DOLPHIN ACQUISITION, LLC AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Exhibit 3.12
DOLPHIN ACQUISITION, LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT
AGREEMENT
This Amended and Restated Limited Liability Company Agreement (this “Agreement”) is enacted as of
October 20, 2006, for Dolphin Acquisition, LLC, a Delaware limited liability company (the
“Company”) by MedAssets Supply Chain Systems, LLC, a Delaware limited liability company (“MSCS” or
the “Member”).
WITNESSETH:
WHEREAS, MedAssets, Inc., (“MedAssets”) as the sole member, formed the Company pursuant to that
certain Certificate of Formation filed with the Secretary of State of the State of Delaware on
January 24, 2006, and that certain Limited Liability Company Agreement, dated as of January 24,
2006, between MedAssets and the Company (the “Original LLC Agreement”) and was at all times until
this date the only member of the Company;
WHEREAS, MedAssets transferred all of its all right, title and interest in the Company pursuant to
the Interest Transfer Agreement, dated as of the date hereof, between MedAssets and MSCS; and
WHEREAS, MSCS, as the new and sole Member of the Company, desires to amend and restate the Original
LLC Agreement in its entirety; in order to, among other things, set forth how the business and
affairs of the Company shall be managed.
NOW, THEREFORE, the undersigned hereby resolves as follows:
1. Name.
(a) The name of the Company is Dolphin Acquisition, LLC. The business of the Company may be
conducted under any other name deemed necessary or desirable by the Member in order to comply with
local law.
(b) The undersigned resolves to form and continue the Company as a limited liability company
pursuant to the provisions of the Act and of this Agreement and resolves that its rights and
liabilities shall be as provided in the Act for members except as provided herein.
2. Business.
The Company is formed for the object and purpose of, and the Company’s business is, to engage in
any and all lawful acts and activities for which limited liability companies may be organized under
the Act and to engage in any and all activities necessary or incidental to the foregoing.
3. Principal Place of Business.
The principal office of the Company shall be located at 000 Xxxxx Xxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000 or such other place as the Member may designate from time to time.
4. Duration.
The Company shall continue in existence perpetually unless the Company is dissolved and its affairs
wound up in accordance with the Act or this Agreement. The Member may terminate this Agreement and
dissolve the Company at any time.
5. Fiscal Year.
The fiscal year of the Company shall begin on January 1 of each year and end on December 31 of that
year, unless such fiscal year is disapproved by the Internal Revenue Service, in which event the
fiscal year shall be as otherwise designated by the Member and approved by the Internal Revenue
Service.
6. Member.
(a) The Member, having an address at 000 Xxxxx Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000,
shall be the sole member of the Company. The Member hereby resolves to operate the Company in
accordance with the terms of this Agreement.
(b) The Member shall have the power to do any and all acts necessary or convenient to or for the
furtherance of the purposes described herein, including, without limitation, all powers, statutory
or otherwise, possessed by members of limited liability companies under the laws of the State of
Delaware.
7. Management.
(a) Board of Directors.
(i) Except for decisions or actions requiring the approval of the Member as provided by
non-waivable provisions of the Act or applicable law, (A) the powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the Company shall be
managed under the direction of the board of directors of the Company (the “Board of Directors” or
the “Board”) and (B) the Board of Directors may make all decisions and take all actions for the
Company as in its sole discretion it deems necessary or appropriate to carry out the purposes for
which the Company is being formed under this Agreement and to further the interests of the Member.
The Board of Directors may be elected (as well as removed or replaced with or without cause) by the
Member. As of the date hereof, the Board of Directors consists of Xxxx X. Xxxxxx and Xxxx Xxxxxxx.
(ii) Regular meetings of the Board of Directors may be held upon at least ten (10) days’ notice to
all representatives of the Board of Directors at such time and place as shall from time to time be
determined by resolution of the Board of Directors. Special meetings of the Board of Directors
shall be called by the Chairman of the Board at the request of any Board representative on not less
than two business days’ notice to the other representatives of the Board of Directors, delivered
personally or
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by facsimile and confirmed by telephone. Notice of a meeting need not be given to any Board
representative who signs a waiver of notice or a consent to holding the meeting or an approval of
the minutes thereof, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such Board representative.
