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EXHIBIT 3.3
TRANSCORE, LP
AGREEMENT OF LIMITED PARTNERSHIP
This partnership
agreement of TransCore, LP, a Delaware limited
partnership, is entered into effective as
of the 10 day of September, 2001, by
and among TransCore Partners, Inc. (f/k/a
AMGT Corporation), a Delaware
Corporation, as the limited partner
Partner, and TLP Holdings, LLC, a Delaware
limited liability company, as the General
Partner.
BACKGROUND:
The parties
desire to form a limited partnership for the purposes set forth
herein, and to set forth herein their
rights and obligations with respect to
such limited partnership.
NOW, THEREFORE,
intending to be legally bound hereby, the parties hereto
agree as follows:
SECTION 1
DEFINED TERMS; OPERATION OF PARTNERSHIP
1.1 DEFINED TERMS. When used in this
Agreement, the following capitalized
terms shall have the meanings set forth
below:
"ACT" means the Delaware Revised Uniform Limited Partnership
Act.
"AFFILIATE" means, with respect to any Person, (i) any Person
directly
or indirectly controlling, controlled by,
or under common control with such
Person, and (ii) any officer, director,
general partner, or manager of any
Person described in clause (i) of this
sentence. For purposes of this
definition, "controls," "is controlled by,"
or "is under common control with"
shall mean the possession, direct or
indirect, of the power to direct or cause
the direction of the management and
policies of a Person, whether through the
ownership of voting securities, by
contract, or otherwise.
"AGREEMENT" means this partnership agreement, as the same may
be
amended from time to time.
"BANKRUPTCY" means, with respect to any Person, (i) the filing of
any
petition or answer by such Person seeking
to adjudicate it a bankrupt or
insolvent, or seeking for itself any
liquidation, winding up, reorganization,
arrangement, adjustment, protection,
relief, or composition of such Person or
such Person's debts under any law relating
to bankruptcy, insolvency, or
reorganization or relief of debtors, or
seeking, consenting to, or acquiescing
in the entry of an order for relief or the
appointment of a receiver, trustee,
custodian, or other similar official for
such Person for any substantial part of
its property, or (ii) without the consent
or acquiescence of such Person, the
entering of an order for relief or
approving a petition for relief or
reorganization or any other petition
seeking any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution, or other
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similar relief under any bankruptcy,
liquidation, dissolution, or other similar
statute, law, or regulation, or the filing
of any such petition against such
Person which petition shall not be
dismissed within ninety (90) days, or,
without the consent or acquiescence of such
Person, the entering of an order
appointing a trustee, custodian, receiver,
or liquidator of such Person of all
or any substantial part of the property of
such Person which order shall not be
dismissed within sixty (60) days.
"CAPITAL CONTRIBUTION" means the amount of money and the fair
market
value of any property contributed to the
Partnership by a Partner (net of any
liabilities to which such property is
subject or that are assumed by the
Partnership in connection with such
contribution).
"CERTIFICATE" means the certificate of limited partnership for
the
Partnership, and any amendments
thereto.
"CODE" means the Internal Revenue Code of 1986, as amended.
"GENERAL PARTNER" means the Person designated as general partner
in
Exhibit "A" attached to this Agreement, and
any Person subsequently admitted as
a general partner in accordance with the
terms of this Agreement.
"INCAPACITY" means (a) with respect to a natural Person, the
Bankruptcy, death or determination of
incompetency or insanity of such Person
and (b) with respect to any other Person,
the Bankruptcy, liquidation or
dissolution of such Person.
"INDEMNIFIED PARTY" means the General Partner and any member,
manager,
officer, director, shareholder, employee,
or agent of the General Partner.
"INTEREST" means an ownership interest in the Partnership,
including
all of the rights and obligations in
connection therewith under this Agreement
and the Act.
"LIMITED PARTNERS" means the Person designated as the limited
partner
in Exhibit "A" attached to this Agreement,
and any Person subsequently admitted
as a limited partner in accordance with the
terms of this Agreement.
"LIQUIDATOR" means a Person chosen by the holders of a majority of
the
Percentage Interests of the Limited
Partners to supervise the liquidation of the
Partnership if there is no General Partner
at the time of such liquidation.
"NET DISTRIBUTABLE PROCEEDS" means gross cash or property received
by
the Partnership from all sources other than
Capital Contributions, including
reductions in Reserves from prior periods,
reduced by the portion used (i) to
pay Partnership expenses, (ii) to make
capital expenditures, including for the
acquisition of any additional or
replacement property, and (iii) to fund
Reserves.
"PARTNERS" means the General Partner and the Limited Partner, and
any
Person subsequently admitted as a partner
in accordance with the terms of this
Agreement.
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"PARTNERSHIP" means the limited partnership formed and operated
pursuant to the terms of this
Agreement.
"PERCENTAGE INTEREST" means the percentage determined in
accordance
with Section 2.3 of this Agreement.
"PERSON" means any individual or any partnership, corporation,
trust,
limited liability company or other legal
entity.
"REGULATIONS" means the income tax regulations promulgated under
the
Code, as such regulations may be amended
from time to time.
"RESERVES" means amounts set aside to pay future costs or
expenses
that are anticipated to exceed cash
available to pay such costs or expenses when
due, as determined in the sole discretion
of the General Partner.
1.2 FORMATION; NAME. The Partnership
was formed by the filing of the
Certificate. The Partners hereby agree to
operate the Partnership as a limited
partnership under the Act. The Partnership
shall be operated under the name
"TransCore, LP" or such other name as the
General Partner shall determine from
time to time. The General Partner shall
file such other certificates and
documents as are necessary to qualify the
Partnership to conduct business in any
jurisdiction in which the Partnership
conducts business. A copy of the
Certificate shall be provided to any
Partner on request.
