EXHIBIT 3.12
LIMITED LIABILITY COMPANY AGREEMENT
OF
▇▇▇▇ TECHNOLOGIES, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
DATED AS OF DECEMBER 31,1998
LIMITED LIABILITY COMPANY AGREEMENT
OF
▇▇▇▇ TECHNOLOGIES, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (as amended, restated or
otherwise modified, this "Agreement") of ▇▇▇▇ Technologies, LLC (the "Lear
Tech") is being executed by Lear Technology Corporation (the "Member") as of
this day of December, 1998, pursuant to the provisions of the Delaware
Limited Liability Company Act (6 Del. C. ss 18-101, et seq.) (as amended from
time to time, the "Act"), on the following terms and conditions:
ARTICLE I
THE LLC
1.1 Organization. The Member hereby agrees to form a limited liability
company pursuant to the provisions of the Act and upon the terms and
conditions set forth in this Agreement. The Member shall be deemed admitted
as a member of Lear Tech upon its execution of this Agreement.
1.2 LLC Name. The name of the limited liability company formed hereby
shall be "▇▇▇▇ Technologies, LLC" and all business of Lear Tech shall be
conducted in such name or such other name as the Member shall determine. Lear
Tech shall hold all of its property in the name of the Lear Tech and not in the
name of the Member.
1.3 Purpose. The purpose and business of Lear Tech shall be to engage
in any law full act or activity for which a limited liability company may be
organized under the Act, and to do any and all acts and things which may be
necessary or incidental to the foregoing, the promotion or conduct of the
business of Lear Tech or the maintenance and improvement of its property.
1.4 Powers. Lear Tech shall possess and may exercise all the powers and
privileges granted by the Act, all other applicable law or by this Agreement,
together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion and attainment
of the business, purposes or activities of Lear Tech.
1.5 Principal Place of Business. The principal place of business of
Lear Tech shall be at such location as may be designated by the Member from time
to time.
1.6 Term. The term of Lear Tech shall be perpetual unless and until
Lear Tech is dissolved by the Member or as set forth herein. The existence of
Lear Tech as a separate legal entity shall continue until the cancellation of
the Certificate of Formation of Lear Tech (the "Certificate") in the manner
required by the Act.
1.7 Filings; Agent for Service of Process.
(a) The Certificate has been or shall be filed in the office
of the Secretary of State of the State of Delaware in accordance with
the provisions of the Act. The Member, as an "authorized person" within
the meaning of the Act, shall execute, deliver and file the Certificate
with the Secretary of State of the State of Delaware. The Member shall
take any and all other actions reasonably necessary to perfect and
maintain the status of Lear Tech under the laws of the State of
Delaware. The Member shall execute and file amendments to the
Certificate whenever required by the Act.
(b) The Member shall execute and file such forms or
certificates and may take any and all other actions as may be
reasonably necessary to perfect and maintain the status of Lear Tech
under the laws of any other states or jurisdictions in which Lear Tech
engages in business.
(c) The initial registered agent for service of process on
Lear Tech in the State of Delaware, and the address of such registered
agent, shall be the agent for service of process set forth in the
Certificate. The Member may change the registered agent and appoint
successor registered agents.
(d) Upon the dissolution and completion of winding up of Lear
Tech, the Member (or, in the event the Member no longer exists, the
person responsible for winding up and dissolution of Lear Tech pursuant
to Article IV hereof) shall promptly execute and file a certificate of
cancellation of the Certificate in accordance with the Act and such
other documents as may be required by the laws of any other states or
jurisdictions in which Lear Tech has registered to transact business or
otherwise filed articles.
1.8 Reservation of Other Business Opportunities. No business
opportunities other than those actually exploited by Lear Tech shall be deemed
the property of Lear Tech, and the Member may engage in or possess an interest
in any other business venture, independently or with others, of any nature or
description, even if such venture or opportunity is in direct competition with
the business of Lear Tech; and Lear Tech shall have no rights by virtue hereof
in or to such other business ventures, or to the income or profits derived
therefrom.