The business transacted at a special meeting will be limited to the purposes stated in the notice
of the meeting unless otherwise approved by all Board representatives. At all properly noticed
meetings of the Board of Directors, the presence of a majority of the Board representatives shall
constitute a quorum for the transaction of business.
(iii) Board representatives may participate in a meeting of the Board of Directors by means of
conference call or any similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
(iv) All decisions to be made and actions to be taken by the Board of Directors shall be determined
by the vote of a majority of the entire Board of Directors.
(v) Any action which may be taken at a meeting of the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed by all of the Board
representatives.
(vi) Representatives of the Board of Directors shall not receive any compensation for their
services to the Company in such capacity. However, Board representatives may be reimbursed by the
Company for reasonable expenses (including travel expenses) that are
incurred by them in the
performance of their duties hereunder (including attendance of meetings of the Board of Directors).
(vii) A majority of the entire Board of Directors may appoint one of the Board representatives to
be Chairman of the Board. The Chairman of the Board shall, at the request of any Board
representative, call Special Meetings of the Board of Directors and shall, if present, preside at
the meetings of the Board of Directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by this Agreement.
(b) Delegation of Authority and Duties.
(i) The initial officers of the Company may be chosen by either the Board of Directors or the
Member. Thereafter, the officers may be elected or removed (with or without cause) by the Member,
the Board of Directors or as otherwise set forth in this Agreement. As of the date hereof, the
officers of the Company are: Xxxx X. Xxxxxx, Chairman and Chief Executive Officer; Xxxx Xxxxxxx,
President; Xxxxxxxx X. Xxxxx, Secretary; Xxxxx Xxxxxxxx, Treasurer; L. Xxxx Xxxx, Vice President of
Business Development.
(ii) The Chief Executive Officer of the Company shall have the authority and duties in the
management of the Company as are normally associated with such office. Subject to the control and
direction of the Board of Directors, the Chief Executive Officer shall have the power to act, in
the name and on behalf of the Company, to do all things reasonably necessary for the performance of
the Company’s day-to-day operations.
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(iii) The President of the Company, if any, shall be responsible for the day-to-day management of
the Company. Subject to the control and direction of the Board of Directors and the Chief Executive
Officer, if any, the President shall have the power to act, in the name and on behalf of the
Company, to do all things reasonably necessary for the performance of the Company’s day-to-day
operations. The President shall keep the Chief Executive Officer fully informed of all developments
relating to the business of the Company. The authority to appoint and remove the Chief Executive
Officer and the President shall be vested in the Board of Directors. The President shall report
directly to the Chief Executive Officer.
(iv) The Chief Executive Officer (or, if none, the President) may appoint and elect (as well as
remove or replace with or without cause), as he deems necessary, Vice Presidents, a Treasurer,
Assistant Treasurers or Chief Financial Officer, a Secretary and Assistant Secretaries of the
Company (collectively, but excluding the Chief Executive Officer and the President, the
“Officers”). The compensation, if any, of the Officers shall be approved by the Board of Directors.
(v) The Vice President, or, if there shall be more than one, the Vice Presidents, shall perform
such duties and may exercise such powers as may be permitted by this Agreement and as may, from
time to time, be assigned to the respective Vice Presidents by the Chief Executive Officer, the
President or the Board of Directors.
(vi) The Secretary or the Secretary’s delegate, shall act as secretary of all meetings of the Board
of Directors, unless otherwise decided by the attendees, and keep the minutes which shall be filed
in the minute books of the Company provided for that purpose; shall see that all notices required
to be given by the Company or the Board of Directors are given and served; shall have charge of the
books, records and papers of the Company relating to its organization and management as a limited
liability company and shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties as from time to time may
be assigned by the Board of Directors, the Chief Executive Officer or the President.
