EXHIBIT 3.5(b)
BYLAWS OF
TABB REALTY LLC
A Single Member Michigan Limited Liability Company
THESE BYLAWS ("BYLAWS") are made and adopted as of October 30, 1999,
with respect to TABB Realty LLC, a Michigan limited liability company (the
"Company"). The sole member of the Company is Plastipak Holdings, Inc., a
Michigan corporation (the "Member"). The Company's manager is William C. Young
(the "Manager").
ARTICLE I
ORGANIZATION
1.1 FORMATION. On or about December 11, 1998, William C. Young
and William P. Young formed the Company pursuant to the Michigan Limited
Liability Company Act, being Act No. 23, Public Acts of 1993, as amended by Act
No. 52, Public Acts of 1997 (the "Act") by the filing of Articles of
Organization ("Articles"). On or about October 1, 1999, the membership interest
then owned by the Mary E. Young and William P. Young Joint Trust U/A/D December
28, 1988, as the transferee and successor in interest to William P. Young, was
liquidated pursuant to a certain Liquidation of Member's Membership Interest
Agreement. On or about October 30, 1999, the William C. Young Revocable Trust
U/A/D December 23, 1988, the transferee and successor in interest to William C.
Young, as the sole remaining member of the Company, transferred its Membership
Interest to Plastipak Holdings, Inc. pursuant to a certain Subscription
Agreement of even date. Therefore, Plastipak Holdings, Inc. has become the sole
Member of the Company and the Company hereby revokes and terminates the
pre-existing Operating Agreement between the original members and does adopt
these Bylaws.
1.2 NAME. The name of the Company is TABB Realty, LLC. The
Company may also conduct its business under one or more assumed names.
1.3 PURPOSES. The purposes of the Company are to acquire, own,
lease, sell, mortgage and otherwise deal with the real property used in or to be
used in the conduct of the Member's businesses, and to engage in all activities
and transactions as may be necessary or desirable in connection with the
achievement of any or all of the foregoing purposes.
1.4 DURATION. The Company shall continue in existence
indefinitely or until the Company shall be sooner dissolved and its affairs
wound up in accordance with the Act or these Bylaws.
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1.5 REGISTERED OFFICE AND RESIDENT AGENT. The "Registered
Office" and "Resident Agent" of the Company shall be as designated in the
initial Articles or any amendment thereof. The Registered Office and/or Resident
Agent may be changed from time to time, in accordance with the Act. If the
Resident Agent shall resign, the Company shall promptly appoint a successor.
1.6 INTENTION FOR COMPANY. TABB Realty, LLC has been formed as
a limited liability company under and pursuant to the Act. The Member
specifically intends and agrees that the Company is a limited liability company
under and pursuant to the Act.
ARTICLE II
DEFINITIONS
2.1 "CAPITAL CONTRIBUTION" shall mean that amount as recorded
on the books and records of the Company as the Member's Capital Account on the
effective date hereof, plus any additional contributions to capital made
thereafter. The Member shall not have the right to withdraw or otherwise dispose
of Capital Contributions except as otherwise specifically provided herein.
2.2 "MEMBERSHIP INTEREST" as to the Member shall mean a one
hundred (100%) percent share of profits, losses and distributions of the
Company.
2.3 "NET CASH FLOW" shall mean all cash receipts from whatever
source, less cash expenditures by the Company to persons other than the Member
in its capacity as Member, and less any cash reserves established by the Member.
2.4 "PROPERTY" shall mean the real and personal property now
owned or hereafter acquired by the Company.
ARTICLE III
CAPITAL, PARTICIPATION IN PROPERTY AND LIABILITY
3.1 MEMBER'S INITIAL CAPITAL CONTRIBUTIONS. The Member has
acquired its Membership Interest from William C. Young and will be credited with
his Capital Account on the effective date hereof.
3.2 COMPANY CAPITAL. The capital of the Company shall be the
Capital Contributions made by the Member.
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3.3 ADDITIONAL COMPANY FUNDS. The Member shall not be required
under these Bylaws to make any additional Capital Contributions to the Company.
3.4 VOLUNTARY MEMBER LOANS. If the Member elects to loan funds
to the Company, such loan(s), together with interest thereon at a commercially
reasonable rate established by the Member shall be repaid prior to any
distributions of Net Cash Flow or other distributions of Company proceeds to the
Member.
