EXHIBIT 3.1(b)
LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSOLIDATED CONTAINER COMPANY LLC
LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSOLIDATED CONTAINER COMPANY LLC
TABLE OF CONTENTS
Page
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ARTICLE I ORGANIZATIONAL MATTERS ......................................1
1.1 Formation .........................................................1
1.2 Name ..............................................................1
1.3 Registered Office and Principal Office of Company .................1
1.4 Term ..............................................................1
1.5 Assumed Name Certificate ..........................................1
1.6 Limits of Company .................................................2
ARTICLE II DEFINITIONS .................................................2
ARTICLE III PURPOSE, MEMBER AND MEMBERSHIP INTEREST .....................4
3.1 Purposes and Scope ................................................4
3.2 Sole Member .......................................................4
3.3 Restrictions on the Disposition of a Membership Interest ..........4
ARTICLE IV CAPITAL CONTRIBUTIONS .......................................4
4.1 Initial Capital Contributions .....................................4
4.2 Additional Contributions ..........................................5
4.3 Maintenance of Capital Account ....................................5
4.4 Limited Liability of Sole Member ..................................5
ARTICLE V ALLOCATIONS AND DISTRIBUTIONS ...............................5
5.1 Allocation of Profits and Losses ..................................5
5.2 Interim Distributions .............................................5
5.3 Distributions on Termination ......................................5
5.4 Limitation on Distributions .......................................5
5.5 Distributions in Kind .............................................5
ARTICLE VI MANAGEMENT OF THE COMPANY ...................................6
6.1 Management by Manager .............................................6
6.2 Appointment of Manager and Tenure .................................6
6.3 Removal ...........................................................6
6.4 Duties of Manager .................................................6
6.5 Officers ..........................................................6
6.6 Indemnification ...................................................7
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Page
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ARTICLE VII ACCOUNTING AND TAX MATTERS ..................................7
7.1 Books and Records .................................................7
ARTICLE VIII DISSOLUTION AND LIQUIDATION .................................7
8.1 Dissolution .......................................................7
8.2 Effect of Dissolution .............................................7
8.3 Winding Up Procedures .............................................8
8.4 Distribution of Assets Upon Dissolution ...........................8
8.5 Distributions in Kind .............................................8
8.6 Articles of Dissolution ...........................................8
ARTICLE IX GENERAL PROVISIONS ..........................................8
9.1 Captions and Headings .............................................8
9.2 Amendment of Articles .............................................8
9.3 Amendment of this Agreement .......................................9
9.4 Number and Gender .................................................9
9.5 Binding Effect ....................................................9
9.6 Severability ......................................................9
9.7 Counterparts ......................................................9
9.8 Governing Law .....................................................9
Exhibit A
ii
LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSOLIDATED CONTAINER COMPANY LLC
This LIMITED LIABILITY COMPANY AGREEMENT of Consolidated Container Company
LLC (the "Agreement") is made as of the 29th day of April, 1999, by Consolidated
Container Holdings LLC, a Delaware limited liability company (the "Sole
Member").
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 Formation. The Company was formed as a limited liability company
in accordance with the Delaware Act on April 20, 1999. The Sole Member hereby
agrees to continue the Company as a Delaware limited liability company under and
pursuant to the Delaware Act and agrees that except as expressly provided and
permitted herein to the contrary, the rights and obligations of the Sole Member
and the administration and termination of the Company shall be governed by the
Delaware Act.
1.2 Name. The name of the Company shall be, and the business of the
Company shall be conducted under the name of, Consolidated Container Company
LLC. The Company's business may be conducted under any other name or names
approved by the Manager.
1.3 Registered Office and Principal Office of Company. The Company
shall maintain a registered office and a designated and duly qualified agent for
service of process on the Company in the State of Delaware. The Company may
maintain offices at such locations as the Manager deems advisable.
1.4 Term. The existence of the Company commenced on the Commencement
Date, and the Company shall continue in existence until the dissolution of the
Company pursuant to the express provisions of Article VIII hereof.
1.5 Assumed Name Certificate. The Sole Member shall execute and file
any assumed or fictitious name certificate or certificates or any similar
documents required by law to be filed in connection with the formation and
operation of the Company.
1.6 Limits of Company. The Sole Member intends that the Company
shall be treated as a limited liability company in accordance with the Delaware
Act for all purposes under state law; this Agreement shall not be construed to
provide otherwise.
ARTICLE II
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated to the contrary, apply to the terms used in this Agreement.