ARTICLE II
MANAGEMENT AND MEMBERSHIP
2.1 Management of Lear Tech. The business and affairs of Lear Tech
shall be managed under the direction and by the approval of the Member. The
Member shall have all power and authority to manage, and direct the management
of, the business and affairs of, and to make all decisions to be made by Lear
Tech. Approval by, or on behalf of Lear Tech, consent of or action taken by the
Member shall constitute approval or action by Lear Tech. Any Person dealing with
Lear Tech shall be entitled to rely on a certificate or any writing signed by
the Member as the duly authorized action of Lear Tech. The Member has the power
and authority to bind Lear Tech.
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2.2 Written Consent. Any action requiring the vote, consent, approval
or action of the Member may be taken by a consent in writing, setting forth the
action so taken, by the Member.
2.3 Books and Records. The Member shall keep proper and usual books and
records pertaining to the business of Lear Tech. The books and records of Lear
Tech shall be kept at the principal office of Lear Tech or at such other places,
within or without the State of Delaware, as the Member shall from time to time
determine.
2.4 Resignation. Subject to Section 4.1, the Member may resign from
Lear Tech.
2.5 Limited Liability.
(a) Except as otherwise provided by the Act, the debts,
obligations and liabilities of Lear Tech, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of Lear Tech, and the Member shall not be obligated
personally for any such debt, obligation or liability of Lear Tech
solely by reason of being a member of Lear Tech.
(b) To the extent that at law or in equity, a party shall have
duties (including fiduciary duties) and liabilities to Lear Tech, such
duties and liabilities may be restricted by provisions of this
Agreement. The Member shall not be liable to Lear Tech for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by the Member in good faith on behalf of Lear Tech and in a
manner reasonably believed to be within the scope of authority
conferred on the Member by this Agreement.
(c) The Member shall be fully protected in relying in good
faith upon the records of Lear Tech and upon such information,
opinions, reports or statements presented to Lear Tech by any person as
to the matters the Member reasonably believes are within such other
person's professional or expert competence and who has been selected
with reasonable care by or on behalf of Lear Tech, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses or net cash flow or any
other facts pertinent to the existence and amount of assets from which
distributions to the Member might properly be paid.
2.6 Indemnification.
(a) Lear Tech shall indemnify and hold harmless the Member and
each of its respective affiliates, officers, directors, shareholders,
agents or employees (the "Parties") from and against any loss, expense,
damage or injury suffered or sustained by the Parties (or any of them)
by reason of any acts, omissions or alleged acts or omissions arising
out of its or their activities on behalf of Lear Tech or in furtherance
of the interests of Lear Tech, including, but not limited to, any
judgment, award, settlement, reasonable attorney's fees and other costs
or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided that the acts,
omissions or alleged acts or omissions upon which such actual or
threatened action, proceeding or claim is based were not
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performed or omitted fraudulently or in bad faith or as a result of
gross negligence or willful misconduct by any such Party; and provided
that such Party reasonably believed that the acts, omissions, or
alleged acts or omissions upon which such actual or threatened action,
proceeding or claim is based were in the best interests of Lear Tech.
Such indemnification shall be made only to the extent of the assets of
Lear Tech.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Party (or any of them) in
defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by Lear Tech prior to the final disposition
of such claim, demand, action, suit or proceeding upon receipt by Lear
Tech of an undertaking by or on behalf of the Party (or any of them) to
repay such amount if it shall be determined that the Party is not
entitled to be indemnified as authorized in this Section 2.6 hereof.
2.7 Transfer of Interest. The Member may transfer or assign all or a
portion of its interest in Lear Tech. Upon a transfer of the Member's entire
interest in Lear Tech, such transferee or assignee shall become the "Member" for
all purposes of this Agreement. Upon a transfer or assignment of less than the
Member's entire interest Lear Tech, the Member and such transferee or assignee
shall amend this Agreement to reflect such transfer or assignment, or if the
terms of such an amendment shall not be agreed upon, the Member may elect to
dissolve Lear Tech in its sole discretion.