3.5 NO THIRD PARTY RIGHTS. Nothing contained in this Article
III is intended for the benefit of any creditor or other person (other than the
Member in its capacity as such) to whom the Company owes any debts, liabilities
or obligations or who otherwise has any claim against the Company, and no third
party shall have any rights by virtue of the provisions of this Article III.
ARTICLE IV
DISTRIBUTION OF CASH AND
ALLOCATIONS OF PROFIT AND LOSS
4.1 MEMBERS' SHARE OF TAX PROFITS AND LOSSES. For accounting
and federal, state and local income tax purposes, the entire net profits and
losses, and other items of income, gain, loss, deduction and credit of the
Company shall be allocated to the Member.
4.2 DISTRIBUTIONS OF NET CASH FLOW. In the event the Member
elects to distribute all or part of the Company's Net Cash Flow, such
distribution shall be made solely to the Manager.
4.3 PROCEEDS OF SALE OR REFINANCING. The proceeds resulting
from any sale of all or substantially all of the Company's assets including, but
not limited to, the Property, whether as a result of dissolution or otherwise,
shall be distributed and applied in the following priority:
(a) To the payment of any debts and liabilities of the
Company;
(b) To the establishment of any reserves which the Manager
deems necessary to provide for any debts or liabilities of the Company.
At the expiration of a reasonable period of time as the Manager deems
advisable, the balance of such reserve funds remaining after payment of
any such debts, liabilities or contingencies, shall be distributed in
the manner provided in subparagraph (c) below;
(c) To the Member.
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ARTICLE V
MANAGEMENT
5.1 MANAGEMENT OF BUSINESS. The Company shall be managed by
William C. Young. William C. Young shall serve in the capacity of Manager until
his death, resignation or removal. The Manager may be removed at any time by the
vote (including consent resolutions to such effect) of the Member. An additional
or successor Manager(s) may be appointed by the vote (including consent
resolutions to such effect) of the Member.
5.2 GENERAL POWERS OF MANAGER. Except as required by the Act
or in these Bylaws, the Manager shall have the exclusive right to manage the
business of the Company, and shall be the only party with any control over
Company business, or the power to bind the Company. The Manager is authorized
and empowered to carry out and implement any and all purposes of the Company and
to manage and control and make all decisions affecting the business and assets
of the Company in the Manager's full and exclusive discretion. The Manager is
authorized to execute and deliver, for and on behalf of the Company, all
agreements, documents and instruments to take any actions on behalf of the
Company. Without limiting the generality of the foregoing, the Manager has the
power to:
(a) purchase, lease or otherwise acquire real or personal
property;
(b) sell, convey, mortgage, grant a security interest in,
pledge, lease, exchange or otherwise dispose or encumber any real or
personal property;
(c) open one or more depository accounts and make deposits
into and checks and withdrawals against such accounts;
(d) borrow money and incur liabilities or other obligations;
(e) engage employees and agents, define their respective
duties, and establish their compensation or remuneration;
(f) establish pension plans, trusts, profit sharing plans and
other benefit and incentive plans for employees and agents of the
Company (if any);
(g) obtain insurance covering the business of the Company, its
property and the lives and well being of its employees and agents(if
any);
(h) commence prosecution or defend any proceeding in the
Company's name;
(i) participate with others in partnerships, joint ventures
and other associations and strategic alliances; and
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(j) the appointment of officers for this company with the
powers designated herein.
5.3 LIMITATION ON POWERS. Notwithstanding anything to the
contrary contained in the Act or these Bylaws, only the Member shall have the
right to authorize the following matters:
(a) the dissolution of the Company pursuant to Section 6.1 of
these Bylaws;
(b) the merger of the Company with one or more other limited
liability companies or other entities; and
(c) an amendment to the Articles.
5.4 STANDARD OF CARE; LIABILITY. The Manager shall discharge
its duties described in this Article V in good faith, with the care an
ordinarily prudent person in a like position would exercise under similar
circumstances, and in a manner it reasonably believes to be in the best
interests of the Company. The Manager shall not be liable for any monetary
damages to the Company for any breach of such duties which arise out of any act
or omission performed or omitted by the Manager in good faith on behalf of the
Company except for:
(a) receipt of a financial benefit to which the Manager is not
entitled;
(b) consenting to a distribution in violation of these Bylaws
or the Act; or
(c) a knowing violation of the law.
