HM COOP LLC (A Delaware Limited Liability Company) Limited Liability Company Agreement Dated as of February 18, 2000
Exhibit 3.12
▇▇ ▇▇▇▇ LLC
(A Delaware Limited Liability Company)
(A Delaware Limited Liability Company)
Dated as of February 18, 2000
OF
▇▇ ▇▇▇▇ LLC
This Limited Liability Company Agreement (this “Agreement”) of ▇▇ ▇▇▇▇ LLC (the “LLC”), dated
as of February 18, 2000, is made by Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P. and HM3
Coinvestors, L.P., as the members of the LLC (the “Members”).
W I T N E S S E T H:
WHEREAS, the Members desire to form a limited liability company under the Delaware Limited
Liability Company Act, as it may be amended from time to time (the “DLLCA”); and
WHEREAS, the Members desire to enter into this Agreement to set forth the Members’ rights and
obligations with respect to the LLC.
NOW, THEREFORE, in consideration of the promises and the covenants and provisions hereinafter
contained, the Members hereby adopt the following:
ARTICLE I
ORGANIZATIONAL AND OTHER MATTERS
SECTION 1.01. Formation; Admission. The LLC has been formed by an authorized person
pursuant to and in accordance with the provisions of the DLLCA. The authorized person has filed, on
behalf of the LLC, a certificate of formation conforming to the DLLCA in the office of the
Secretary of State of Delaware. The term of the LLC began upon such filing and shall continue until
liquidation and termination of the LLC in accordance with this Agreement and the DLLCA.
SECTION 1.02. Name. The name of the LLC shall be ▇▇ ▇▇▇▇ LLC, and the business of the
LLC shall be conducted under such name. The Members may, in their sole discretion, change the name
of the LLC from time to time. In any such event, the Members shall promptly file or caused to be
filed in the office of the Secretary of State of Delaware an amendment to the certificate of
formation reflecting such change of name.
SECTION 1.03. Limited Liability. Except as otherwise provided by the DLLCA, the debts,
obligations and liabilities of the LLC, whether arising in contract, tort or otherwise, shall be
the debts, obligations and liabilities solely of the LLC, and the Members shall not be obligated
personally for any of such debts, obligations or liabilities solely by reason of being a Member.
SECTION 10.4. Registered Office and Agent. The address of the LLC’s registered agent
and its registered office in the State of Delaware is Corporation Trust Company, Corporation Trust
Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The principal place of business of the LLC
shall be located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The Members may change
such registered office, registered agent or principal place of business from time to time. The LLC
may from time to time have such other place or places of business within or outside the State of
Delaware as may be determined by the Members.
SECTION 1.05. Fiscal Year. The fiscal year of the LLC shall end on December 31 of each
calendar year unless, for United States federal income tax purposes, another fiscal year is
required. The LLC shall have the same fiscal year for United States federal income tax purposes and
for accounting purposes.
SECTION 1.06. No State-Law Partnership. The LLC shall not be a partnership or a joint
venture, and no Member shall be a partner or joint venturer of any other Member, for any reason
other than for United States federal income and state tax purposes, and no provision of this
Agreement shall be construed otherwise.
SECTION 1.07. Tax Matters. The LLC shall not be treated as an entity separate from its
owners for United States federal income tax purposes.
ARTICLE II
PURPOSE AND POWERS
SECTION 2.01. Purpose of the LLC. The LLC may carry on any lawful business, purpose or
activity permitted by the DLLCA.
SECTION 2.02. Powers of the LLC. The LLC shall have the power to do any and all acts
reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the
furtherance of the purpose and business described herein and for the protection and benefit of the
LLC.
ARTICLE III
FUNDING CONTRIBUTIONS
Each Member has contributed capital to the LLC, either in cash or non-cash property, in the
amounts respectively set forth opposite its name on Schedule 1. No Member shall be
obligated to make any additional capital contributions to the LLC. For federal tax purposes the
Members agree to treat such capital contributions as contributions in exchange for their respective
membership interests in the Company under Section 721 of the Internal Revenue Code of 1986,
as amended.
Notwithstanding anything in this Agreement to the contrary, no capital called by the LLC or by
the Members shall be deemed an asset of or contribution to the LLC unless and until such capital is
released from custodial or escrow accounts by the Members and is (i) invested by and for the
account of the LLC in stock or other securities that the Members designate as LLC portfolio assets
or (ii) used for LLC expenses or other purposes that the Members expressly authorize.
ARTICLE IV
DISTRIBUTIONS
The Members shall decide whether and in what amounts the proceeds received by the LLC shall be
distributed to the Members. All such proceeds distributed to the Members, if any, shall be
distributed in proportion to the Members’ capital contributions as provided above.
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ARTICLE V
MANAGEMENT OF THE LLC
SECTION 5.01. Management. The management, control and direction of the LLC and its
operations, business and affairs shall be vested exclusively in the Members, which shall have the
right, power and authority to act solely by themselves and without the consent, vote or approval of
any other person, to carry out any and all of the purposes of the LLC and to perform or refrain
from performing any and all acts that the Members may deem necessary, desirable, appropriate or
incidental thereto.
