EXHIBIT 3.12
OPERATING AGREEMENT
OF
M.G. DIGITAL, LLC
This Operating Agreement (this "Agreement") is made as of September 23,
2004, by Movie Gallery, Inc., a Delaware corporation (the "Member"), with
reference to the following facts:
A. On September 22, 2004, a Certificate of Conversion of M.G.
Digital, Inc., a Delaware corporation (the "Corporation"), was filed in the
Office of the Delaware Secretary of State for the purpose of converting from a
corporation to a limited liability company.
B. On September 22, 2004, a Certificate of Formation (the
"Certificate") of M.G. Digital, LLC (the "Company") was filed in the Office of
the Delaware Secretary of State.
C. The Member desires to ratify and approve the Certificate,
adopt and approve this Agreement as the operating agreement of the Company, and
otherwise complete the formation of the Company under the Delaware Limited
Liability Company Act (the "Act").
Now, therefore, the Member agrees as follows:
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 Formation. The Member hereby ratifies and approves the
Certificate as the Certificate of Formation of the Company, enters into, adopts,
and approves this Agreement as the Company's operating agreement within the
meaning of the Act, and forms the Company as a limited liability company under
the Act.
1.2 Name. The name of the Company shall be as set forth in the
Certificate, and the business of the Company shall be conducted under such name
or, subject to compliance with applicable law, any other name that the Member
deems appropriate. The Member shall file on the Company's behalf all fictitious
name certificates and similar filings that it considers necessary or advisable.
1.3 Term. The term of this Agreement shall commence on the date
hereof and shall continue unless and until the Company is dissolved as provided
herein.
1.4 Registered Office. The registered office of the Company in the
State of Delaware shall be the registered office initially designated 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.
1.5 Principal Place of Business; Other Offices. The principal
place of business of the Company shall be 000 Xxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxx
00000. The Member may change the
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Company's principal place of business and may establish on the Company's behalf
such additional places of business as it may determine.
1.6 Registered Agent. The Company shall at all times maintain a
registered agent for service of process as required under the Act. The
registered agent of the Company shall be as stated in the Certificate or as
otherwise may be determined from time to time by the Member in accordance with
applicable law.
1.7 Purpose and Business of the Company. The purpose and business
of the Company shall be to engage in any lawful act or activity for which a
limited liability company may be formed under the Act.
ARTICLE II
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions; Loans. Following the execution of this
Agreement, the Member intends to contribute $1,000 to the capital of the
Company. Without creating any rights in any third party, the Member may, but
shall not be required to, make additional contributions to the capital of the
Company from time-to-time. In addition to its capital contributions, the Member
may from time-to-time loan or advance funds to or for the benefit of the
Company.
2.2 Capital Accounts. To the extent desirable, the Company may
establish a capital account for the Member, the opening balance of which shall
equal the sum of any cash and the book value of the Member in all assets
contributed to the Company as provided in Section 2.1. The Company shall
determine and maintain the Member's capital account, if any, in accordance with
Internal Revenue Code Treasury Regulations Section 1.704-1(b)(2)(iv).
ARTICLE III
MEMBER; MANAGEMENT
3.1 Initial Member. The Member is hereby admitted to the Company.
3.2 Management by the Member. The business, property, and affairs
of the Company shall be managed and all powers of the Company shall be exercised
exclusively by or under the direction of the Member, which shall act as the
Manager of the Company. Without limiting the generality of foregoing, the Member
shall have all powers necessary or appropriate to manage and carry out the
purpose, business, property, and affairs of the Company.
3.3 Appointment of Officers. The Member may at any time appoint an
administrative officer and one or more other officers of the Company, which may
include a Chairman, Chief Executive Officer, President, one or more Vice
Presidents, a Secretary, an Assistant Secretary, a Chief Financial Officer, and
Treasurer. All officers shall serve at the pleasure of the Member. No officer
need be a resident of the State of Delaware or citizen of the United States, and
any individual may hold any number of offices. The officers shall exercise such
powers and perform such duties as shall be determined from time to time by the
Member.
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The following individuals are hereby appointed to the offices set forth opposite
their respective names to serve for a term of one year or until their successors
are elected and qualified:
Xxx X. Xxxxxxx President and Chief Executive Officer
S. Page Xxxx Executive Vice President and Secretary
Xxxx X. Xxxx Executive Vice President - Product and Distribution
Xxx X. Xxxxxxxx Senior Vice President and Chief Financial Officer
Xxxxxxxx X. Xxxxx Senior Vice President and Treasurer
Xxxxxxx X. Xxxxxx Senior Vice President and Assistant Secretary
Xxxxxxx X. Xxxxxxxx Senior Vice President and Chief Information Officer
3.4 Removal, Resignation and Filling, of Vacancy of Officers. Any
officer may be removed, either with or without cause, by the Member at any time.