5.5 INDEMNIFICATION OF MANAGER. The Company shall, to the
fullest extent permitted by law, indemnify and hold harmless the Manager, its
successors, heirs and assigns, from and against any and all losses, liabilities,
obligations, claims, causes of action, demands, costs, and expenses (including
reasonable attorney fees) incurred by the Manager with respect to any act or
omission performed by the Manager within the scope of the authority conferred
upon it by these Bylaws, provided that the Manager acted in good faith and in a
manner it reasonably believed to be in, or not opposed to, the best interests of
the Company.
5.6 COMPENSATION OF MANAGER. The Manager shall not receive any
compensation for rendering services to the Company in its capacity described
herein. All reasonable expenses incurred by the Manager in connection with the
operation of the Company's business shall be reimbursed in full by the Company
upon presentation of evidence of the payment of such expense.
5.7 NATURE OF MEMBER'S INTEREST. The Membership Interest in
the Company shall be personal property for all purposes. All property owned by
the Company, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Company
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as an entity. The Member shall not have, nor be deemed to have, individual
ownership of such property.
5.8 BANK ACCOUNTS. The bank account or accounts of the Company
shall be maintained in the banking institution or institutions selected by the
Manager. All funds of the Company shall be deposited into account(s) of the
Company and any and all checks or other instruments used to draw funds of the
Company shall require the signature of the Manager or an officer of the Company.
5.9 ACTIVITY OF THE MANAGER. The Manager shall devote such
time and effort as may be reasonably required to conduct the Company's business
and perform its responsibilities under Section 5.2 above. The Manager shall not
in any way be prohibited from or restricted in engaging or owning an interest in
any other business venture of any kind, nature, character or description
whatsoever, whether independently or with others, directly or indirectly,
including but not limited to any venture which may be competitive with the
business of the Company, and the Company shall not have any rights through the
Company created by these Bylaws in and to such ventures or the income or profits
derived therefrom.
5.10 OFFICERS. The Manager may from time to time appoint such
officers of the Company as he deems appropriate. If and when such appointment(s)
have occurred, such persons shall be vested with the title and authorities as
described below:
(a) Each officer of the Company shall hold office until
his/her resignation or removal. Any officer appointed by the Manager
may be removed by the Manager with or without cause at any time. Any
officer may resign by written notice to the Company. The resignation is
effective upon its receipt by the Company or at a subsequent time
specified in the notice of resignation. Any vacancy occurring in any
office of the Company may be filled or left vacant in the Manager's
discretion.
(b) PRESIDENT. The President shall be appointed by the
Manager. The President shall, in general, perform all duties incident
to the office of President and such other duties as may be prescribed
by the Manager.
(c) SECRETARY. The Secretary shall preserve in the books of
the Company true minutes of the proceedings of all meetings. He/she
shall safely keep in his/her custody the seal of the Company, if any,
and shall have authority to affix the same to all instruments where its
use is required or permitted. He/she shall give all notices required by
the Act, these Bylaws or resolution. He/she shall perform such other
duties as may be delegated to him/her by the Manager or the President.
(d) TREASURER. The Treasurer shall have custody of all
corporate funds and securities and shall keep in books belonging to the
Company full and accurate accounts of all receipts and disbursements;
he/she shall deposit all monies, securities and other valuable effects
in the name of the Company in such depositories as may be
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designated for that purpose by the Manager. He/she shall disburse the
funds of the Company as may be ordered by the Manager, taking proper
vouchers for such disbursements, and shall render to the President and
the Manager whenever requested an account of all his/her transactions
as Treasurer and of the financial condition of the Company. If required
by the Manager, he/she shall keep in force a bond in form, amount and
with a surety or sureties satisfactory to the Manager, conditioned for
faithful performance of the duties of his/her office, and for
restoration to the Company in case of his/her death, resignation,
retirement or removal from office, of all books, papers, vouchers,
money and property of whatever kind in his/her possession or under
his/her control belonging to the Company. He/she shall perform such
other duties as may be delegated to him/her by the Manager or the
President.
ARTICLE VI
DISSOLUTION AND WINDING UP
6.1 DISSOLUTION. The Company shall dissolve, the Articles
shall be canceled and the Company's affairs shall be wound up on the first to
occur of the following events:
(a) the sale or other disposition by the Company of all or
substantially all of the Property;
(b) upon the written consent of the Member;
(c) upon the dissolution, bankruptcy or other termination of
the existence of the Member;
(d) upon the entry of a final judgment, order or decree of
judicial dissolution, and the expiration of any applicable appeal
period in which to appeal therefrom.