ARTICLE III
FISCAL MATTERS
3.1 Deposits. All funds of Lear Tech may be deposited in an account or
accounts in such banks, trust companies or other depositories as the Member may
select.
3.2 Fiscal Year. The fiscal year of ▇▇▇▇ Tech shall begin on the first
day of January and end on the last day of December each year, unless otherwise
determined by the Member.
3.3 Agreements, Consents, Checks, Etc. All agreements, consents,
checks, drafts or other orders for the payment of money, and all notes or other
evidences of indebtedness issued in the name of Lear Tech shall be signed by the
Member or those persons authorized from time to time by the Member.
3.4 Transactions with the Member. Except as provided in the Act, the
Member may lend money to, borrow money from, act as surety, guarantor or
endorser for, guarantee or assume one or more obligations of, provide collateral
for, and transact other business with Lear Tech and has the same rights and
obligations with respect to any such matter as a person who is not the Member.
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3.5 Contribution.
(a) The Member shall make the contribution described for that
Member on Exhibit A (the "Initial Contribution"). The value of the
Initial Contribution shall be as set forth on Exhibit A.
(b) In addition to the Initial Contribution, the Member may
make additional contributions. Except to the extent of any outstanding
commitment of the Member to make a contribution, the Member shall not
be obligated to make any additional contributions. The Member shall
adjust the contribution reflected on Exhibit A at any time when the
Member makes or promises to make a contribution to Lear Tech.
(c) To the fullest extent permitted by the Act, the Member may
revoke and extinguish any obligation to make any contribution hereunder
by adjusting the contribution reflected on Exhibit A so as to subtract
and remove any portion of the total contribution reflected thereon
attributable to the contribution obligation being extinguished.
3.6 Distributions. The Company may make distributions as determined by
the Member from time to time in its sole discretion; provided, however, that no
distribution shall be declared and paid unless, after the distribution is made,
the assets of Lear Tech are in excess of the liabilities of Lear Tech and such
distribution does not violate the Act or other applicable law. The Member may,
at its sole discretion, elect to receive a distribution from assets other than
cash.
ARTICLE IV
LIQUIDATION
4.1 Liquidating Events. Lear Tech shall dissolve and commence winding
up and liquidation only upon the first to occur of any of the following
("Liquidation Events"):
(a) The resignation of the Member or any other event that
causes the last remaining member of Lear Tech to cease to be a member
of Lear Tech, unless the business of the Lear Tech is continued in a
manner permitted by the Act; or
(b) The entry of a decree of judicial dissolution pursuant to
Section 18-802 of the Act.
4.2 Winding Up. Upon the occurrence of a Liquidating Event, Lear Tech
shall continue solely for the purpose of winding up its affairs in an orderly
manner, liquidating its assets and satisfying the claims of its creditors and
Member. The Member shall not take any action which is inconsistent with, or not
necessary to or appropriate for, the winding up of Lear Tech's business and
affairs. The Member (or in the event that the Member no longer exists, the
person responsible for winding up the Member's business and affairs) shall be
responsible for overseeing the winding up and dissolution of Lear Tech and shall
take full account of Lear Tech's liabilities. The property of Lear Tech shall be
liquidated as promptly as is consistent with obtaining the fair value thereof,
and the proceeds therefrom, to the extent sufficient, shall be applied and
distributed, subject to any
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reasonable reserves maintained for contingent, conditional or unmatured
obligations of Lear Tech, in the following order:
(a) first, to the satisfaction (whether by payment or the
making of reasonable provision for payment thereof) of all of Lear
Tech's debts and liabilities to creditors; and
(b) the balance, if any, to the Member.
