Exhibit 3.12
LIMITED LIABILITY COMPANY AGREEMENT
OF
TEMPUR WORLD, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of Tempur
World, LLC, a Delaware limited liability company (the "Company"), dated as of
December 29, 2003, is made by Tempur-Pedic International Inc., a Delaware
corporation (the "Member").
RECITALS
WHEREAS, the Company originally was formed as a corporation
under the name Tempur-World, Inc. under the laws of the State of Delaware,
pursuant to a Certificate of Incorporation filed with the Secretary of State of
the State of Delaware on December 16, 1999 ("TWI");
WHEREAS, the Company filed the Certificate of Conversion and
the Certificate of Formation with the Secretary of State of Delaware on the
Effective Date;
NOW, THEREFORE, the Member, as sole member of the Company,
hereby declares the following to be the Limited Liability Company Agreement of
the Company as of the date hereof:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.01. Definitions. Unless the context otherwise
requires, the following terms shall have the following meanings for the purposes
of this Agreement:
"Act" means the Delaware Limited Liability Company Act, 6
Del C. (S)(S) 18-101, et seq., as amended from time to time (or any
corresponding provisions of succeeding law).
"Certificate of Conversion" means the Certificate of
Conversion filed with the Secretary of State of the State of Delaware on the
Effective Date to convert TWI into a limited liability company pursuant to
ss.266 of the Delaware General Corporation Law.
"Certificate of Formation" means the Certificate of Formation
filed with the Secretary of State of the State of Delaware on the Effective Date
to form the Company pursuant to the Act, as amended, modified, supplemented, or
restated from time to time.
"Effective Date" shall have the meaning set forth in Section
2.02.
"Interest" means the ownership interest in the Company at any
time, including the right of the Member to any and all benefits to which the
Member may be entitled as provided
in this Agreement, together with the obligations of the Member to comply with
all the terms and provisions of this Agreement. Such ownership interest shall be
uncertificated as of the date hereof but may be certificated in the future if
the Member so elects.
"Managers" means P. Andrews McLane, Jeffrey S. Barber, Tully
M. Friedman, Christopher A. Masto, Robert B. Trussell, Jr. and Francis A. Doyle,
collectively acting in their capacity as Managers of the Company.
"Person" has the meaning set forth in the Act.
Section 1.02. Interpretation. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine, and neuter forms. All references herein to Articles,
Sections, and Exhibits shall be deemed to be references to Articles and Sections
of, and Exhibits to, this Agreement unless the context shall otherwise require.
The words "include", "includes", and "including" shall be deemed to be followed
by the phrase "without limitation." As used herein, references to any agreement,
contract or document shall include all amendments, supplements and modifications
thereto.
ARTICLE II
THE COMPANY
Section 2.01. Name. The name of the Company shall be as set
forth in the Preamble hereof. All business of the Company shall be conducted
under such name and title to all property, real, personal, or mixed, tangible or
intangible, owned by the Company shall be held in such name. Notwithstanding the
preceding sentence, the Member may change the name of the Company or adopt such
trade or fictitious names as it may determine.
Section 2.02. Term. The term of the Company commenced on the
date of filing of the Certificate in the Office of the Secretary of State of the
State of Delaware (the "Effective Date"). The term of the Company shall continue
until terminated as provided in Article VII.
Section 2.03. Principal Place of Business. The principal place
of business of the Company shall be located at 1713 Jaggie Fox Way, Lexington,
Kentucky 40511. The Member may establish other offices at other locations.
Section 2.04. Agent for Service of Process. The registered office of the Company
in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801. The
name and address of the registered agent of the Company for service of process
of the Company in the State of Delaware is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware 19801. Section 2.05. Purposes of the
Company. The Company has been organized to engage in any lawful act or activity
for which a Delaware limited liability company may be formed.
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ARTICLE III
LIMITATION ON LIABILITY
Section 3.01. Limitation on Liability. The liability of the
Member shall be limited to its Interest in the Company, and the Member shall not
have any personal liability to contribute money to, or in respect of, the
liabilities or the obligations of the Company, except as set forth in the Act.
ARTICLE IV
DISTRIBUTIONS; INCOME TAX TREATMENT
Section 4.01. Distributions. Except as otherwise provided in
the Act, distributions may be made to the Member at such times and in such
amounts as the Member shall determine.
Section 4.02. Income Tax Treatment. The Company shall be
treated as an entity separate from the Member for federal, state and local
income tax purposes.