"Accounting Year" means the accounting year of the Company for
accounting and tax purposes, which will be the calendar year.
"Additional Contribution" means any Capital Contribution in excess
of that Sole Member's Initial Contribution, made to the Company pursuant to
Section 4.2 hereof.
"Agreed Contribution" means the sum of the Sole Member's Initial
Contribution and any Additional Contributions that Sole Member has made or is
obligated to make to the Company.
"Agreement" means this Limited Liability Company Agreement, as it
may be further amended, supplemented or restated from time to time in accordance
with the terms of this Agreement.
"Capital Account" means the capital account maintained for the Sole
Member pursuant to Section 4.3.
"Capital Contribution" means any Initial Contribution or Additional
Contribution to the capital of the Company in cash or property when and as such
contribution is actually made to the Company by the Sole Member.
"Certificate" means the Certificate of Formation of the Company
filed with the Secretary of State of Delaware, as it may be amended or restated
from time to time.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. All references herein to the Code shall include any
corresponding provision or provisions of succeeding law.
"Commencement Date" means the date that the Certificate was filed
with the Secretary of State of Delaware.
"Company" means Consolidated Container Company LLC, a Delaware
limited liability company, established by the filing of the Certificate with the
Secretary of State of Delaware.
"Delaware Act" means the Delaware Revised Limited Liability Company
Act, 6 Del. C. ss. 18-101, et seq., as amended from time to time.
"Dissolution Event" has the meaning set forth in Section 8.1.
"Distributable Cash" means the amount by which the aggregate amount
of all cash and cash equivalents from time to time held by the Company on hand
or in bank accounts or
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other temporary investments pending distribution, exceeds the aggregate of all
amounts to be paid or set aside by the Company for: (i) when due, all principal
and interest payments on indebtedness of the Company and all other sums payable
to lenders; (ii) all cash expenditures to be incurred in the normal operations
of the business of the Company; and (iii) such cash reserves as the Sole Member
may mutually deem reasonably necessary for the proper operation of the business
of the Company.
"Fair Market Value" means the price in cash, or its equivalent, that
an asset would bring considering its highest and most profitable use, if then
offered for sale in the open market, in competition with other similar assets at
or near the same location, with a reasonable time allowed to find a purchaser.
"Initial Contribution" means the initial Capital Contribution to the
Company made by the Sole Member as set forth in Exhibit "A" hereto.
"Losses" mean the losses and deductions of the Company determined in
accordance with accounting principles consistently applied from year to year
under the Method of Accounting of the Company.
"Manager" has the meaning set forth in Section 6.2.
"Membership Interest" means the interest of the Sole Member in the
Company, including, without limitation, such Member's right: (a)_to a
distributive share of the Profits, Losses, and other items of income, gain,
loss, deduction, and credit of the Company; (b)_to a distributive share of the
assets of the Company; and (c) to participate in the management and operation of
the Company as provided in this Agreement.
"Method of Accounting" means the accrued basis method of accounting
unless another method of accounting is agreed upon by the Sole Member or is
required to be used by the Code.
"Officers" has the meaning set forth in Section 6.5.
"Percentage Interest" means the percentage interest of the Sole
Member in certain allocations of Profits, Losses, and other items of income,
gain, loss, or deduction and certain distributions of cash and property.
"Person" means any individual or entity, public or private.
"Profits" means the income and gains of the Company determined in
accordance with accounting principles consistently applied from year to year
under the Company's Method of Accounting.
"Sole Member" means Consolidated Container Holdings LLC, a Delaware
limited liability company.
"Treasury Regulations" means the Treasury Regulations promulgated
under the Code, as amended and in effect (including corresponding provisions of
any succeeding regulations).
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ARTICLE III
PURPOSE, MEMBER AND MEMBERSHIP INTEREST
3.1 Purposes and Scope. The Company is organized to transact any and
all lawful business for which limited liability companies may be organized under
the Delaware Act.
3.2 Sole Member. The Sole Member of the Company is Consolidated
Container Holdings LLC, a Delaware limited liability company, which has, subject
to the provisions of Section 4.1 hereof, the entire Membership Interest and the
entire initial Capital Account balance of the Company as shown on Exhibit "A" of
this Agreement.
3.3 Restrictions on the Disposition of a Membership Interest. Except
as expressly set forth herein, the Sole Member will have the right to sell,
transfer, encumber or assign all or any portion of its Membership Interest in
the Company.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Initial Capital Contributions. Concurrently with the adoption of
this Agreement, the Sole Member will contribute to the capital of the Company
the Initial Contribution and will receive the Membership Interest set forth on
Exhibit "A" of this Agreement.