6.2 DISTRIBUTION ON LIQUIDATION. Upon the dissolution of the
Company, the Manager shall proceed to liquidate the assets of the Company and
wind up its affairs. A reasonable time shall be allowed for the orderly
liquidation of the Company's assets and the payment of its liabilities so as to
enable the Manager to minimize the normal losses attendant upon liquidation. The
provisions of Article IV relating to the allocation of profits and losses of the
Company shall be applicable during the period of liquidation. Proceeds of
liquidation shall be applied and distributed in the following order of priority:
(a) To the payment of any debts and liabilities of the
Company;
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(b) To the establishment of any reserves which the Manager
deems necessary to provide for any debts or liabilities of the Company.
At the expiration of a reasonable period of time as the Manager deems
advisable, the balance of such reserve funds remaining after payment of
any such debts, liabilities or contingencies, shall be distributed in
accordance with subparagraph (c) below;
(c) To the Member.
ARTICLE VII
BOOKS, RECORDS AND ACCOUNTING
7.1 BOOKS AND RECORDS. The Company shall maintain complete and
accurate books and records of the Company's business and affairs as required by
the Act and such books and records shall be kept at the Company's Registered
Office.
7.2 ACCOUNTING. The Company shall maintain proper books and
records in accordance with generally accepted accounting principles. The fiscal
and taxable year of the Company shall be the calendar year. The Member and its
representatives shall have the right to inspect the Company's books and records
at any time upon reasonable notice.
7.3 MEMBER'S ACCOUNTS. The Member may, but shall not be
required to, elect to cause the Company to maintain a separate capital account
for the Member's Capital Contributions and increases for the Member's share of
any net income or gain of the Company. If the Member elects to cause the Company
to maintain such an account, the Member's capital account shall also reflect
decreases for distributions made to the Member and the Member's share of any
losses and deductions of the Company.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 BINDING EFFECT. Subject to the provisions of these Bylaws
relating to assignment and transferability, these Bylaws shall be binding upon
and shall inure to the benefit of the parties, and their respective
distributees, heirs, successors and assigns.
8.2 CERTIFICATES. The Member shall promptly execute and file
Articles of Organization and all other legally required fictitious names or
other applications, registrations, publications, certificates and affidavits
required to be filed with governmental authorities.
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8.3 AMENDMENT. These Bylaws may be amended or revoked at any
time by a written agreement executed by the Member. No change or modification to
these Bylaws shall be valid unless in writing and signed by the Member.
8.4 NOTICES. Any notice permitted or required under these
Bylaws shall be conveyed to the party at the address reflected in these Bylaws
and will be deemed to have been given, when deposited in the United States mail,
postage paid, or when delivered in person, or by courier or by facsimile
transmission.
8.5 SEVERABILITY. The invalidity or unenforceability of any
particular provision of these Bylaws shall not affect the other provisions
hereof, and these Bylaws shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
8.6 CHOICE OF LAW AND FORUM SELECTION. These Bylaws shall be
interpreted and construed in accordance with the laws of the State of Michigan.
All actions arising directly or indirectly out of these Bylaws shall be
litigated only in the United States District Court for the Eastern District of
Michigan, Southern Division, or the Oakland County, Michigan Circuit Court, and
the parties hereby irrevocably consent to the personal jurisdiction and venue of
those courts over the parties to these Bylaws.
8.7 TERMS. Nouns and pronouns will be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the person
or persons, firm or corporation may in the context require.
8.8 HEADINGS. The titles of the sections have been inserted as
a matter of convenience for reference only and shall not control or affect the
meaning or construction of any of the terms or provisions of these Bylaws.
The Company, Member and Manager have executed these Bylaws as
of the date set forth above.
"COMPANY"
TABB REALTY LLC,
a Single Member Michigan Limited Liability
Company
By: /s/ William C. Young
--------------------
William C. Young
Its: Manager
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"MEMBER"
PLASTIPAK HOLDINGS, INC.,
a Michigan corporation
By: /s/ William C. Young
--------------------
Its: President
"MANAGER"
By: /s/ William C. Young
--------------------
William C. Young
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