ARTICLE V
BOOKS AND RECORDS
Section 5.01. Books and Records. The Member shall keep or
cause to be kept complete and accurate books of account and records that shall
reflect all transactions and other matters and include all documents and other
materials with respect to the Company's business that are usually entered into
and maintained by Persons engaged in similar businesses. All Company financial
statements shall be accurate in all material respects, shall fairly present the
financial position of the Company and the results of its operations, and shall
be prepared in accordance with generally accepted accounting principles,
subject, in the case of quarterly statements, to year-end adjustments. The books
of the Company shall at all times be maintained at the principal office of the
Company or at such other location as the Member decides.
ARTICLE VI
MANAGEMENT OF THE COMPANY
Section 6.01. Business Management.
(a) The business and affairs of the Company shall be managed
exclusively by the Managers. The Managers shall, acting in their sole
discretion, direct, manage, and control the business of the Company to the best
of their ability and shall have full and complete authority, power and
discretion to make any and all decisions and to do any and all things which they
shall deem to be necessary, appropriate, or convenient to accomplish the
business and objectives of the Company.
(b) No Member (except one who may also be a Manager) shall
participate in or have any control over the Company business, except as required
by law or as provided by this Agreement.
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Section 6.02. Certain Powers of the Managers.
(a) General. Without limitation of any other rights and powers
granted to them, the Managers shall have the right on behalf of the Company, in
their sole discretion and upon such terms and conditions as they shall deem
proper, to:
(i) borrow money on the general credit of the Company for
use in the Company business and to secure such borrowings with
any assets of the Company;
(ii) purchase any and all real and personal property
necessary or appropriate, as determined by the Managers in
their discretion, in connection with carrying out the purposes
of the Company, and finance and refinance such purchase, in
whole or in part, by giving the seller or any other Person a
security interest in the property so purchased;
(iii) make reasonable and necessary capital expenditures
and improvements with respect to the real and personal
property and other assets of the Company and take all action
reasonably necessary in connection with the maintenance,
operation and management thereof;
(iv) employ or otherwise retain such Persons (including
without limitation such managers, engineers, accountants,
lawyers, and other experts) as may be necessary, convenient,
or incidental to the accomplishment of the purposes of the
Company;
(v) enter into any contract or agreement between the
Company and any Manager or any affiliate; (vi) purchase
liability and other insurance to protect the Company's
property and business; (vii) hold and own any Company real or
personal properties in the name of the Company;
(viii) invest any Company funds temporarily (by way of
example but not limitation) in time deposits, short-term
governmental obligations, commercial paper or other
investments;
(ix) execute on behalf of the Company all instruments and
documents, including, without limitation, drafts, notes and
other negotiable instruments, mortgages or deeds of trusts,
security agreements, financing statements, documents providing
for the acquisition, mortgage or disposition of the Company's
property, assignments, bills of sale, leases, Company
agreements, and any other instruments or documents necessary,
in the opinion of the Managers, to the business of the
Company; and
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(x) to do and perform all other acts as may be necessary
or appropriate to the conduct of the Company's business.
(b) Officers. The Managers may appoint, remove, and replace as
the case may be, in their sole discretion, one or more individuals to act as
officers of the Company (the "Officers"), and authorize such Officers to act in
such capacity on behalf of the Managers and the Company. The Officers shall have
such power and authority as are customarily delegated to persons holding
equivalent titles in a Delaware corporation except as such duties shall be
limited or expanded by action of the Managers. The following individuals are
hereby appointed initial Officers of the Company:
Title Name
President and Chief Executive Officer Robert B. Trussell, Jr.
Sr. Vice President, Chief Financial
Officer, Treasurer and Secretary Dale E. Williams
Senior Vice President David Fogg
Executive Vice President H. Thomas Bryant
Executive Vice President David Montgomery
Corporate Controller, Chief Accounting
Officer, Vice President and
Assistant Secretary Jeffrey B. Johnson
Assistant Secretary and
Assistant Treasurer William H. Poche
Assistant Treasurer Charles W. Tauchert
(c) Authority to Bind. Unless authorized to do so by this
Agreement, no Member of the Company (acting in the capacity of a Member) shall
have any power or authority to bind the Company in any way, to pledge its credit
or to render it liable for any purpose. Only the Managers and the Officers shall
have the power and authority to bind the Company.