SECTION 5.02. Office. The Members may (i) elect one or more officers of the LLC with
such titles as the Members may deem necessary, appropriate or advisable and (ii) delegate any or
all of its rights, powers and authority to one or more of such officers as the Members may
determine from time to time.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. The LLC shall indemnify any person who was, is, or is threatened to be made a
party to a Proceeding (as hereinafter defined) by reason of the fact that he or she (i) is or was a
Member or officer of the LLC or (ii) while a Member or officer of the LLC, is or was serving at the
request of the LLC 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, to the fullest extent permitted under the DLLCA, as the same now exists or may
hereafter be amended. Such right shall be a contract right and as such shall run to the benefit of
any Member or any officer who is elected and accepts the position of officer of the LLC or elects
to continue to serve as an officer of the LLC while this Article VI is in effect. Any repeal or
amendment of this Article VI shall be prospective only and shall not limit the rights of any such
Member or officer or the obligations of the LLC with respect to any claim arising from or related
to the services of such Member or officer in any of the foregoing capacities prior to any such
repeal or amendment to this Article VI. Such right shall include the right to be reimbursed by the
LLC for expenses incurred in investigating or defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the DLLCA, as the same now exists or may
hereafter be amended. If a claim for indemnification or advancement of expenses hereunder is not
paid in full by the LLC within sixty (60) days after a written claim has been received by the LLC,
the claimant may at any time thereafter bring suit against the LLC to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action that such
indemnification or advancement of costs of defense is not permitted under the DLLCA, but the burden
of proving such defense shall be on the LLC. Neither the failure of the LLC (including its
officers, independent legal counsel, or Members) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of defense to, the
claimant is permissible in the circumstances nor an actual determination by the LLC (including its
officers, independent legal counsel, or Members) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such indemnification or
advancement is not permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the benefit of his or her
heirs, executors, administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right which any person may have or hereafter acquire under any
statute, resolution of the Members, agreement, or otherwise.
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The LLC may additionally indemnify any employee or agent of the LLC to the fullest extent
permitted by law.
As used herein, the term “Proceeding” means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any
appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to
such an action, suit, or proceeding.
ARTICLE VII
TRANSFER OF MEMBERSHIP INTERESTS
Each Member may transfer all or any portion of such Member’s interest in the LLC at any time.
Upon any such assignment, the assignee shall succeed to the rights and obligations of such Member
in respect of its interests in the LLC and shall become a Member of the LLC. Notwithstanding
anything to the contrary contained herein, no such transfer of a Member’s interest in the LLC shall
operate to dissolve the LLC.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
Section 8.01. Dissolution. The LLC shall be dissolved upon the occurrence of any
dissolution event specified in the DLLCA; provided, that notwithstanding the foregoing, the
LLC shall not dissolve upon the occurrence of any of the events described in Section 18-801(50b) of
the DLLCA (including, without limitation, the bankruptcy of a Member).
Section 8.02. Effect of Dissolution. Upon dissolution, the LLC shall cease carrying on
its business but shall not terminate until the winding up of the affairs of the LLC is completed,
the assets of the LLC shall have been distributed as provided below and a certificate of
cancellation of the LLC under the DLLCA has been filed with the Secretary of State of the State of
Delaware.
Section 8.03. Liquidation Upon Dissolution. Upon the dissolution of the LLC, sole and
plenary authority to effectuate the liquidation of the assets of the LLC shall be vested in the
Members, which shall have full power and authority to sell, assign and encumber any and all of the
LLC’s assets and to wind up and liquidate the affairs of the LLC in an orderly and business-like
manner. The proceeds of liquidation of the assets of the LLC distributable upon a dissolution and
winding up of the LLC shall be applied in the following order of priority:
(i) first, to the creditors of the LLC, including creditors who are members, in
the order of priority provided by law, in satisfaction of all liabilities and
obligations of the LLC (of any nature whatsoever, including, without limitation,
fixed or contingent, matured or unmatured, legal or equitable, secured or
unsecured), whether by payment or the making of reasonable provision for payment
thereof; and
(ii) thereafter, in proportion to the Members’ capital contributions as provided
above.
Section 8.04. Winding Up and Certificate of Cancellation . The winding up of the LLC shall be completed when all of its debts, liabilities, and
obligations have been paid and discharged or reasonably adequate provision therefor has been made,
and all of the remaining property and assets of the
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LLC have been distributed to the Members. Upon
the completion of the winding up of the LLC, a certificate of cancellation of the LLC shall be
filed with the Secretary of State of the State of Delaware.
ARTICLE IX
AMENDMENT
These regulations may be amended or modified only by a written instrument executed by the
Members. In addition, the terms or conditions hereof may be waived by a written instrument executed
by the party waiving compliance.
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IN WITNESS WHEREOF, the undersigned Members have entered into this Agreement as of the date
first written above.
| HICKS, MUSE, ▇▇▇▇ & ▇▇▇▇▇ EQUITY FUND III, LP. | ||||||||||
| By: | HM3/GP Partners, L.P., its general partner | |||||||||
| By: | ▇▇▇▇▇, Muse GP Partners III, L.P, | |||||||||
| its general partner | ||||||||||
| By: | ▇▇▇▇▇, Muse Fund III Incorporated, | |||||||||
| its general partner | ||||||||||
| By: | ||||||||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||||
| Title: Vice President, Treasurer & Secretary | ||||||||||
| HM3 COINVESTORS, L.P., | ||||||||||
| By: | ▇▇▇▇▇, ▇▇▇▇ ▇▇ Partners III, LP., its general partner | |||||||||
| By: | ▇▇▇▇▇, Muse Fund III Incorporated, | |||||||||
| its general partner | ||||||||||
| By: | ||||||||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||||
| Title: Vice President, Treasurer & Secretary | ||||||||||
SCHEDULE I
| Members and Addresses | Percent Ownership | |||
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, LP.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
97.383456 | % | ||
HM3 Coinvestors, L.P. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
2.616544 | % | ||
Totals |
100.000000 | % | ||