EXHIBIT 3.14
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BENNETT FOOTWEAR GROUP LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of Bennett Footwear Group LLC (the "Company"), effective as of May
20, 2003, is made by the Company and Bennett Footwear Holdings, LLC ("Holdings"
or the "Member"), in order to govern the operations of the Company as follows:
1. FORMATION. The Company has been organized as a Delaware limited
liability company under and pursuant to the Delaware Limited Liability Company
Act (the "Act") by the filing of a Certificate of Formation with the Office of
the Secretary of State of Delaware as required by the Act. The rights, duties
and liabilities of the Members shall be provided in the Act, except as otherwise
provided herein.
2. NAME; REGISTERED OFFICE AND AGENT; PRINCIPAL OFFICE. The name of the
Company is Bennett Footwear Group LLC. To the extent permitted by the Act, the
Company may conduct its business under one or more assumed names deemed
advisable by the Member. The registered office of the Company required by the
Act shall be the initial registered office named in the Certificate of Formation
or such other office (which need not be a place of business of the Company) as
the Member may designate from time to time in the manner provided by the Act.
The initial registered agent of the Company in the State of Delaware shall be
the initial registered agent named in the Certificate of Formation or such other
Person or Persons as the Member may designate in the manner provided by the Act.
The principal office of the Company shall be at such place as the Member may
designate from time to time, which need not be in the State of Delaware, and the
Company shall maintain records there for inspection as required by the Act. The
Company may have such other offices as the Member may designate from time to
time.
3. PURPOSE. The purpose of the Company is to own, lease and operate,
directly or indirectly through its ownership of other entities, and to carry on
the business consisting of designing, marketing, licensing, sublicensing,
distributing, purchasing and selling lines of branded and private label footwear
and accessories, and any other businesses which the Company or any entity owned
by the Company may hereafter acquire, and to engage in such other activities as
are permitted for a limited liability company organized in Delaware under the
Act. Subject to the limitations set forth in this Agreement, the Company shall
have all necessary powers, including those granted by the Act, to effect any of
the purposes for which it is formed.
4. REGISTER; CAPITAL CONTRIBUTIONS.
4.1. REGISTER. Pursuant to an Exchange Agreement of even date
between the Member, the Company, BICO Business Trust, Encore Shoe Business Trust
and Pentland U.S.A.,
Inc., the Member has acquired that percentage interest in the Company
("Percentage Interest"), as specified on the register of ownership (as amended
or restated from time to time) (the "Register") as set forth in Schedule 1
attached hereto and incorporated by reference herein. Unless otherwise
authorized by the Member, no certificates will be issued reflecting such
ownership. The Agreement is entered into between the Company and the Member and
is expressly not intended for the benefit of any creditor of the Company or any
other person.
4.2. EXPRESSION OF MEMBERSHIP INTERESTS. The Member may in its sole
discretion determine to use units (each, a "Unit") to calculate each Member's
Percentage Interest, rather than expressing such interest as a percentage. Upon
any determination by the Member to express Percentage Interests as Units, the
Member shall determine the aggregate number of outstanding Units issuable in
lieu of all outstanding Percentage Interests, and each Member shall be allocated
such Units as is equal to the product of such Member's Percentage Interest and
the aggregate number of outstanding Units allocated in lieu of all outstanding
Percentage Interests. After the initial allocation of Units, each Member's
Percentage Interest shall equal the percentage determined by dividing the number
of Units held of record by such Member by the aggregate number of Units
outstanding at such time.
5. TITLE TO COMPANY PROPERTY. All property shall be owned by the Company
and, insofar as permitted by applicable law, the Member shall have no ownership
interest in the property. Except as provided by law, an ownership interest in
the Company shall be personal property for all purposes.
6. MANAGEMENT OF THE COMPANY.
6.1. MANAGEMENT AND AUTHORITY. Pursuant to Section 18-402 of the
Act, the business and affairs of the Company shall be managed by the Member, who
shall have sole, exclusive, full, and complete authority, power, and discretion
to manage and control the business, affairs, and properties of the Company, to
make all decisions regarding those matters and to perform any and all other acts
or activities customary or incident to the management of the Company's business,
including, without limitation, the right and power to appoint individuals to
serve as officers of the Company and to delegate authority to such officers
("Officers") and to perform such acts or make such decisions as are expressly
permitted under this Agreement. Any agreement, instrument, certificate, or other
document shall be signed, executed, and delivered by the Officers or the Member
in order to be binding on behalf of the Company, and such execution and delivery
shall be conclusive evidence that it has been duly authorized and approved by
the Member.
6.2. LIABILITY OF THE OFFICERS AND MEMBER. Except in the case of
gross negligence, willful misconduct, fraud or bad faith, or to the extent
required by the Act and other applicable law, no Officer, if any, or Member
shall be liable, in damages or otherwise, for any error of judgment, for any
mistake of fact or law, or for any other act or thing which such Officer or
Member, as applicable, may do or refrain from doing in connection with the
business and affairs of the Company.