4.3 Member's Bankruptcy. The Member shall not cease to be the Member
solely as a result of the occurrence of any of the following and upon the
occurrence of any such event, the business of Lear Tech shall continue without
dissolution:
(a) the Member makes an assignment for the benefit of
creditors;
(b) the Member files a voluntary petition in bankruptcy;
(c) the Member is adjudged a bankrupt or insolvent, or has
entered against him an order of relief, in any bankruptcy or insolvency
proceeding;
(d) the Member files a petition or answer seeking for himself
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation;
(e) the Member files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against
him in any proceeding of this nature;
(f) the Member seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the member or of
all or any substantial part of his properties;
(g) any proceeding against the Member seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any statute, law or regulation is not dismissed;
or
(h) appointment of a trustee, receiver or liquidator of the
Member.
ARTICLE V
MISCELLANEOUS
5.1 Amendments. This Agreement may be altered, amended or repealed, or
a new Agreement may be adopted, upon the consent of the Member.
5.2 Binding Effect. Except as otherwise provided in this Agreement,
every covenant, term and provision of this Agreement shall be binding upon and
inure to the benefit of the Member and its respective heirs, legatees, legal
representatives, successors, transferees and assigns.
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5.3 Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforced by any creditor of Lear Tech or Member.
5.4 Construction. The Member shall have the full power and authority to
construe and interpret this Agreement.
5.5 Headings. Section and other headings contained in this Agreement
are for reference purposes only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
5.6 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement.
5.7 Variation of Pronouns. All pronouns and any variations thereof
shall be deemed to refer to masculine, feminine or neuter, singular or plural,
as the identity of the person or persons may require.
5.8 Governing Law. The laws of the State of Delaware shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the Member, without regard to the
principles of conflicts of laws.
[signature page follows]
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IN WITNESS WHEREOF, the Member has executed this Agreement as of the
day first above set forth.
LEAR TECHNOLOGY CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and
General Counsel
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EXHIBIT A
Capital Contributions of the Member
Initial Contribution See Schedule A
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SCHEDULE A
INITIAL CONTRIBUTION OF LEAR TECHNOLOGY CORPORATION:
ISG Novi $126,292,313
N. American Tech $ 26,950,884
Grand Rapids Plant $ 45,002,288
▇▇▇▇▇▇▇▇ Plant $ 34,111,713
Auburn Hills Plant $ 18,541,000
------------
Total Contribution $250,898,198
============
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of December 15, 1998 (this "Amendment").
to the
Limited Liability Company Agreement of ▇▇▇▇ Technologies, LLC, a
Delaware
limited partnership (the "LLC"), dated as of December 31, 1998 (as amended,
supplemented or otherwise modified from time to time, the "LLC Agreement"), by
▇▇▇▇ Corporation, a
Delaware corporation (the "Member").
W I T N E S E T H
WHEREAS, in connection with a December, 1998 corporate reorganization,
Lear Technology Corporation formed the LLC and transferred its operating assets
thereto; and
WHEREAS, in connection with the same December, 1998 corporate
reorganization, Lear Technology Corporation was merged with and into ▇▇▇▇
Corporation resulting in ▇▇▇▇ Corporation being the sole member of the LLC;
NOW THEREFORE, the Member hereby agrees as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
LLC Agreement and used herein shall have the meanings given to them in the LLC
Agreement.
2. Amendments to the LLC Agreement. The first page of the LLC Agreement
is hereby amended by deleting the words "Lear Technology Corporation" preceding
the words "(the "Member")" which appears in the third line of the introductory
paragraph and replacing such words with "▇▇▇▇ Corporation."
3. Effectiveness. This Amendment shall become effective as of
December 31, 1998.
4. Governing Law. This Amendment shall be governed by the laws of the
State of Delaware.
5. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of the Member and its respective heirs, legatees, legal
representatives, successor, transferees and assigns.
IN WITNESS WHEREOF, the Member has executed this Amendment as of the
day first above set forth.
▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and
General Counsel