EXHIBIT 3.9
LIMITED LIABILITY COMPANY AGREEMENT
OF
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
A DELAWARE LIMITED LIABILITY COMPANY
EFFECTIVE AS OF APRIL 30, 1999
LIMITED LIABILITY COMPANY AGREEMENT
OF
SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (as amended, restated or
otherwise modified, this "Agreement" of SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
(the "LLC") is being executed by SCG HOLDING CORPORATION, a Delaware corporation
(the "Member"), as of this 30th day of April, 1999, 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 creates 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 the
LLC upon its execution of this Agreement.
1.2 LLC Name. The name of the limited liability company formed hereby
shall be "Semiconductor Components Industries, LLC" and all business of the LLC
shall be conducted in such name or such other name as the Member shall
determine. The LLC shall hold all of its property in the name of the LLC and not
in the name of the Member.
1.3 Purpose. The purpose and the business of the LLC shall be to conduct
and transact any and all lawful business for which limited liability companies
may be organized under the Act.
1.4 Powers. The LLC 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 the LLC.
1.5 Principal Place of Business. The principal place of business of the
LLC shall be 0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, or at such
other location as may be designated by the Member from time to time.
1.6 Term. The term of the LLC shall be perpetual unless and until the LLC
is dissolved by the Member or as set forth herein. The existence of the LLC as a
separate legal entity shall continue until the cancellation of the Certificate
of Formation of the LLC (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
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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 the LLC 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 the LLC under the laws of any other
states or jurisdictions in which the LLC engages in business.
(c) The initial registered agent for service of process on the LLC
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 the LLC,
the Member (or, in the event the Member no longer exists, the person
responsible for winding up and dissolution of the LLC 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
the LLC 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 the LLC shall be deemed the property of
the LLC, 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 the LLC; and the LLC 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 LLC. The business and affairs of the LLC shall be
managed under the direction and by the approval of the Member. The Member agrees
to delegate this right and authority to manage and direct the management of the
business and affairs of the LLC and to make all decisions to be made by or on
behalf of the LLC to such managers as are appointed herein (the "Officers" and
each an "Officer"). The Member hereby delegates to the Officers 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 the LLC. Approval by, or on behalf of
the LLC, consent of or action taken by any of the Officers shall constitute
approval or action by the LLC and shall be binding upon the LLC. Any Person
dealing with the LLC shall be entitled to rely on a certificate or any writing
signed by an Officer as the duly authorized action of the LLC.
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2.2 Officers. The Officers of the LLC shall not be required to be Members
of the LLC. Initially, the only Officer shall be the Chief Executive Officer.
Such other Officers as may be deemed necessary may be appointed by the Chief
Executive Officer or the Member and shall have such titles, power, duties and
term as may be prescribed by the Chief Executive Officer or the Member. The
Member may assign titles to particular officers. Unless the Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the General Corporation Law of the State of Delaware,
the assignment of such title shall constitute the delegation to such officer of
the authority and duties that are normally associated with that office, subject
to any restrictions on such authority imposed by the Member. Any number of
offices may be held by the same person.
2.3 Election of Officers and Term of Office. The initial Chief Executive
Officer shall be Xxxx X. Xxxxxxxxx. The Chief Executive Officer shall be elected
from time to time by the Member. Each Officer shall hold office until a
successor shall have been duly elected or appointed and shall have qualified or
until such Officer's death, resignation or removal in the manner provided
hereinafter.
2.4 Removal of Officers. Any Officer may be removed by the Member whenever
in his judgment the best interests of the LLC would be served thereby. The Chief
Executive Officer may remove any Officer appointed by the Chief Executive
Officer.
2.5 Vacancies. Any Officer who dies or resigns or is removed or
disqualified may be replaced by the Member for the unexpired portion of the
replaced Officer's term.
2.6 Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the LLC and shall be generally in charge of its
business and affairs, subject to the control of the Member. The Chief Executive
Officer shall preside at all meetings of the Officers. The Chief Executive
Officer may execute on behalf of the LLC all contracts, agreements, certificates
and other instruments. The Chief Executive Officer shall from time to time
report to the Member all matters within the Chief Executive Officer's knowledge
affecting the LLC which should be brought to the attention of the Member. The
Chief Executive Officer shall vote all shares of stock or other interests in
other entities owned by the LLC, and shall be empowered to execute proxies,
waivers of notice, consents and other instruments in the name of the LLC with
respect to such stock or interest. The Chief Executive Officer shall perform
such other duties as are required by the Member.
2.7 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. Any action requiring the vote, consent, approval
or action of any of the Officers or any group of Officers may be taken by a
consent in writing, setting forth the action to be so taken, by such Officer or
Officers.
2.8 Books and Records. The Chief Executive Officer shall keep, or shall
designate an individual to keep, proper and usual books and records pertaining
to the business of the LLC. The books and records of the LLC shall be kept at
the principal office of the LLC or at such
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other places, within or without the State of Delaware, as the Member shall from
time to time determine.
2.9 Salary. No salary shall be paid to the Member or to any Officer for
its duties set forth hereunder.
2.10 Resignation. Subject to Section 4.1, the Member may resign from the
LLC.
2.11 Limited Liability.
(a) Except as otherwise provided by the Act, the debts, obligations
and liabilities of the LLC, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
LLC, and the Member shall not be obligated personally for any such debt,
obligation or liability of the LLC solely by reason of being a member of
the LLC.
(b) To the extent that at law or in equity, the Member, an Officer
or any other party shall have duties (including fiduciary duties) and
liabilities to the LLC, such duties and liabilities may be restricted by
provisions of this Agreement. None of the Member or any Officer shall be
liable to the LLC (or, in the case of an Officer, to the Member) for any
loss, damage or claim incurred by reason of any act or omission performed
or omitted by the Member or such Officer in good faith on behalf of the
LLC and in a manner reasonably believed to be within the scope of
authority conferred on the Member or such Officer by this Agreement.
