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Exhibit 3.38
LIMITED LIABILITY COMPANY AGREEMENT
OF
USA NETWORKS PARTNER LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") is made
effective as of the 5th day of February, 1998, by and between USA NETWORKS
PARTNER, INC., a Delaware corporation ("Member 1"), USA NETWORKS HOLDINGS, INC.,
a Delaware corporation ("Member 2" and together with Member 1, the "Members"),
and USA NETWORKS PARTNER LLC, a Delaware limited liability company, and shall be
binding upon such other individuals and members as may be added pursuant to the
terms of this Agreement.
1. Formation Of The Company. By execution of this Agreement, the
Members ratify and confirm the action of Brian C. Mulligan, as their duly
authorized agent in connection with the filing of a certificate of formation
(the "Certificate") with the Secretary of the State of the State of Delaware for
the purpose of forming USA Networks Partner LLC (the "Company"), a limited
liability company formed under the Delaware Limited Liability Company Act, 6
Del. C. Section 18-101, et seq. (the "Act").
2. Name Of The Company. The name of the company to be stated in the
Certificate and the limited liability company governed by this Agreement shall
be "USA Networks Partner LLC".
3. Purpose. This Company is formed for the object and purpose of,
and the nature of the business to be conducted and promoted by the Company is,
engaging in any lawful act or activity for which limited liability companies may
be formed under the Act and engaging in any and all activities necessary or
incidental to the foregoing.
4. Registered Office; Registered Agent. The registered office of
the Company in the State of Delaware is located at Corporation Trust Center,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801 and the
registered agent of the Company at such address is The Corporation Trust
Company.
5. Units. A member's interests in the Company ("Units") shall for
all purposes be personal property. No holder of Units or member shall have any
interest in specific Company assets or property, including assets or property
contributed to the Company by such member as a part of any capital contribution.
The Units are securities governed by Article 8 of the Uniform Commercial Code as
in effect in the State of New York.
6. Capital Contributions By The Members. In consideration of the
issuance of ninety nine (99) Units in the Company to Member 1, Member I shall
hereafter cause the contribution to the Company of 99% of the Acquired
Partnership Interest (as defined in the Investment Agreement dated as of October
19, 1997, as amended and restated as of December 18,1997, among Universal
Studios, Inc., for itself and on behalf of certain of its subsidiaries, HSN,
Inc., Home Shopping Network, Inc., and Liberty Media Corporation, for itself and
on behalf of certain of its subsidiaries). In consideration of the issuance of
one (1) Unit in the Company to Member 2, Member 2 shall hereafter cause the
contribution to the Company of 1% of the Acquired Partnership Interest. Except
for the foregoing consideration, the Members shall not be obligated to make
capital contributions to the Company and all Units issued to the Members shall
be nonassessable.
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7. Capital Accounts. A separate account shall be maintained for
each member and such capital accounts shall be maintained in accordance with the
provisions of Section 704 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Treasury Regulations promulgated thereunder.
8. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated among the members in proportion to the number of Units
held by each member. It is the intent of the members that each member's
distributive share of income, gain, loss, deduction, or credit (or item thereof
shall be determined and allocated in accordance with this Paragraph 8 to the
fullest extent permitted by Sections 704(b) and (c) of the Code and the
Treasury Regulations promulgated thereunder.
9. Distributions. Distributions shall be made to the members at the
times and in the aggregate amounts determined by the Members. Such distributions
shall be allocated among the members in proportion to the number of Units held
by each member.
10. Appointment and Removal of Manager. At any time, and from time
to time, the member or members holding a majority of the Units in the Company
may elect one or more individuals or entities to manage the Company (the
"Manager"). The Manager shall be responsible for any and all such duties as the
member(s) may choose to confer upon the Manager in this Agreement. By execution
of this Agreement, the Members hereby appoint Melissa Leffler, as initial
Manager of the Company. A Manager (whether an initial or a successor Manager)
shall cease to be a Manager upon the earlier of (i) such Manager's resignation
or (ii) such Manager's removal pursuant to the affirmative vote of the member or
members holding a majority of the Units. Any vacancy in the Manager position,
whether occurring as a result of a Manager resigning or being removed may be
filled by appointment of a successor by the member or members holding a majority
of the Units in accordance with this Paragraph 10. A Manager need not be a
member or resident of the State of Delaware.