(vii) The Treasurer or Chief Financial Officer shall have charge and custody of, and be responsible
for, all funds, securities and notes of the Company; receive and give receipts for moneys due and
payable to the Company from any sources whatsoever; deposit all moneys due and payable to the
Company from any sources whatsoever; deposit all such moneys in the name of the Company in such
banks, trust companies or other depositaries as shall be selected by the Board of Directors against
proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized
depositaries of the Company signed in such manner as shall be determined by the Board of Directors
and be responsible of the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books to be kept by the Treasurer or under the Treasurer’s direction full
and adequate account of all moneys received or paid by the Treasurer for the account of the
Company; have the right to require from time to time, reports or statements giving such information
as he may desire with respect to any and all financial transactions of the Company from the
Officers or agents transacting the same; render to the Chief Executive Officer, the President or
the Board of Directors whenever the Chief Executive Officer, the President or the Board of
Directors, respectively, shall so require, an account of the financial condition of the Company and
of all transactions as treasurer; exhibit at all reasonable times the books of account and other
records to any of the representatives of the Board of Directors upon the request at the office of
the Company where such books and records are kept; shall be responsible for coordinating the
preparation of all tax returns and other documents required to be
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filed by the Company; and, in general, perform all other duties commonly incident to the office of
treasurer; and shall perform other such duties as from time to time may be assigned thereto by the
Chief Executive Officer, the President or the Board of Directors. The Treasurer shall have no
responsibility for any obligation or duty described above to the extent that the Chief Executive
Officer, the President or the Board of Directors determines that such obligation or duty should be
assigned or delegated to any other person.
(viii) In addition, the Board of Directors may, from time to time as it deems advisable, delegate
to one or more persons (inclusive of any representative of the Board of Directors) such authority
and duties as the Board of Directors is granted under this Agreement, and the Board of Directors
shall assign in writing titles (including, without limitation, Vice President, Assistant Secretary
and Assistant Treasurer) to any such person (each of whom shall also be “Officers” as that term is
used in this Agreement). Unless the Board of Directors decides otherwise, if the title of any
person authorized to act on behalf of the Company under this Section 7(b) is one commonly used for
officers of a business corporation formed under the Delaware General Corporation Law, 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, or
restriction on, authority and duties made pursuant to this Section 7(b). Any number of titles may
be held by the same person. Any delegation pursuant to this Section 7(b) may be revoked at any time
by the Board of Directors.
(ix) Unless authorized to do so by this Agreement, the Chief Executive Officer, the President or
the Board of Directors, no single Board representative or Officer shall have any power or authority
to bind the Company in any way, to pledge its credit, or to render it liable pecuniarily for any
purpose.
(c) Liability of Board Representatives and Officers.
(i) None of the Chief Executive Officer, the President, any Officer or any Board representative
shall be personally liable for the debts, obligations and liabilities of the Company.
(ii) Notwithstanding anything to the contrary in this Agreement and except to the extent required
by the Act and any other applicable law, no Board representative shall be liable to the Company or
the Member for any action taken or omitted to be taken by such Person, provided that such person
did not act in bad faith and such action or omission does not involve the fraud, gross negligence
or willful misconduct of such person.
(d) Indemnification.
(i) The Company shall, to the maximum extent permitted by law, indemnify and hold harmless each
Member, Board representative and Officer and their respective directors, officers, partners,
employees, agents and affiliates (each, an “Indemnitee”) from and against any and all liabilities,
damages, reasonable expenses (including reasonable legal fees and expenses), judgments, amounts
paid in settlement and fines actually and reasonable incurred by such Indemnitee arising out of or
in connection with any threatened, pending or completed claim, demand, action, suit or proceeding,
whether of a civil, criminal, administrative, investigative or other nature, or any appeal thereof,
to which such Indemnitee was or is a party or is threatened to be made a party, by reason of (i)
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any such Indemnitee’s status as a Member, Board representative or Officer, or (ii) any action taken
or omitted to be taken by any such Indemnitee in any capacity referred to in clause (i) of Section
7(a) (including, without limitation, any such action or omission prior to the formation of the
Company or prior to being appointed to such status), relating to this Agreement or the formation,
capitalization, business, affairs or management of, or the property of, the Company; provided,
however, that the Indemnitee did not act in bad faith and the act or omission which is the basis of
such claim, demand, action, suit or proceeding did not involve the fraud, gross negligence or
willful misconduct of such Indemnitee; provided, further, that the Company shall indemnify an
Indemnitee for the defense of any action brought in the name of the Company to procure a judgment
in its favor by a Member only to the extent that such indemnification is permitted by applicable
law (including without limitation the Act).