(c) The Member and each of the Officers shall be fully protected in
relying in good faith upon the records of the LLC and upon such
information, opinions, reports or statements presented to the LLC by any
person as to the matters the Member or such Officer 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 the LLC,
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.
(d) Any repeal or modification of this Section 2.11 shall not
adversely affect any right or protection of the Member or any Officer
existing prior to such repeal or modification.
2.12 Indemnification.
(a) The LLC shall indemnify and hold harmless the Member, each
Officer and each of their respective affiliates, officers, directors,
shareholders, agents or employees (the "Parties") from and against any
loss, expense, damage or injury suffered or sustained by the Panics (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 the LLC or in
furtherance of the interests of the LLC, including, but not limited to,
any judgment, award, settlement,
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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
of such Party are not found by a court of competent jurisdiction upon
entry of a final judgment to constitute bad faith, gross negligence or
willful misconduct by such Party. Such indemnification shall be made only
to the extent of the assets of the LLC.
(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 the LLC prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the LLC 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 2.12 hereof.
2.13 Transfer of Interest. The Member may transfer or assign all or a
portion of its interest in the LLC. Upon a transfer of the Member's entire
interest in the LLC, 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 the LLC, 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 the LLC in its sole discretion.
2.14 No Tax Election. The Member shall not make an election to have the
Company treated as an association taxable as a corporation for federal income
tax purposes.
ARTICLE III
FISCAL MATTERS
3.1 Deposits. All funds of the LLC shall be deposited in an account or
accounts in such banks, trust companies or other depositories as the Member may
select.
3.2 Financial Records. All financial records shall be maintained and
reported using GAAP, consistently applied.
3.3 Fiscal Year. The fiscal year of the LLC shall begin on the first day
of January each year (except for the first fiscal year of the LLC, which shall
begin on the date of this Agreement) and end on the last day of December each
year (except for the last fiscal year of the LLC, which shall end on the date on
which the LLC is terminated), unless otherwise determined by the Member.
3.4 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 the LLC shall be signed by the
Member or those persons authorized from time to time by the Member.
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3.5 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 the LLC and has the same rights and
obligations with respect to any such matter as a person who is not the Member.
3.6 Contribution.
(a) The Member shall make the contribution of capital described for
that Member on Exhibit A (the "Initial Contribution"). If no time for the
Initial Contribution is specified, the Initial Contribution shall be made
upon the filing of the Certificate with the Secretary of State. The value
of the Initial Contribution shall be as set forth on Exhibit A. No
interest shall accrue on any contribution and the Member shall not have
the right to withdraw or be repaid any contribution except as provided
herein.
(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 the LLC.
3.7 Distributions. The Company may make distributions as determined by the
Member from time to time in accordance with this Agreement; provided, however,
that no distribution shall be declared and paid unless, after the distribution
is made, the assets of the LLC are in excess of the liabilities of the LLC 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. The LLC shall dissolve and commence winding up and
liquidation only upon the first to occur of any of the following ("Liquidation
Events"):
(a) The sale of all or substantially all of the property of the LLC;
(b) The resignation of the Member or any other event that causes the
last remaining member of the LLC to cease to be a member of the LLC,
unless the business of the LLC is continued in a manner permitted by the
Act; or
(c) 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, the LLC 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
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action which is inconsistent with, or not necessary to or appropriate for, the
winding up of the LLC's business and affairs. The Member (or in the event that
the Member is dead or 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 the LLC and shall take full account of the LLC's
liabilities. The property of the LLC 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
reasonable reserves maintained for contingent, conditional or unmatured
obligations of the LLC, in the following order:
(a) first, to the satisfaction (whether by payment or the making of
reasonable provision for payment thereof) of all of the LLC's debts and
liabilities to creditors other than the Member;
(b) second, to the satisfaction (whether by payment or the making of
reasonable provision for payment thereof) of all of the LLC's debts and
liabilities to the Member; and
(c) 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 the LLC 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.
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4.4 Accounting on Liquidation. Upon liquidation, a proper accounting shall
be made by the LLC's accountants of the LLC's assets, liabilities and results of
operations through the last day of the month in which the LLC is terminated.
ARTICLE V
MISCELLANEOUS
5.1 Amendments. This Agreement may be altered, amended or repealed, or a
new Agreement may be adopted, upon the consent written 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.
5.3 Creditors. None of the provisions of this Agreement shall be for the
benefit of or enforced by any creditor of the LLC 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.
SCG HOLDING CORPORATION
By:/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: President
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EXHIBIT A
CAPITAL CONTRIBUTIONS OF MEMBER
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CAPITAL PERCENTAGE
NAME CONTRIBUTION INTEREST
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SCG Holding Corporation $10.00 100%
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TOTAL $10.00 100%
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AMENDMENT TO THE
LIMITED LIABILITY COMPANY AGREEMENT
OF SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
SCG Holding Corporation, being the sole member of Semiconductor
Components Industries, LLC (the "Company"), amended the Limited Liability
Company Agreement of the Company by a written consent dated August 4, 1999 as
follows:
Section 1.4 was amended to add the following immediately before the
period at the end of Section 1.4 thereof:
", and, without limiting the foregoing, shall possess and may
exercise all of the powers that are exercisable under Section 121 and 122
under the Delaware General Corporation Law by a Delaware corporation."
Section 2.13 was amended to add the following at the end of
Section 2.13:
"A Member's interest in the LLC may be evidenced by a certificate
of limited liability company interest issued by the LLC."