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7. INDEMNIFICATION OF OFFICERS. The Company, its receiver, or its trustee
shall indemnify, save harmless, and pay all judgments and claims against the
Officers (if any) relating to any liability or damage incurred by reason of any
act performed or omitted to be performed by such Member or Officers in
connection with the business of the Company, including attorneys' fees incurred
by such Officers in connection with the defense of any action based on any such
act or omission, which attorneys' fees may be paid as incurred, as permitted by
law.
8. RIGHTS AND OBLIGATIONS OF THE MEMBERS.
8.1. LIMITATIONS ON MEMBERS' LIABILITIES. The Members' liability
shall be limited as set forth in this Agreement, the Act, and other applicable
law. The Members shall not be bound by, or be personally liable for, the
expenses, liabilities, or obligations of the Company, except as provided by
Section 18-607 of the Act.
8.2. ACTION BY MEMBERS WITHOUT A MEETING. Any action required or
permitted to be taken by the Members may be taken with or without a meeting, and
with or without any written consents or other writings describing the action
taken.
9. DISTRIBUTIONS. All distributions by the Company shall be made at the
discretion of the Member.
10. BOOKS AND RECORDS.
10.1. BOOKS AND RECORDS. The Company shall keep proper and complete
records and books of account in which shall be entered fully and accurately all
transactions and other matters relative to the Company's business as are usually
entered into records and books of account maintained by Persons engaged in
businesses of a like character, including the capital account for the Member.
The books and records shall at all times be maintained by the Member at such
place(s) as may be approved by the Member, and shall be open to the inspection
and examination of the duly authorized representatives of the Member for any
purpose during reasonable business hours and at the sole cost and expense of the
Member.
10.2. REPORTS. The Company shall deliver to the Member such budgets,
reports, business plans, and other business and financial information as
reasonably determined by the Member and in such time frames reasonably
established by the Member in order for the Member and affiliates of Member to
comply with their own respective business and financial reporting requirements.
10.3. TAX RETURNS. The Member shall cause an accountant to prepare
all tax returns which the Company is required to file, if any, and shall file
with the appropriate taxing authorities all such returns in a manner required
for the Company to be in compliance with any law governing the timely filing of
such returns.
10.4. DEPOSITORIES. The member shall maintain or cause to be
maintained one or more accounts for the Company in such depositories as the
Member shall select. All receipts
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of the Company from whatever source received (but no funds not belonging to the
Company) shall be deposited to such accounts, and all expenses of the Company
shall be paid from such accounts.
11. DISSOLUTION.
11.1. EVENTS CAUSING DISSOLUTION. The Company shall be dissolved and
its affairs wound up upon the earlier to occur of the following:
(a) at such time as the Member determines that the Company
should be dissolved;
(b) at any time there are no Members, unless, within a ninety
(90) day period, the personal representative of the last remaining Member agrees
in writing to the continuation of the Company and to the admission of the
personal representative, or a designee, as a Member of the Company; or
(c) upon entry of a decree of judicial dissolution.
11.2. WINDING UP. Upon the dissolution of the Company, the Member
shall wind up the Company's affairs in accordance with the Act. In winding up
the affairs of the Company, the Member is authorized to take any and all actions
contemplated by the Act as permissible, including, without limitation:
(a) prosecuting and defending suits, whether civil, criminal,
or administrative;
(b) settling and closing the Company's business;
(c) liquidating and reducing to cash the property as promptly
as is consistent with obtaining its fair value;
(d) discharging or making reasonable provision for the
Company's liabilities; and
(e) distributing the proceeds of liquidation and any
undisposed property.
11.3. DISTRIBUTION OF PROCEEDS. Upon the winding up of the Company,
the Member shall distribute the proceeds and undisposed property as follows:
(a) to creditors, including the Member if the Member is a
creditors (to the extent and in order of priority provided by law) in
satisfaction of liabilities of the Company, whether by payment or the making of
reasonable provisions for payment thereof; and
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(b) thereafter, to the Members.
12. AMENDMENT. This Agreement may only be amended by the Member in
writing.
13. EFFECTIVENESS. This Agreement shall take effect immediately following
the closing of the transactions contemplated by a certain Securities Purchase
Agreement of even date between the Member, the Company, BICO Business Trust,
Encore Shoe Business Trust, Pentland U.S.A., Inc. and the other parties named
therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
BENNETT FOOTWEAR GROUP LLC
By: /s/ Gregg Ribatt
---------------------------------------
Gregg Ribatt, Executive Vice President
and COO
Members:
BENNETT FOOTWEAR HOLDINGS LLC
By: /s/ Gregg Ribatt
----------------------------------------------
Gregg Ribatt, Executive Vice President and COO
Address: 145 Wells Avenue
Newton, MA 02459
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