4.2 Additional Contributions. The Sole Member may, in its sole and
absolute discretion, make Additional Contributions in such amounts as it deems
appropriate.
4.3 Maintenance of Capital Account. A Capital Account will be
established and maintained for the Sole Member.
4.4 Limited Liability of Sole Member. The Sole Member will not be
liable for the debts, obligations, or liabilities of the Company beyond such
Sole Member's Agreed Contribution to the Company. The Sole Member will not be
required to make any Capital Contribution or loan to the Company beyond the
amount of such Sole Member's Agreed Contribution.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocation of Profits and Losses. All Profits and Losses of the
Company for each fiscal quarter and each Accounting Year (or portion thereof)
will be allocated entirely to the Sole Member as provided in this Agreement. Any
credit available for federal income tax purposes will be allocated entirely to
the Sole Member in the same manner.
5.2 Interim Distributions. Interim distributions of Distributable
Cash will be made not less often than each fiscal quarter, or at such other
times as the Manager may approve, and will be made by the Company to the Sole
Member in accordance with this Article V.
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5.3 Distributions on Termination. Upon the dissolution and
winding-up of the Company, its assets will be distributed in the manner
prescribed in Article VIII of this Agreement.
5.4 Limitation on Distributions. Any other provision of this
Agreement to the contrary notwithstanding, no interim distribution or
distribution on termination to the Sole Member will be declared and paid unless,
(a) after the distribution is made, the Fair Market Value of all of the assets
of the Company is in excess of all liabilities of the Company, other than
liabilities to the Sole Member on account of its Capital Contributions; and (b)
such distribution is in conformity with any outstanding loan agreements of the
Company.
5.5 Distributions in Kind. The Sole Member is entitled to demand and
receive a distribution from the Company in the form of cash or any other
property.
ARTICLE VI
MANAGEMENT OF THE COMPANY
6.1 Management by Manager.
(a) The Manager of the Company shall have full and complete
discretion to manage and control the business and affairs of the Company
in accordance with the terms and provisions of this Agreement.
(b) Any action required by the Delaware Act to be taken at any
management meeting, or any action that may be taken at any management
meeting, may be taken without a meeting, without prior notice, and without
a vote, if a written consent, setting forth the action so taken, is signed
by the Sole Member or the Manager.
6.2 Appointment of Manager and Tenure. The Manager of the Company
(the "Manager") will be a Person designated from time to time by the Sole
Member. As of the date hereof, the Manager of the Company will be the Sole
Member. The Manager will hold the office of Manager for such term and shall have
the authority to exercise such powers and perform such duties as will be
determined from time to time by the Sole Member. The salary or other
compensation, if any, of the Manager of the Company will be fixed from time to
time by the Sole Member.
6.3 Removal. The Manager may be removed as such at any time by the
Sole Member, either with or without cause, in the discretion of the Sole Member.
Designation of the Manager shall not of itself create contract rights.
6.4 Duties of Manager. The Manager shall have general and active
management of the day-to-day business and affairs of the Company and shall be
authorized and directed to implement all orders, resolutions and business plans
adopted by the Sole Member that do not violate applicable laws.
6.5 Officers. The Manager may designate such officers of the Company
as it deems necessary or appropriate from time to time, including a President,
one or more Vice Presidents and a Secretary, and such other officers as the
Manager shall deem desirable (the
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"Officers"). The Manager hereby delegates to each Officer the nonexclusive power
and authority to act as an agent of the Company and, in such capacity, to bind
the Company in the ordinary course of the Company's business and to execute any
and all documents to be signed by the Company.
As of the date hereof, the Officers shall be as follows:
Name Title
---- -----
William Estes President
Michelle P. Goolsby Vice President and Secretary
Tracy L. Noll Vice President and Assistant
Secretary
Angie Miro Assistant Secretary
6.6 Indemnification. The Company will indemnify its Sole Member,
Manager, and Officers to the same extent a corporation may indemnify its
directors, officers and others under applicable law.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 Books and Records. The Company will maintain such books and
records of the operations and expenditures of the Company as the Manager and
Officers shall determine.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
8.1 Dissolution. The Company will be dissolved upon the earliest to
occur of the following events: (each such event is referred to as a "Dissolution
Event"):
(a) an election to dissolve the Company is approved in writing by
the Sole Member; or
(b) any other event occurs that, under the Delaware Act, would
cause the Company's dissolution.
