for the purpose of, and the
nature of the business to be conducted by the Company is, engaging in any lawful
act or activity for which limited liability companies may be formed under the
Act and engaging in any activities necessary, convenient or incidental thereto.
Such purpose shall include, without limitation, the manufacture and sale of
mattress products.
2.6 Specific Powers. Without limiting the generality of Section
2.5, the Company shall have the power and authority to take any and all actions
necessary, appropriate, proper, advisable, incidental or convenient to or for
the furtherance of the purpose set forth in Section 2.5, including, but not
limited to, the power:
2.6.1 to conduct its business, carry on its operations and
have and exercise the powers granted to a limited liability company by
the Act in any jurisdiction, whether domestic or foreign, that may be
necessary, convenient incidental to the accomplishment of the purposes
of the Company;
2.6.2 to acquire by purchase, lease, contribution of
property or otherwise, own, hold, operate, maintain, finance, improve,
lease, sell, convey, mortgage, transfer, demolish or dispose of any
real or personal property;
2.6.3 to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, perform and carry out contracts of any
kind, including without limitation guarantees and other contracts for
the benefit of or with any Member or Affiliate thereof, without regard
to whether such contracts may be deemed necessary, convenient to, or
incidental to the accomplishment of the purposes of the Company;
2.6.4 to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend,
pledge, or otherwise dispose of, and otherwise use and deal in and
with, shares or other interests in or obligations of domestic or
foreign corporations, associations, general or limited partnerships,
trusts, limited liability companies, or individuals or direct or
indirect obligations of the United States or of any government, state,
territory, governmental district municipality or of any instrumentality
of any of them;
2.6.5 to lend money, to invest and reinvest its funds, and
to accept real and personal property for the payment of funds so loaned
or invested;
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2.6.6 to xxx and be sued, complain and defend, and
participate in administrative or other proceedings, in its name;
2.6.7 to appoint employees, agents and representatives of
the Company, and define their duties and fix their compensation;
2.6.8 to indemnify any Person in accordance with the Act
and this Agreement;
2.6.9 to cease its activities and cancel its Certificate;
2.6.10 to borrow money and issue evidence of indebtedness,
and to secure the same by a mortgage, pledge or other lien on the
assets of the Company;
2.6.11 to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any and all other claims or demands of or
against the Company or to hold such proceeds against the payment of
contingent liabilities; and
2.6.12 to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
2.7 Certificate. Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxxxx are
designated as authorized persons within the meaning of the Act to execute,
deliver and file the Certificate, and the Member, Xxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxxxxx and Xxxxxxx X. XxXxxxxx are designated as authorized persons, within
the meaning of the Act, to execute, deliver and file any amendments or
restatements of the Certificate and any other certificates necessary for the
Company to qualify to do business in a jurisdiction in which the Company may
wish to conduct business.
2.8. Principal Office: The principal executive office of the
Company shall be located at such place within or without the State of Delaware
as the Member shall establish, and the Member may from time to time change the
location of the principal executive office of the Company to any place within or
without the State of Delaware. The Member may establish and maintain such
additional offices and places of business of the Company, either within or
without the State of Delaware, as it deems appropriate.
ARTICLE 3
MEMBER; CAPITAL CONTRIBUTIONS
3.1 Member. The name and the business address of the Member of the
Company is as follows:
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Name Address
---- -------
Xxxxxxx Company Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
3.2 Capital Contribution. The Member shall pay to the Company as
of the date of this Agreement a Capital Contribution of $1,000.
3.3 Additional Capital Contributions. The Member may make
additional Capital Contributions to the Company for such purposes, at such times
and in such amounts as shall be determined by such Member; provided, however,
that the Member shall not be obligated to make any additional Capital
Contributions.
3.4 Return of Capital Contributions. The Member shall not have the
right to demand a return of all or any part of its Capital Contributions, and
any return of the Capital Contributions of the Member shall be made solely from
the assets of the Company and only in accordance with the terms of this
Agreement. No interest shall be paid to the Member with respect to its Capital
Contributions.
ARTICLE 4
STATUS AND RIGHTS OF THE MEMBER
4.1 Limited Liability. Except as otherwise provided by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member nor any other Indemnified Party shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member or an Indemnified Party. All Persons
dealing with the Company shall look solely to the assets of the Company for the
payment of the debts, obligations or liabilities of the Company.
4.2 No Make-Up. In no event shall the Member be required to make
up any deficiency in its Capital Account upon the dissolution or termination of
the Company.