(ii) To the fullest extent permitted by law, reasonable expenses (including reasonable legal fees
and expenses) incurred in defending any claim, demand, action, suit or proceeding subject to this
Section 7(d) shall be paid or reimbursed periodically by the Company in advance of the final
disposition of such claim, demand, action, suit or proceeding upon receipt of an undertaking (which
need not be secured) by or on behalf of the Indemnitee to repay such amount if it shall be
determined, as permitted by the Company as authorized hereunder.
(iii) The indemnification provided by this Section 7(d) shall be in addition to any other rights to
which an Indemnitee may be entitled, and shall continue as to an Indemnitee who has ceased to serve
in a capacity for which the Indemnitee is entitled to indemnification.
(iv) To the extent commercially reasonable, the Company shall have the right to purchase and
maintain insurance on behalf of the Indemnitees against any liability which may be asserted against
or expense which may be incurred by an Indemnitee in connection with the Company’s activities,
whether or not the company would have the power to indemnify an Indemnitee against such liability
under the provisions of this Agreement; and the cost of premium of any such insurance shall be
borne by the Company. Notwithstanding the foregoing, the Company shall not provide directors’ and
officers’ liability insurance to the Board representatives without the unanimous approval of the
Members.
8. Capital Contributions.
Capital contributions shall be made in cash or in the form of securities or other instruments. The
Member may make such additional capital contributions to the Company as it, in its sole discretion,
may deem necessary or advisable. Upon payment of such initial capital contributions, the interest
of the Member in the Company shall be fully paid and non-assessable.
9. Tax Status.
The Member shall take such steps, if any, as may be necessary to cause the Company to be
disregarded as a separate entity for federal income tax purposes pursuant to Treasury Regulation
301.7701-3 issued by the Internal Revenue Service pursuant to the Internal Revenue Code of 1986, as
amended, or any successor regulation.
10. New Members.
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New members of the Company may be admitted by the Member at any time. In the event of such
admission, this Agreement shall be amended and/or restated, as determined by the Member.
11. Withdrawals.
Subject to the requirements of applicable law, the Member may withdraw all or a portion of its
capital from the Company at any time. Withdrawals may be in cash or in securities or other
instruments held by the Company.
12. Limited Liability of the Member.
The Member in its capacity as a member shall not be liable for any debts, obligations or
liabilities of the Company.
13. Amendments.
The Member may amend this Agreement at any time by written instrument signed by the Member and
filed with the books and records of the Company. Pending any replacement or amendment of this
Agreement, it is intended that the provisions of the Act be controlling as to any matters not set
forth in this Agreement.
14. Miscellaneous.
(a) Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(b) Captions. All captions used in this Agreement are for convenience only and shall not
affect the meaning or construction of any provision hereof.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware.
(d) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the Member and its successors and assigns.
15. Interest Certificates
The interest of the Member in the Company shall be represented by a certificate setting forth the
name of the Company, its state and year of organization and the percentage of the interests in the
Company owned by the Member. The certificate shall be signed by (i) the Chairman of the Board, the
Chief Executive Officer, the President or any Vice President and (ii) the Chief Financial Officer,
the Secretary or Assistant Secretary or the Treasurer or Assistant Treasurer. The certificate shall
be in such form as shall be approved by the Board of Directors.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above written.
| MEDASSETS SUPPLY CHAIN SYSTEMS, LLC |
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| By: | /s/ [ILLEGIBLE] | |||
| Name: | ||||
| Title: | ||||