8.2 Effect of Dissolution. Upon the dissolution of the Company, the
Company will cease to carry on its business, except insofar as may be necessary
for the winding up of its business, and the assets of the Company will be
determined and valued effective as of the day on which the event occurs that
results in such dissolution, but the Company will not terminate until there has
been a winding-up of the Company's business and affairs and the assets of the
Company have been liquidated and distributed as provided in this Agreement.
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8.3 Winding Up Procedures. Upon the dissolution of the Company, the
Company will (a) proceed to collect its assets; (b) convey and dispose of such
of its properties as are not to be distributed in kind to the Sole Member; (c)
pay, satisfy, and discharge its liabilities, or make adequate provision for
payment and discharge of such liabilities; and (d) do all other acts required to
liquidate its business and affairs.
8.4 Distribution of Assets Upon Dissolution. In settling the
accounts of the Company after its dissolution, the assets of the Company will be
applied and distributed in the following order of priority:
(a) First, to the extent permitted by law, and in accordance with
the priorities, if any, established by applicable law, to creditors in
satisfaction of liabilities of the Company, including liabilities of the
Company to its Sole Member as a creditor (other than for distributions and
Capital Contributions), whether by payment or establishment of reserves;
(b) Second, to its Sole Member.
8.5 Distributions in Kind. If any assets of the Company are
distributed in kind, such assets will be distributed in accordance the
provisions of Section 8.4 above to the Sole Member.
8.6 Articles of Dissolution. When all liabilities and obligations of
the Company have been paid or discharged, or adequate provision has been made
for such liabilities, or in case its property and assets are not sufficient to
satisfy and discharge all of the liabilities and obligations of the Company,
then when all the property and assets of the Company have been applied to the
extent available to the bona fide liabilities and obligations of the Company,
and all of the remaining property and assets of the Company have been
distributed to its Sole Member, the Company shall cause the Certificate to be
cancelled and will take such other actions as are necessary or appropriate to
reflect the dissolution and termination of the Company.
ARTICLE IX
GENERAL PROVISIONS
9.1 Captions and Headings. The captions and heading used in this
Agreement are for convenience of reference only and will not be taken into
account in constructing the meaning or intent of this Agreement.
9.2 Amendment of Articles. The Certificate may be amended,
supplemented or restated by written consent of the Sole Member. Upon executing
the necessary consent with respect to, such amendment, supplement, or
restatement of the Certificate, the Sole Member will cause a Certificate of
Amendment to be prepared, executed, and filed in accordance with the Delaware
Act.
9.3 Amendment of this Agreement. This Agreement may be amended,
supplemented, or restated by the written consent of the Sole Member.
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9.4 Number and Gender. Where the context so indicates, the singular
will include the plural, and the use of any gender will include all other
genders.
9.5 Binding Effect. Except as otherwise expressly provided herein,
this Agreement will be binding upon and will inure to the benefit of the Sole
Member and its heirs, legal representatives, executors, administrators,
distributees, successors, and assigns.
9.6 Severability. If any one or more of the provisions contained in
this Agreement for any reason are held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability will not affect
any other provisions of this Agreement and this Agreement will be construed as
if such invalid, illegal, or unenforceable provisions had never been contained
in this Agreement.
9.7 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed to be an original and will be binding upon the Sole
Member who executed same, but all of such counterparts will constitute the same
Agreement and may be sufficiently evidenced by one counterpart.
9.8 Governing Law. This Agreement and the construction
interpretation will be governed exclusively by the Delaware Act and other
applicable laws of the State of Delaware.
IN WITNESS WHEREOF, the Sole Member has executed this Limited
Liability Company Agreement as of the date first set forth above.
SOLE MEMBER:
CONSOLIDATED CONTAINER HOLDINGS
LLC
By: FRANKLIN PLASTICS, INC.,
Its Manager
By: /s/ Michelle P. Goolsby
-----------------------------------
Name: Michelle P. Goolsby
Title: Vice President and Secretary
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LIMITED LIABILITY COMPANY AGREEMENT
OF
CONSOLIDATED CONTAINER HOLDINGS LLC
EXHIBIT "A"
Initial Capital Contributions and Membership Interest.
Fair Market Value of
Name of Sole Member Initial Capital Contribution Membership Interest
------------------- ---------------------------- -------------------
Consolidated Container $100.00 100%
Holdings LLC