4.3 Return of Distributions of Capital. Except as otherwise
expressly required by law, the Member, in its capacity as such, shall have no
liability either to the Company or any of its creditors in excess of (a) the
amount of its Capital Contributions actually made, (b) its share of any assets
and undistributed profits of the Company, (c) its obligation to make a Capital
Contribution pursuant to Section 3.2 and (d) to the extent required by law, the
amount of any distributions wrongfully distributed to it. Except as required by
law or a court of competent jurisdiction, no Member or investor in or partner of
a Member shall be obligated by this Agreement to return any Distribution to the
Company or pay the amount of any Distribution for the account of the Company or
to any creditor of the Company. The amount of any Distribution returned to the
Company by or on behalf of the Member or paid by or on behalf of the Member
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for the account of the Company or to a creditor of the Company shall be added to
the account or accounts from which it was subtracted when it was distributed to
the Member.
ARTICLE 5
CAPITAL ACCOUNT; ALLOCATIONS; DISTRIBUTIONS
5.1 Capital Account. The Company shall maintain a capital account
(a "Capital Account") for the Member. The Capital Account shall be increased by
all capital contributions made by the Member and all profits allocated to the
Member and be decreased by all distributions to the Member and by all losses
allocated to the Member.
5.2 Allocations. All of the Company's profits and losses shall be
allocated to the Member.
5.3 Distributions. The amount and timing of all distributions
shall be determined by the Member. Distributions may be made in cash, securities
or other property.
5.4 Withholding. The Member hereby authorizes the Company to
withhold and pay over any withholding or other taxes payable by the Company as a
result of the Member's status as a Member hereunder.
5.5 Taxation. It is the intent of the Member that, since the
Company has a single owner, the Company shall be disregarded as an entity
separate from its Member for federal tax purposes pursuant to Section 7701 of
the Code and the Treasury Regulations promulgated thereunder, until such time,
if any, that the Company elects to be treated as an association taxable as a
"corporation" for federal income tax purposes.
ARTICLE 6
MANAGEMENT, RIGHTS, AND DUTIES
OF THE MEMBER
6.1 Management. Management, operation and policy of the Company
shall be vested exclusively in the Member, and there shall be no "manager"
within the meaning of the Act. The Member, acting through its duly authorized
agents, is authorized and empowered on behalf and in the name of the Company to
perform all acts and engage in all activities and transactions which it may in
its sole discretion deem necessary or advisable in order to cause the Company to
carry out its purpose and exercise the powers granted to the Company hereunder
and under the Act. The Member is an agent of the Company and the actions of the
Member in such capacity shall be binding on the Company without liability to the
Member.
6.2 Agents. The Member by written instrument signed by the Member
shall have the power to appoint agents (who may be referred to as officers) to
act for the Company with such titles, if any, as the person or entity making the
appointment deems appropriate and to delegate to such agents such of the powers
as are held by the Member hereunder including the power to execute documents on
behalf of the Company, as the Member may determine; provided, however, that no
such appointment or delegation shall cause the Person so appointed or
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delegated to be deemed a "manager" within the meaning of the Act. The agents so
appointed may include persons holding titles such as Chief Executive Officer,
President, Chief Financial Officer, Executive Vice President, Vice President,
Treasurer, Controller, Secretary or Assistant Secretary. Any officer may be
removed at any time with or without cause. The officers of the Company as of the
date hereof are set forth on Exhibit 6.2. Unless the authority of the agent
designated as the officer in question is limited in the document appointing such
officer, any officer so appointed shall have the same authority to act for the
Company as a corresponding officer of a Delaware corporation would have to act
for a Delaware corporation in the absence of a specific delegation of authority
and all deeds, leases, transfers, contracts, bonds, notes, checks, drafts or
other obligations made, accepted or endorsed by the corporation may be signed by
the Chairman, if any, the President, a Vice President, the Treasurer,
Controller, the Secretary or Assistant Secretary at the time in office. The
Member by written instrument signed by the Member may, in the sole discretion of
the Member, ratify any act previously taken by an agent acting on behalf of the
Company. Except as provided in this Section 6.2, the Member shall be the sole
person with the power to bind the Company.
6.3 Reliance by Third Parties. Any person or entity dealing with
the Company or the Member may rely upon a certificate signed by the Member as
to: (a) the identity of the Member; (b) the existence or non-existence of any
fact or facts which constitute a condition precedent to acts by the Member or
are in any other manner germane to the affairs of the Company; (c) the persons
who or entities which are authorized to execute and deliver any instrument or
document of or on behalf of the Company; (d) the authorization of any action by
or on behalf of the Company by the Member or any officer or agent acting on
behalf of the Company; or (e) any act or failure to act by the Company or as to
any other matter whatsoever involving the Company or the Member.
