AMENDED AND RESTATED OPERATING AGREEMENT THE GUNLOCKE COMPANY L.L.C.
EXHIBIT
3.12
AMENDED
AND RESTATED OPERATING AGREEMENT
THE
GUNLOCKE COMPANY L.L.C.
The undersigned enter into this amended
and restated operating agreement for operation of The Gunlocke Company L.L.C.
(the "Company").
1. Intent of the
Parties. This operating agreement is a contract between the
Member and the Company and is enforceable against any party, which violates its
terms. All Members must sign this operating agreement as a condition
precedent of membership.
2. Office. The
principal office of the Company is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇. The Company may have such other offices, either within or
without the State of Iowa, as the Member may designate or as the business of the
Company may require. The registered office of the Company required by
the Act to be maintained in the State of Iowa shall be, but need not be,
identical with the principal office, and may be changed from time to time by the
Member.
3. Purpose. The
Company is organized to conduct any lawful business allowed by Chapter 490A of
the Code of Iowa (the "Act").
4. Duration of the
Company. The Company filed Articles of Organization with the
Office of the Secretary of State on December 23, 2002 and filed Restated
Articles of Organization with the Office of the Secretary of State on May 28,
2009. The Company shall terminate as provided in the Articles of
Organization.
5. Management
of the Company.
5.1 Managers. The
business and affairs of the Company shall be managed by its Manager or
Managers. Each Manager shall participate in the direction, management
and control of the business of the Company to the best of the Manager's
ability. The Managers may adopt rules and regulations for the conduct
of their meetings and the management of the Company not inconsistent with this
Operating Agreement and the Act.
5.2. Number,
Managers, Tenure and Qualifications. The number of Managers of
the Company shall be three, and the Managers shall be ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The number may be changed by a
written document executed on behalf of the Member, but in no instance shall
there be less than one Manager. Each Manager shall hold office until
his or her successor shall have been elected and qualified. Managers
need not be residents of the State of Iowa or a Member of the
Company.
5.3. Powers of
Managers. Without limiting the generality of Section 5.1, the
Managers shall have power and authority, as a group, on behalf of the
Company:
(a) To acquire
property from any person or entity as the Managers may determine. The
fact that a Member is directly or indirectly affiliated or connected with any
such person or entity shall not prohibit the Managers from dealing with that
person or entity;
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(b) To borrow
money for the Company from banks, other lending institutions, the Member, or
affiliates of the Member on such terms as they deem appropriate, and in
connection therewith, to mortgage, encumber and grant security interests in the
assets of the Company to secure repayment of the borrowed sums (and no such
action shall require a vote of the Member);
(c) To purchase
liability and other insurance to protect the Company's property and
business;
(d) To hold and
own any Company real and/or personal properties in the name of the
Company;
(e) To invest
any Company funds temporarily (by way of example but not limitation) in time
deposits, short-term governmental obligations, commercial paper or other
investments and otherwise conduct or direct the Company's banking
activities;
(f) To sell or
otherwise dispose of assets of the Company, provided that such assets do not
constitute all or substantially all of the assets of the Company;
(g) To
execute on behalf of the Company all instruments and documents, including,
without limitation, checks, drafts, notes and other negotiable instruments,
mortgages or deeds of trust, powers of attorney, security agreements, financing
statements, documents providing for the acquisition, mortgage or disposition of
the Company's property, assignments, bills of sale, leases, partnership
agreements, and any other instruments or documents necessary or appropriate, in
the opinion of the Managers, to the business of the Company;
(h) To employ
accountants, legal counsel, managing agents or other experts to perform services
for the Company and to compensate them from Company funds;
(i) To enter
into any and all other contracts or agreements on behalf of the Company to carry
out the purposes of the Company, with any other person or entity for any
purpose, in such forms as the Managers may approve;
(j) To declare
and pay distributions to the Member; and
(k) To do and
perform all other acts as may be necessary or appropriate to the conduct of the
Company's business, and not inconsistent with applicable law, the Articles of
Organization or this Operating Agreement.
5.4 Standard
of Conduct; No Guarantee. A Manager
shall discharge that manager's duties as a manager in good faith, with the care
an ordinary prudent person in a like position would exercise under similar
circumstances, and in a manner the Manager believes to be in the best interests
of the Company. A Manager does not guarantee the return of the
Member's capital contributions or a profit for the Member from the operations of
the Company.
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5.5 No
Exclusive Duty to Company. A Manager shall not be required to
manage the Company as his or her sole and exclusive function and any Manager may
have other business interests and may engage in other activities in addition to
those relating to the Company. Neither the Company nor any Member
shall have any right, by virtue of this Agreement, to share or participate in
such other investments or activities of the Manager or in the income or proceeds
derived therefrom.
5.6 Liability and Indemnity of
the Managers.
(a) Neither any
Manager nor any of his or her affiliates shall be liable to the Company or any
Member for any act or omission, except to the extent provided in the Company's
Articles of Organization, as amended or restated.