(d) Authorized Signatories. The Managers and the Officers
shall be authorized to execute and deliver all checks, agreements, certificates,
instruments or other documents requisite to carrying out the intentions and
purposes of this Agreement and of the Company in the name and on behalf of the
Company. Any Officer (other than the executing Officer) shall have the authority
to attest to all such actions.
(e) Reliance. Every agreement, instrument, certificate or
other document executed by a Manager or Officer on behalf of the Company shall
be conclusive evidence in favor of every Person relying thereon or claiming
thereunder that, at the time of delivery thereof: (i) the Company was in
existence; (ii) this Agreement had not been terminated or cancelled or
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amended in any manner so as to restrict such authority; and (iii) the execution
and delivery of such agreement, instrument, certificate or other document were
duly authorized under this Agreement. Any Person dealing with the Company may
rely conclusively on the power and authority of a Manager or Officer as set
forth in this Agreement.
Section 6.03. Devotion of Time; Expense Reimbursement. The
Managers shall devote to the affairs of the Company such time as they may deem
necessary for the proper performance of their duties. The Managers shall be
entitled to charge the Company and to be reimbursed by the Company for all third
party out-of-pocket costs or expenses reasonably incurred by such Managers in
connection with Company business.
Section 6.04. Liability; Indemnification. The Managers shall
have no liability to the Company or to any Member for any loss suffered by the
Company which arises out of any action or inaction of such Manager if such
Manager, in good faith, determined that such course of conduct was in the best
interest of the Company and such course of conduct did not constitute gross
negligence or willful misconduct of such Manager. The Company shall indemnify a
Manager (out of Company assets only) to the fullest extent permitted by Delaware
law from any losses, expenses, judgments, liabilities and amounts paid in
settlement of any claims sustained by them in connection with the Company,
provided that the same were not the result of gross negligence or willful
misconduct on the part of such Manager. Such indemnification shall survive the
resignation, removal, or termination of any such Person as a Manager or Member
of the Company or as such an affiliate regardless of any reason or basis
therefor. As part of the right of indemnification under this Section 6.04, any
expenses incurred in the defense, settlement, or disposition of any action, suit
or other proceeding and any appeal therefrom shall be paid from time to time by
the Company in advance of the final disposition thereof upon receipt of an
undertaking by the indemnified Person to repay to the Company the amounts so
paid if it is ultimately determined that the Company is not required to provide
such an indemnity under this Section 6.04 or otherwise. Such advancement of
expenses shall be made by the Company promptly following its receipt of a
request therefor by the indemnified Person and of the foregoing undertaking.
ARTICLE VII
DISSOLUTION AND TERMINATION
Section 7.01. Dissolution. The Company shall be dissolved and
its business wound up upon the decision made at any time by the Member to
dissolve the Company, or upon the occurrence of any event of dissolution under
the Act.
Section 7.02. Liquidation. Upon dissolution, the Company's
business shall be liquidated in an orderly manner. The Member shall wind up the
affairs of the Company pursuant to this Agreement and in accordance with the
Act, including, without limitation, Section 18-804 thereof.
Section 7.03. Distribution of Property. If in the discretion
of the Member it becomes necessary to make a distribution of Company property in
kind in connection with the liquidation of the Company, such property shall be
transferred and conveyed to the Member.
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ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments. This Agreement may be modified or
amended only by the Member in writing.
Section 8.02. Benefits of Agreement. This Agreement shall not
confer any rights or remedies upon, and none of the provisions of this Agreement
shall be enforceable by, any person or entity apart from the Member and its
respective successors and permitted assigns.
Section 8.03. Integration. This Agreement constitutes the
entire agreement pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements in connection therewith. No covenant,
representation, or condition not expressed in this Agreement shall affect, or be
effective to interpret, change, or restrict, the express provisions of this
Agreement.
Section 8.04. Headings. The titles of Articles and Sections of
this Agreement are for convenience only and shall not be interpreted to limit or
amplify the provisions of this Agreement. Section 8.05. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute one and
the same instrument.
Section 8.06. Severability. Each provision of this Agreement
shall be considered separable and if for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement that are valid.
Section 8.07. Applicable Law. This Agreement shall be
construed in accordance with, and governed by, the laws of the State of
Delaware, without regard to its conflict of law principles.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
TEMPUR WORLD, INC. effective as of the date first above written.
TEMPUR WORLD, INC.
By: /s/ William H. Poche
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Name: William H. Poche
Title: Assistant Treasurer and
Assistant Secretary