Exhibit 3.18
FIFTH AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT
OF
REDBOX AUTOMATED RETAIL, LLC
dated June 5, 2013
CONTENTS
| Page | ||||||||
1. | Organization of the Company | 1 | ||||||
| 1.1 | Name | 1 | ||||||
| 1.2 | Certificate of Formation | 1 | ||||||
| 1.3 | Registered Agent | 2 | ||||||
2. | Definitions; Rules of Construction | 2 | ||||||
3. | Purpose | 2 | ||||||
4. | Principal Office | 2 | ||||||
5. | The Member | 2 | ||||||
6. | Management of the Company | 3 | ||||||
| 6.1 | Manager | 3 | ||||||
| 6.2 | Appointment and Removal of Manager | 3 | ||||||
| 6.3 | Authority of Manager | 3 | ||||||
| 6.4 | Limitation on Authority of Manager | 3 | ||||||
| 6.5 | Officers | 3 | ||||||
| 6.6 | Execution of Company Documents | 4 | ||||||
7. | Capital Contributions | 4 | ||||||
8. | Distributions; Allocations of Income and Loss | 4 | ||||||
9. | Books and Records | 4 | ||||||
10. | Company Interests | 4 | ||||||
11. | Assignments of Company Interest | 4 | ||||||
12. | Withdrawal | 5 | ||||||
13. | Dissolution | 5 | ||||||
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| Page | ||||||||
14. | Winding Up | 5 | ||||||
| 14.1 | Responsibility for Winding Up | 5 | ||||||
| 14.2 | Distribution of Assets upon Winding Up | 5 | ||||||
15. | Limitation on Liability | 5 | ||||||
16. | Indemnification | 5 | ||||||
17. | Reliance by Third Parties | 6 | ||||||
18. | Amendments | 6 | ||||||
19. | Governing Law | 6 | ||||||
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FIFTH AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT
OF
REDBOX AUTOMATED RETAIL, LLC
This Fifth Amended and Restated Limited Liability Company Agreement of Redbox Automated Retail, LLC, a Delaware limited liability company (the “Company”) (this “Agreement”), dated as of June 5, 2013, is between the Company and Coinstar, Inc., a Delaware corporation (“Coinstar”).
Recitals
A. WHEREAS, Coinstar owns 100% of the interests of the Company;
B. WHEREAS, the Fourth Amended and Restated Limited Liability Company Agreement was entered into in 2009 by and among the Company, Coinstar and Sesame Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Coinstar (f/k/a Sesame Holdings, Inc., a Delaware corporation and wholly owned subsidiary of Coinstar ) (“Sesame”) (the “Prior Agreement”);
C. WHEREAS, Sesame no longer owns any interests of the Company and is therefore no longer a member of the Company; and
D. WHEREAS, Coinstar wishes to modify certain provisions of the Prior Agreement and to amend and restate in its entirety the Prior Agreement, with the agreed-upon amendments, and such restated agreement reads as set forth herein, now therefore, be it
E. RESOLVED, in consideration of the mutual covenants and agreements contained herein, the Company and Coinstar agree as follows:
Agreement
| 1. | Organization of the Company |
| 1.1 | Name |
The name of the Company is Redbox Automated Retail, LLC or such other name as the Member (as defined below) may from time to time hereafter designate.
| 1.2 | Certificate of Formation |
The term of the Company commenced upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware on November 16, 2004, and shall be perpetual unless earlier terminated and dissolved pursuant to Section 12.
| 1.3 | Registered Agent |
The registered office of the Company in the State of Delaware shall be at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The registered agent of the Company to accept service of process is the Corporation Trust Company. The registered office and registered agent of the Company may be changed by the Member from time to time by filing an amendment to the Certificate of Formation in accordance with the Delaware Act.
| 2. | Definitions; Rules of Construction |
In addition to terms otherwise defined herein, the following terms are used herein as defined below:
“Agreement” means this Fifth Amended and Restated Limited Liability Company Agreement as originally executed and as amended or restated from time to time.
“Delaware Act” means the Delaware Limited Liability Company Act, and any successor statute, as amended from time to time.
“Manager” means the Manager designated in Section 6.
“Member” means the Member identified in Section 5.
Words used herein, regardless of the number and gender used, shall be deemed and construed to include any other number, singular or plural, and other gender, masculine, feminine or neuter, as the context requires, and, as used herein, unless the context clearly requires otherwise, the words “hereof,” “herein” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provisions hereof.
| 3. | Purpose |
The purpose of the Company shall be to engage in any lawful business that may be engaged in by a limited liability company organized under the Delaware Act, as such business activities may be determined by the Manager from time to time.
| 4. | Principal Office |
The principal office of the Company and such additional offices as the Member may establish, shall be located at such place or places inside or outside the State of Delaware as the Manager may designate from time to time.
| 5. | The Member |
The sole Member is Coinstar, Inc., a Delaware corporation.