11. Management Powers Of The Manager. Except for powers
specifically reserved to the members by this Agreement (if any) or by
non-waivable provisions of applicable law, as provided herein, the Company shall
be managed by the Manager, as authorized agent of the Company. The Manager shall
have the full, exclusive, and absolute right, power, and authority to manage and
control the Company and the property, assets, and business thereof. Subject to
the restrictions specifically contained in this Agreement, the Manager may make
all decisions and take all actions for the Company not otherwise provided for in
this Agreement, including, without limitation, performance of any and all other
acts Manager may deem necessary or appropriate to the Company's business.
12. Officers. The officers of the Company shall be appointed by the
Manager and shall include a President, a Secretary, a Treasurer, and such other
officers as the Manager from time to time may deem proper. Unless the Manager
decides otherwise, all officers so designated shall each have such powers and
duties as generally pertain to their respective corresponding offices in a
corporation incorporated under the Delaware General Corporation Law. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Manager. The Manager or the President may from time to time
appoint such other officers (including one (1) or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers) and such agents, as may be
necessary or desirable for the conduct of the business of the Company. Such
other officers and agents shall have such duties and shall hold their offices
for such terms as shall be prescribed by the Manager or by the President, as the
case may be. Any number of titles may be
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held by the same person. Each officer shall hold office until his or her
successor shall be duly designated and shall qualify or until his or her death,
until he or she shall resign, or until he or she shall have been removed, either
with or without cause, by Manager whenever, in Manager's judgment, the best
interests of the Company will be served thereby. The salaries or other
compensation, if any, of the officers and agents of the Company shall be fixed
by Manager. Any delegation pursuant to this Paragraph 12 may be revoked at any
time by Manager.
13. Limitations on Authority. The authority of Manager over the
conduct of the affairs of the Company shall be subject only to such limitations
as are expressly stated in this Agreement or in the Act.
14. Dissolution. The Company shall dissolve, and its affairs shall
be wound up upon the first to occur of the following: (a) the written consent of
the members, or (b) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
15. Transferability of Interests. A member may not assign in whole
or in part its Units without the consent of all of the other members and
provided that the transferee of such Units shall be bound by the terms of this
Agreement. Notwithstanding the first sentence of this Paragraph 15, any member
may, directly or indirectly, cause the transfer of its Units to USANi LLC or any
of USANi LLC's direct or indirect wholly owned entities (collectively,
"Permitted Transferees"), without the consent of the other members. Upon any
such transfer to a Permitted Transferee, the Permitted Transferee shall be
admitted as a member and shall be bound by the terms of this Agreement. Nothing
herein shall restrict the ability of any member to pledge its Units to secure
indebtedness (including guarantee indebtedness) in respect of that certain
credit agreement among USA Networks, Inc., USANI LLC, the lenders party thereto,
The Chase Manhattan Bank as administrative agent, Bank of America National Trust
& Savings Association and The Bank of New York as Co-Documentation Agents, or
any renewal, extension, replacement or refinancing thereof.
16. Admission of Additional Members. Except as provided in
Paragraph 15, one (1) or more additional members of the Company may be admitted
to the Company with the consent of all of the members.
17. Consents. Any action that may be taken by the members at a
meeting may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by or on behalf of the member or members holding
sufficient Units to authorize or approve such action at such meeting.
18. Amendments. Except as otherwise provided in this Agreement,
this Agreement may be amended only by an affirmative vote of the member or
members holding a majority of the Units.
19. Governing Law. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Delaware.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together, shall constitute one and the same Agreement.
21. Tax Election. The Manager shall have the power to cause the
Company to make all elections required or permitted to be made for income tax
purposes.
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IN WITNESS WHEREOF, the parties hereto have made this Agreement
effective as of the date and year first above written.
USA NETWORKS PARTNER LLC
By: /s/ Melissa Leffler
________________________________
Name: Melissa Leffler
Title: Manager
Members:
USA NETWORKS PARTNER, INC.
By: /s/ Brian C. Mulligan
________________________________
Name: Brian C. Mulligan
Title: Senior Vice President
USA NETWORKS HOLDING, INC.
By: /s/ Brian C. Mulligan
________________________________
Name: Brian C. Mulligan
Title: Senior Vice President