(b) The Company
may indemnify a Manager, officer or affiliate of the Company (each,
an "Indemnitee") against whom a claim is made or who is made a party to any
proceeding, against liability incurred by such Manager, officer or affiliate in
connection with such claim or proceeding to the maximum extent now or hereafter
permitted by the Iowa Limited Liability Company Act, provided that the Company
shall not indemnify an Indemnitee against liability for the
following: (i) the amount of a financial benefit received by the
Indemnitee to which the Indemnitee was not entitled; (ii) an intentional
infliction of harm on the Company or its members; (iii) a violation of Iowa Code
Section 490A.807; or (iv) an intentional violation of criminal
law. The Company may advance any Indemnitee any expenses (including,
without limitation, attorneys' fees and expenses) incurred as a result of any
demand, action, suit or proceeding referred to in this subparagraph (b) provided
that (i) the legal action relates to the performance of duties or services by
the Indemnitee on behalf of the Company; and (ii) the Indemnitee gives a full
recourse promissory note to the Company for the amounts of such advances payable
in the event that the Indemnitee is determined to be not entitled to
indemnification hereunder.
(c)
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(1)
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The
Company shall not indemnify a Manager, officer or affiliate unless
authorized for a specific claim or proceeding after a determination has
been made that indemnification of the Manager, officer or affiliate is
permissible.
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(2) The
determination shall be made by any of the following:
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A.
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If
there are two or more disinterested Managers, by a majority vote of all
the disinterested managers, a majority of whom shall for such purpose
constitute a quorum, or by a majority of the members of a committee of two
or more disinterested managers appointed by such a
vote.
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B. By
special legal counsel:
(i) Selected
in the manner prescribed in paragraph "A."
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(ii)
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If
there are fewer than two disinterested Managers, selected by a majority
vote of the Managers, in which selection Managers who do not qualify as
disinterested directors may
participate.
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C.
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By
the Members, but interests owned by or voted under the control of a
Manager who at the time does not qualify as a disinterested Manager shall
not be voted on the determination.
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(3)
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Authorization
of indemnification shall be made in the same manner as the determination
that indemnification is permissible, except that if there are fewer than
two disinterested Managers or if the determination is made by special
legal counsel, authorization of indemnification shall be made by those
entitled under subparagraph (c)(2)(B)(ii) to select special legal
counsel.
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(d) The
indemnification provided by subparagraph (b) above shall not be deemed to be
exclusive of any other rights to which any Indemnitee may be entitled under any
agreement, as a matter of law, in equity or otherwise, and shall continue as to
an Indemnitee who has ceased to have an official capacity and shall inure to the
benefit of the heirs, successors and administrators of such
Indemnitee.
(e) Any
indemnification pursuant ot this section will be payable only from the assets of
the Company.
5.7 Resignation. Any
Manager of the Company may resign at any time by giving written notice to the
Member. The resignation of any Manager shall take effect upon receipt
of notice thereof or at such later time as shall be specified in such notice;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
5.8
Removal. At
a meeting called expressly for that purpose, all or any lesser number of
Managers may be removed at any time, with or without cause, by a written
document executed on behalf of the Member.
5.9
Vacancies. Any
vacancy occurring for any reason in the number of Managers of the Company may be
filled by the affirmative vote of a majority of the remaining Managers then in
office, provided that if there are no remaining Managers, the vacancy(ies) shall
be filled by written document executed on behalf of the Member. A
Manager elected to fill a vacancy shall be elected for the unexpired term of his
or her predecessor in office and shall hold office until the expiration of such
term and until his or her successor shall be elected and shall qualify or until
his or her earlier death, resignation or removal.
5.10
Salaries. The
salaries and other compensation of the Managers shall be fixed from time to time
by the Managers, subject to the approval of the Member.
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5.11
Officers. The
Managers may appoint themselves or other individuals as officers of the Company,
which may include, but shall not be limited to: (1) president; (2)
one or more vice presidents; (3) secretary; (4) assistant secretary; (5)
treasurer and (6) assistant treasurer. The Managers may delegate a
portion of their day-to-day management responsibilities to any such officers, as
determined by the Managers from time to time, and such officers shall have the
authority to contract for, negotiate on behalf of and otherwise represent the
interests of the Company as so authorized by the Managers. Unless the
Managers decide otherwise, if the title is one commonly used for officers of a
business corporation formed under the Iowa Business Corporation Act, the
assignment of such title shall constitute the delegation to such person of the
authority and duties that are normally associated with that office, subject to
any specific delegation of authority and duties.
6.
Member Capital Interests and Liabilities.
6.1
Capital
Interests. All capital interests in the Company shall belong
to the Member.
6.2
Liabilities. No
Member shall be personally liable for any debts or losses of the Company beyond
its agreed capital contribution.
7.
Banking. All
funds of the Company shall be deposited in its name in such checking account or
accounts as shall be designated by an authorized Manager or the
Member. All withdrawals therefrom are to be made upon written bank
instruments, which must be signed by a Manager or the Member.
8.
Books. The
Company books shall be maintained at the offices of the Member. The
books shall be kept on a calendar or fiscal year basis, as directed by the
Managers.
9.
Voluntary
Termination. If the Company is dissolved, the Member shall
proceed with reasonable promptness to liquidate the Company. The
assets of the Company shall be distributed in the following order:
(a) To pay or
provide for the payment of all Company liabilities to creditors other than the
Member, and liquidating expenses and obligations;
(b) To pay
debts owing to the Member other than for capital and profits;
(c) To pay
debts owing to the Member in respect to capital; and
(d) To pay
debts owing to the Member in respect to profits.
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10. Amendment of Operating
Agreement. This operating agreement may be altered, amended or
repealed and a new operating agreement may be adopted only by a written document
signed on behalf of the Member so providing.
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Allsteel
Inc.
(Sole
Member)
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Dated
as of December 1, 2008
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Vice President and Secretary | |||
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The Gunlocke Company
L.L.C.
(The
Company)
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Dated
as of December 1, 2008
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager | |||
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