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| 6. | Management of the Company |
| 6.1 | Manager |
The Manager of the Company shall be Coinstar, Inc., a Delaware corporation.
| 6.2 | Appointment and Removal of Manager |
The Member may elect one or more persons to serve as Manager. The Member may remove any manager at any time with or without cause.
| 6.3 | Authority of Manager |
The Company shall be managed by the Manager, which shall have the sole and exclusive right to manage the business and affairs of the Company and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Company.
| 6.4 | Limitation on Authority of Manager |
The Manager shall not have the authority to perform any act in contravention of this Agreement.
| 6.5 | Officers |
(a) The Manager may, from time to time, designate one or more persons to be officers of the Company until his or her successor shall be duly designated and shall qualify, or until his or her death, resignation or removal as provided in this Agreement. Any officer so designated has such authority and shall perform such duties as the Manager may, from time to time, delegate to them. The Manager may assign titles to particular officers, and, unless the Manager decides otherwise, 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 specific delegation of authority and duties made to such officer by the Managers pursuant to this Section 6.5. Any officer of the Company may be removed as such, with or without cause, by the Manager whenever in its judgment the best interests of the Company will be served thereby. Any Officer may hold any number of offices. No officer need be a Member, a Delaware resident or a United States citizen. Designation of a person as an officer of the Company shall not of itself create any contract rights and such officers shall be employees at will, unless otherwise expressly provided by written contracts between such persons and the Company.
(b) Any officer of the Company may resign as such at any time upon written notice to the Company. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time is specified therein, at the time of its receipt by the Manager. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.
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(c) Any vacancy occurring in any office of the Company may be filled by the Manager.
| 6.6 | Execution of Company Documents |
When the taking of such action has been authorized by the Manager, any officer of the Company or any other person specifically authorized by the Manager may execute any contract or other agreement or document on behalf of the Company and may execute and file on behalf of the Company with the Secretary of State of the State of Delaware any certificates of amendment to the Certificate of Formation, one or more restated certificates of formation and certificates of merger or consolidation and, upon the dissolution and completion of winding up of the Company, a certificate of cancellation canceling the Certificate of Formation.
| 7. | Capital Contributions |
The Member shall make capital contributions at such times and in such amounts as shall be determined by the Member.
| 8. | Distributions; Allocations of Income and Loss |
Distributions of cash or other assets of the Company to the Member shall be made at such times and in such amounts as the Manager may determine. All distributions and allocations of profits and losses shall be made to the Member.
| 9. | Books and Records |
The Manager shall maintain records and accounts of all operations and expenditures of the Company in such manner as it deems appropriate in compliance with the Delaware Act.
| 10. | Company Interests |
Of the 9,000,000 Class A Interests the Company had authorized for issuance as of February 26, 2009, 8,589,789 Class A Interests have been issued and are outstanding, are fully-paid and are not subject to further assessment, are held by the Member, and represent 100% of the issued and outstanding interests of the Company as of the date of this Agreement. The Class A Interests represent the sole class of outstanding interests of the Company as of the date of this Agreement.
| 11. | Assignments of Company Interest |
The Member’s interests in the Company shall be transferable in whole or in part without the consent of any other person, and the assignee shall be admitted as a Member and admitted to all the rights of the transferring Member upon execution of a counterpart to this Agreement and upon the books and records of the Company being updated to reflect the transfer of the transferring Member’s Company interests to the new Member.
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| 12. | Withdrawal |
The withdrawal of the Member shall result in the dissolution of the Company pursuant to Section 12.
| 13. | Dissolution |
Subject to the provisions of Section 12, the Company shall be dissolved and its affairs wound up and terminated upon the determination of the Member to dissolve the Company.
| 14. | Winding Up |
| 14.1 | Responsibility for Winding Up |
Upon dissolution of the Company, the Manager may wind up the Company’s affairs; however, any competent court, upon cause shown, may wind up the Company’s affairs upon application of a legal representative or assignee of the Member, and in connection therewith may appoint a liquidating trustee.
| 14.2 | Distribution of Assets upon Winding Up |
Upon the winding up of the Company, the assets shall be distributed as follows: (a) to creditors, including the Member should it be a creditor, in satisfaction of liabilities of the Company other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to the Member; and (b) the remainder, if any, to the Member.
| 15. | Limitation on Liability |
The debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Member and the Manager of the Company shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or Manager.
| 16. | Indemnification |
To the fullest extent not prohibited by law, the Company shall indemnify and hold harmless the Member and the Manager from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Member or the Manager may be involved, or threatened to be involved, as a party or otherwise, arising out of or incidental to any business of the Company
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transacted or occurring while the Member was a Member or the Manager was the Manager, as the case may be, regardless of whether the Member or the Manager continues to be a Member or the Manager of the Company at the time any such liability or expense is paid or incurred.
| 17. | Reliance by Third Parties |
This Agreement is entered into between the Company and the Member for the exclusive benefit of the Company, its Member, and their successors and assigns. Specifically (but not by way of limitation), this Agreement is not intended for the benefit of any creditor of the Company or any other person. Except to the extent provided by applicable statute, and then only to that extent, no such creditor or third party shall have any rights under this Agreement or under any other agreement between the Company and the Member, either with respect to any contribution to the Company or otherwise.
| 18. | Amendments |
This Agreement may be amended only upon the written consent of the Member.
| 19. | Governing Law |
This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
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IN WITNESS WHEREOF, the Company and the Member have executed this Fifth Amended and Restated Limited Liability Company Agreement as of the date first herein written above.
| COMPANY: | ||
| REDBOX AUTOMATED RETAIL, LLC | ||
| By: | Coinstar, Inc., its Manager | |
/s/ Donald R. Rench | ||
| By: Donald R. Rench | ||
| Title: Chief Legal Officer, General Counsel and Corporate Secretary | ||
| MEMBER: | ||
| COINSTAR, INC. | ||
/s/ Donald R. Rench | ||
| By: Donald R. Rench | ||
| Title: Chief Legal Officer, General Counsel and Corporate Secretary | ||