ARTICLE 7
TRANSFER OF INTERESTS
The Member may sell, assign, pledge, encumber, dispose of or otherwise
transfer all or any part of the economic or other rights that comprise its
Interest. The transferee shall have the right to be substituted for the Member
under this Agreement for the transferor if so determined by the Member. No
Member may withdraw or resign as Member except as a result of a transfer
pursuant to this Article 7 in which the transferee is substituted for the
Member.
ARTICLE 8
AMENDMENTS TO AGREEMENT
This Agreement may be amended or modified by the Member. The Member
shall cause to be prepared and filed any amendment to the Certificate that may
be required to be filed under the Act as a consequence of any such amendment or
modification.
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ARTICLE 9
DISSOLUTION OF COMPANY
9.1 Events of Dissolution or Liquidation. The Company shall be
dissolved upon the happening of either of the following events: (a) the written
determination of the Member or (b) the entry of a decree of judicial dissolution
under Section 18-802 of the Act.
9.2 Liquidation. After termination of the business of the Company,
the assets of the Company shall be distributed in the following order of
priority:
(a) to creditors of the Company, including the Member if
a creditor to the extent permitted by law, in
satisfaction of liabilities of the Company (whether by
payment thereof or the making of reasonable provision
for payment thereof) other than liabilities for
which reasonable provision for payment has been made
and liabilities for distributions to the Member under
Section 5.3 and upon termination of the Company; and
then
(b) to the Member.
ARTICLE 10
INDEMNIFICATION
10.1 General. The Company shall indemnify, defend, and hold harmless
the Member and any director, officer, partner, stockholder, controlling Person
or employee of the Member, and any Person serving at the request of the Company
as a director, officer, employee, partner, trustee or independent contractor of
another corporation, partnership, limited liability company, joint venture,
trust or other enterprise (all of the foregoing Persons being referred to
collectively as "Indemnified Parties" and individually as an "Indemnified
Party") from any liability, loss or damage incurred by the Indemnified Party by
reason of any act performed or omitted to be performed by the Indemnified Party
in connection with the business of the Company and from liabilities or
obligations of the Company imposed on such Party by virtue of such Party's
position with the Company, including reasonable attorneys' fees and costs and
any amounts expended in the settlement of any such claims of liability, loss or
damage; provided, however, that if the liability, loss, damage or claim arises
out of any action or inaction of an Indemnified Party, indemnification under
this Article 10 shall be available only if (a) either (i) the Indemnified
Party, at the time of such action or inaction, determined in good faith that
its, his or her course of conduct was in, or not opposed to, the best interests
of the Company or (ii) in the case of inaction by the Indemnified Party, the
Indemnified Party did not intend its, his or her inaction to be harmful or
opposed to the best interests of the Company, and (b) the action or inaction
did not constitute fraud, gross negligence or willful misconduct by the
Indemnified Party; provided, further, however, that the indemnification under
this Section 10.1 shall be recoverable only from the assets of the Company and
not from any assets of the Member. Unless the Member determines in good faith
that the Indemnified Party is unlikely to be entitled to indemnification under
this Article 10, the Company shall pay or reimburse reasonable attorneys' fees
of an
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Indemnified Party as incurred, provided that such Indemnified Party executes an
undertaking, with appropriate security if requested by the Member, to repay the
amount so paid or reimbursed in the event that a final non-appealable
determination by a court of competent jurisdiction that such Indemnified Party
is not entitled to indemnification under this Article 10. The Company may pay
for insurance covering liability of the Indemnified Party for negligence in
operation of the Company's affairs.
10.2 Exculpation. No Indemnified Party shall be liable, in damages or
otherwise, to the Company or to the Member for any loss that arises out of any
act performed or omitted to be performed by it, him or her pursuant to the
authority granted by this Agreement if (a) either (i) the Indemnified Party, at
the time of such action or inaction, determined in good faith that such
Indemnified Party's course of conduct was in, or not opposed to, the best
interests of the Company, or (ii) in the case of inaction by the Indemnified
Party, the Indemnified Party did not intend such Indemnified Party's inaction
to be harmful or opposed to the best interests of the Company, and (b) the
conduct of the Indemnified Party did not constitute fraud, gross negligence or
willful misconduct by such Indemnified Party.
10.3 Persons Entitled to Indemnity. Any Person who is within the
definition of "Indemnified Party" at the time of any action or inaction in
connection with the business of the Company shall be entitled to the benefits
of this Article 10 as an "Indemnified Party" with respect thereto, regardless
whether such Person continues to be within the definition of "Indemnified
Party" at the time of such Indemnified Party's claim for indemnification or
exculpation hereunder.