1.3 REGISTERED AGENT AND OFFICE;
PRINCIPAL OFFICE. The registered agent
and office of the Partnership required
under the Act shall be as designated in
the Certificate, and may be changed by the
General Partner in accordance with
the Act. The principal business office of
the Partnership shall be located at
8158 Adams Drive, Liberty Centre, Building
200, Hummelstown, PA 17036, or such
other address as shall be designated by the
General Partner.
1.4 PURPOSE. The purpose and business
of the Partnership is to engage in
any lawful act or activity for which
limited partnerships may be organized under
the Act, including without limitation, to
directly and indirectly conduct
business activities that further the legal
and economic interests of the
Partners. The Partnership is authorized to
do any and all acts and things
necessary, appropriate, advisable,
incidental to, or convenient for the
furtherance and accomplishment of its
purposes, and for the protection and
benefit of the Partnership.
1.5 TERM. The term of the Partnership
commenced on the date of filing of
the Certificate (which Certificate was
filed along with applicable certificates
of conversion to convert TransCore, Inc., a
Delaware corporation, to the
Partnership), and the Partnership shall
continue until the Partnership is
terminated in accordance with this
Agreement.
1.6 TITLE TO PROPERTY. All real and
personal property owned by the
Partnership shall be owned by the
Partnership as an entity and no Partner shall
have any ownership interest in such
property in the Partner's individual name or
right, and each Partner's Interest
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shall be personal property for all
purposes. The Partnership shall hold all of
its real and personal property in the name
of the Partnership and not in the
name of any Partner.
1.7 WAIVER OF PARTITION. No Partner
shall either directly or indirectly
take any action to require partition or
appraisement of the Partnership or of
any of its assets or properties or cause
the sale of any Partnership property,
and notwithstanding any provisions of
applicable law to the contrary, each
Partner hereby irrevocably waives any and
all right to maintain any action for
partition or to compel any sale with
respect to such Partner's Interest, or with
respect to any assets or properties of the
Partnership, except as expressly
provided in this Agreement.
SECTION 2
CAPITAL CONTRIBUTIONS; INTERESTS
2.1 CAPITAL CONTRIBUTIONS. All Capital
Contributions shall be made to the
Partnership in proportion to the Partners'
Percentage Interests. The Capital
Contributions of the Partners are set forth
in Exhibit "A" attached hereto.
2.2 ADDITIONAL CAPITAL CONTRIBUTIONS
AND LOANS. No Partner shall be
obligated to make any additional Capital
Contributions or loans to the
Partnership.
2.3 PERCENTAGE INTERESTS. Each Partner
shall have the Percentage Interest
in the Partnership set forth next to such
Partner's name in Exhibit "A" attached
hereto.
2.4 NO INTEREST. No interest shall be
paid on any Capital Contributions of
any Partner.
SECTION 3
DISTRIBUTIONS
3.1 DISTRIBUTIONS OF NET DISTRIBUTABLE
PROCEEDS. Net Distributable
Proceeds shall be distributed among the
Partners, at such times as shall be
determined by the General Partner, in
accordance with their relative Percentage
Interests.
SECTION 4
FEDERAL INCOME TAX STATUS OF PARTNERSHIP
4.1 ELECTION TO BE TAXED AS
CORPORATION. The Partnership shall file an
election under Regulation Section
301.7701-3 to be treated as an association
taxable as a corporation for federal income
tax purposes.
SECTION 5
MANAGEMENT OF PARTNERSHIP
5.1 GENERAL PROVISIONS CONCERNING
MANAGEMENT. Subject to any express
limitations contained in other provisions
of this Agreement, the General Partner
shall have the exclusive right and
responsibility to manage the business of the
Partnership and is hereby authorized to
take any action of any kind and to do
anything and everything the General
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Partner deems necessary in connection
therewith. The General Partner shall have
all of the rights and powers of a general
partner under the Act. No Limited
Partner shall have any right or power to
take part in the management or control
of the Partnership or its business and
affairs or to act for or bind the
Partnership in any way.
5.2 CONTRACTS WITH AFFILIATES. The
General Partner, on behalf of the
Partnership, may enter into contracts and
agreements for property or services in
the ordinary course of business with any
Partner or any Affiliate of a Partner.
5.3 PARTNERSHIP EXPENSES. All expenses
of the Partnership shall be billed
directly to and be paid by the Partnership.
The General Partner shall be
reimbursed for all expenses incurred by it
for or on behalf of the Partnership.
5.4 MEETINGS AND WRITTEN CONSENTS.
Meetings of the Partners may be called
at any time by the General Partner or by
the holders of a majority of the
Percentage Interests of the Limited
Partners. Any Partner may participate in a
meeting by means of conference telephone or
similar communications equipment by
means of which all Persons participating in
the meeting can hear and speak to
each other at the same time or in sequence,
and participation in a meeting
pursuant to this provision shall constitute
presence at the meeting. Any action
required or permitted to be taken at a
meeting of the Partners may be taken
without a meeting if a consent, in writing,
setting forth the action so taken
shall be signed by the Partners required to
approve such action.
SECTION 6
BOOKS AND RECORDS; TAX AND FINANCIAL MATTERS
6.1 BOOKS AND RECORDS. The Partnership
books and records shall be
maintained at the principal office of the
Partnership. The Partnership books
shall be closed and balanced at the end
of