Any officer may resign at any time by giving written notice to the Member. Any
resignation shall take effect at the date of the receipt of that notice or at
any later time specified in that notice, and, unless otherwise specified in that
notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if any, of the
Company under any contract to which the officer is a party. A vacancy in any
office because of death, resignation, removal, disqualification or any other
cause shall be filled by the Member.
3.5 Salaries of Officers. The salaries of all officers and other
employees and agents of the Company, if any, shall be determined by the Member.
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions of Distributable Cash. Subject to any
restrictions under applicable law, cash on hand of the Company which the Member
deems available for distribution shall be distributed to the Member at such
times and in such amounts as the Member may determine.
ARTICLE V
TRANSFER AND ASSIGNMENT OF MEMBERSHIP INTEREST
5.1 Transfer and Assignment of Membership Interest. The Member
shall be entitled to transfer, assign, convey, sell, encumber or alienate all or
any part of its membership interest in the Company.
ARTICLE VI
ACCOUNTING, RECORDS, AND REPORTING
6.1 Books and Records. The books and records of the Company shall
be kept in accordance with the accounting method followed by the Member for
federal income tax purposes. The Company shall maintain at its registered office
all of the following:
(a) true and full information regarding the status of the
business and financial condition of the Company;
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(b) promptly after becoming available, a copy of the
Company's federal, state and local income tax returns for each year;
(c) a current list of the name and last known business,
residence or mailing address of each member and manager;
(d) a copy of this Agreement, the Certificate and all
amendments thereto, together with executed copies of any written powers of
attorney pursuant to which this Agreement, the Certificate and all amendments
thereto have been executed; and
(e) true and full information regarding the amount of
cash and a description and statement of the agreed value of any other property
or services contributed by each member which each member has agreed to
contribute in the future, and the date on which each became a member.
6.2 Filings. The Member on the Company's behalf shall cause the
income tax returns for the Company to be prepared and timely filed with the
appropriate authorities. The Member on the Company's behalf also shall cause to
be prepared and timely filed with appropriate federal and state regulatory and
administrative bodies amendments to, or restatements of, the Certificate and all
reports required to be filed by the Company with those entities under the Act or
other applicable laws, rules, and regulations.
6.3 Bank Accounts. The Member on the Company's behalf shall
maintain the funds of the Company in one or more separate bank accounts in the
name of the Company.
ARTICLE VII
DISSOLUTION AND WINDING UP
7.1 Conditions of Dissolution. The Company shall dissolve upon the
written determination of the Member at any time to dissolve the Company.
7.2 Winding Up. Upon the dissolution of the Company as provided in
Section 7.1, the Company 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. The Member shall be responsible for overseeing the winding up
and liquidation of Company, shall take full account of the Company's liabilities
and assets, shall either cause its assets to be distributed to the Member, or
sold, and, if sold, shall cause the proceeds therefrom, to the extent sufficient
therefor, to be applied and distributed as provided in Section 7.3.
7.3 Order of Payment of Liabilities Upon Dissolution. After
determining that all the known debts and liabilities of the Company in the
process of winding up have been paid or adequately provided for, the remaining
assets shall be distributed to the Member. Such liquidating distribution shall
be made not later than the end of the fiscal year in which the Company is
liquidated, or, if later, within 90 days after the date of such liquidation.
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7.4 Certificate of Cancellation. Upon the completion of the
winding up of the affairs of the Company, the Member on the Company's behalf
shall prepare, sign, and file in the Office of, and on a form prescribed by, the
Delaware Secretary of State, a certificate of cancellation.
ARTICLE VIII
MISCELLANEOUS
8.1 Complete Agreement. The Certificate and this Agreement
constitute the complete and exclusive statement of the Member's agreement with
respect to the subject matter thereof.
8.2 Binding Effect. This Agreement will be binding upon and inure
to the benefit of the Member and its successors and assigns. 8.3 Parties in
Interest. Except as expressly provided in the Act, nothing in this Agreement
shall confer any rights or remedies under or by reason of this Agreement on any
persons other than the Member and its respective successors and assigns, nor
shall anything in this Agreement relieve or discharge the obligation or
liability of any third person to any party to this Agreement or grant to any
third person any right of subrogation or action over or against any party to
this Agreement.
8.4 Headings; Definitions. All headings herein are inserted only
for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement. Unless
otherwise defined herein, all terms used in this Agreement which are defined in
the Act shall have the meanings set forth in the Act.
8.5 Amendments. The Certificate and this Agreement may be amended
at any time by the Member.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date written above.
Movie Gallery, Inc.
By:
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Its:
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