10.4 Procedure Agreements. The Company may enter into an agreement
with any of its officers, employees, consultants, counsel and agents, or the
Member, setting forth procedures consistent with applicable law for
implementing the indemnities provided in this Article 10.
ARTICLE 11
MISCELLANEOUS
11.1 General. This Agreement: (a) shall be binding upon the legal
successors of the Member; (b) shall be governed by and construed in accordance
with the laws of the State of Delaware; and (c) contains the entire agreement
as to the subject matter hereof. The waiver of any of the provisions, terms, or
conditions contained in this Agreement shall not be considered as a waiver of
any of the other provisions, terms, or conditions hereof.
11.2 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or receipt (which may be evidenced by a return receipt
if sent by registered mail or by signature if delivered by courier or delivery
service), addressed to the Member at its address in the records of the Company
or otherwise specified by the Member.
11.3 Gender and Number. Whenever required by the context, as used in
this Agreement the singular number shall include the plural, the plural shall
include the singular, and
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all words herein in any gender shall be deemed to include the masculine,
feminine and neuter genders.
11.4 Severability. If any provision of this Agreement is determined
by a court to be invalid or unenforceable, that determination shall not affect
the other provisions hereof, each of which shall be construed and enforced as
if the invalid or unenforceable portion were not contained herein. That
invalidity or unenforceability shall not affect any valid and enforceable
application thereof, and each said provision shall be deemed to be effective,
operative, made, entered into or taken in the manner and to the full extent
permitted by law.
11.5 Headings. The headings used in this Agreement are used for
administrative convenience only and do not constitute substantive matter to be
considered in construing the terms of this Agreement.
11.6 No Third Party Rights: Except for the provisions of Section 6.3,
the provisions of this Agreement are for the benefit of the Company, the Member
and permitted assignees and no other Person, including creditors of the
Company, shall have any right or claim against the Company or the Member by
reason of this Agreement or any provision hereof or be entitled to enforce any
provision of this Agreement.
[The remainder of this page is intentionally blank.]
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IN WITNESS WHEREOF, the Member has executed this Agreement as of the day
and year first set forth above.
XXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Assistant Secretary
and Assistant Treasurer
EXHIBIT 1
DEFINED TERMS
"Act" shall mean the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et. seq.) as amended and in effect from time to time.
"Affiliate" shall mean, with respect to any specified Person, any
Person that directly or through one or more intermediaries controls or is
controlled by or is under common control with the specified Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
"Agreement" shall mean the Limited Liability Company Agreement of the
Company dated as of June 1, 2003, as amended from time to time.
"Capital Account" is defined in Section 5.1.
"Capital Contribution" shall mean the amount of cash and the fair
market value of any other property contributed to the Company with respect to
the Interest held by the Member.
"Certificate" shall mean the Certificate of Formation of the Company
filed on August 15, 2001 and any and all amendments thereto and restatements
thereof filed on behalf of the Company as permitted hereunder with the office
of the Secretary of State of the State of Delaware.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the corresponding provisions of any future federal tax law.
"Company" shall mean the limited liability company formed under and
pursuant to the Act and this Agreement.
"Distribution" shall mean the amount of cash and the fair market value
of any other property distributed in respect of the Member's Interest in the
Company.
"Fiscal Year" shall mean the fiscal year of the Company which shall
end on December 31 in each year or on such other date in each year as the Member
shall otherwise elect.
"Indemnified Party" is defined in Section 10.1.
"Interest" shall mean the entire interest of the Member in the capital
and profits of the Company, including the right of the Member to any and all
benefits to which the Member may
be entitled as provided in this Agreement, together with the obligations of the
Member to comply with all the terms and provisions of this Agreement.
"Member" shall mean the Person listed as member on the signature page
to the Agreement and any other Person that both acquires an Interest in the
Company and is admitted to the Company as a Member pursuant to this Agreement.
"Person" shall mean an individual, partnership, joint venture,
association, corporation, trust, estate, limited liability company, limited
liability partnership, or any other legal entity.
Exhibit 6.2
OFFICERS
Xxxxxxx X. Xxxxx Chief Executive Officer
Xxxxxx X. Xxxxxxx President
Xxxxxxx X. Xxxxxxxxx Executive Vice President, Chief Financial Officer,
Assistant Secretary and Assistant Treasurer
Xxxxxx X. Xxxxxx Executive Vice President -- Human Resources and
Assistant Secretary
Xxxxxxx X. XxXxxxxx Senior Vice President, General Counsel and Secretary
Xxxxx X. Xxxxx Vice President, Treasurer and Assistant Secretary
Xxxx X. Xxxxxxxxx Vice President and Assistant Secretary
Xxxx X. Xxxxxx Vice President and Assistant Secretary
