Exhibit 3.13
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DESTINATION PRODUCTS INTERNATIONAL, LLC
A Single Member Limited Liability Company
(the "Company")
THIS OPERATING AGREEMENT (the "Agreement") is made and entered into by
COTT BEVERAGES USA, INC., effective as of the date set out on the signature page
hereof.
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the following
meanings (unless otherwise expressly provided herein);
"Affiliate." With respect to any Person, (i) in the case of an
individual, any relative of such Person, (ii) any officer, director, trustee,
partner, member, manager, employee or holder of ten percent (10%) or more of any
class of the voting securities of or equity interest in such Person; (iii) any
corporation, partnership, limited liability company, trust or other entity
controlling, controlled by or under common control with such Person; or (iv) any
officer, director, trustee, partner, member, manager, employee or holder of ten
percent (10%) or more of the outstanding voting securities of any corporation,
partnership, limited liability company, trust or other entity controlling,
controlled by or under common control with such Person.
"Articles of Organization." The Articles of Organization of DESTINATION
PRODUCTS INTERNATIONAL, LLC., as filed with the Secretary of State of Delaware,
as the same may be amended from time to time.
"Capital Account." A capital account maintained for each Member in
accordance with the rules set forth in Section l.704-l(b)(2)(iv) of the
Regulations.
"Code." The internal Revenue Code of 1986 as it may be amended from
time to time, or any provision of succeeding law.
"Company" means DESTINATION PRODUCTS INTERNATIONAL, LLC.
"Delaware Act." The Delaware Limited Liability Company Act as amended
from time to time.
"Manager." One or more managers designated pursuant to this Agreement.
A Manager need not be a Member of the Company.
"Majority Vote." The written consent of Members owning more than fifty
percent (50%) of the Ownership Percentages.
"Member." Any individual or other legal entity executing this
Agreement.
"Officer." Any one or more persons appointed by this Agreement or the
Managers appointed to an official position pursuant to Article IV.
"Ownership Percentages." The percentage determined for each Member by
dividing such Member's capital contributions by the capital contributions of all
Members.
"Regulations." The Federal Income Tax Regulations, including temporary
regulations, promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
ARTICLE II
FORMATION OF COMPANY
2.1. Formation. The Company was formed as a Delaware limited liability
company by the filing of Certificate of Formation with the Secretary of State of
Delaware.
2.2. Principal Place of Business. The principal place of business of
the Company is the address set out on the signature page to this Agreement.
2.3. Registered Office and Registered Agent. The Company's initial
registered office in Delaware shall be Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx Xxxxxx. The initial registered agent is
Corporation Trust Company.
2.4. Term. The Company shall continue until dissolved.
ARTICLE III
BUSINESS OF COMPANY
The business of the Company shall be to engage in any lawful activity.
In furtherance thereof, the Company may exercise all powers necessary to or
reasonably connected with the Company's business which may be legally exercised
by limited liability companies under the Delaware Act, and may engage in all
activities necessary, customary, convenient, or incident to any of the
foregoing.
ARTICLE IV
MANAGEMENT OF THE COMPANY
A. RIGHTS AND DUTIES OF MANAGERS
4.1. Management. The business and affairs of the Company shall be
managed by its Managers. Subject to Article V, the Managers shall have 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.
4.2. Number, Tenure and Qualifications. The number of Managers of the
Company shall be fixed from time to time by Majority Vote, but in no instance
shall there be less than one Manager. The Company shall initially have three (3)
Managers. Each Manager shall hold office until his or her successor shall have
been elected and qualified or until his or her earlier death, resignation or
removal. Each Manager shall be elected by Majority Vote. As of the date hereof,
the initial Managers shall be Xxxxx X. Xxxxx, III, Xxxx Xxxxxxxx, and Xxxxx
Xxxxxxxx.
4.3. Certain Powers of Managers. Without limiting the generality of
Section 4.1, and subject to the requirements of Article V for approval by a
Majority Vote and to any other provision of this Agreement establishing greater
requirements, the Managers shall have power and authority, on behalf of the
Company:
(i) To acquire property from any Person as the Managers may determine.
(ii) To borrow money for the Company from banks, other lending
institutions, the Manager, Members, or affiliates of the Manager or Members on
such terms as the Managers deem appropriate, and in connection therewith, to
hypothecate, encumber and grant security interests in the assets of the Company,
to secure repayment of the borrowed sums. No debt shall be contracted or
liability incurred by or on behalf of the Company except by the Managers, or to
the extent permitted under the Delaware Act, by agents or employees of the
Company expressly authorized to contract such debt or incur such liability by
the Managers.
(iii) To purchase liability and other insurance to protect the
Company's property and business.
(iv) To hold and own any Company real and/or personal properties in the
name of the Company.
(v) To invest any Company funds temporarily (by way of example and not
limitation) in time deposits, short-term governmental obligations, commercial
paper or other investments.
(vi) To execute on behalf of the Company all instruments and documents,
including, without limitation, checks; drafts; notes and other negotiable
instruments; mortgages or deeds of trust; security agreements; financing
statements; documents providing for the acquisition,
mortgage or disposition of the Company's property; assignments; bills of sale;
leases; partnership agreements, operating agreements of other limited liability
companies; and any other instruments or documents necessary, in the opinion of
the Managers, to the business of the Company.
(vii) To employ accountants, legal counsel, managing agents or other
experts to perform services for the Company and to compensate them from Company
funds.
(viii) To enter into any and all other agreements on behalf of the
Company, with any other Person for any purpose, in such forms as the Managers
may approve.
(ix) Notwithstanding Section 4.3(vi) to designate a bank as depository
for Company funds and to authorize the execution of such resolutions a said
depository bank any reasonably require designating such person or persons whose
signatures shall be required on any checks, drafts, notes, bonds or other
instruments withdrawing funds from or incurring obligations to such depository
bank and covering related matters.
(x) To do and perform all other acts as may be necessary or appropriate
to the conduct of the Company's business. Unless authorized to do so by this
Operating Agreement or by the Managers of the Company, no officer,
attorney-in-fact, employee or other agent of the Company shall have any power or
authority to bind the Company in any way, to pledge its credit or to render it
liable pecuniary for any purpose.
4.4. Liability for Certain Acts. Each Manager shall act in a manner he
or she believes in good faith to be in the best interest of the Company and with
such care as an ordinarily prudent person in a like position would use under
similar circumstances. A Manager is not liable to the Company, its Members, or
other Managers for any action taken in managing the business or affairs of the
Company if he or she performs the duty of his or her office in compliance with
the standard contained in this Section. No Manager has guaranteed nor shall have
any obligation with respect to the return of a Member's capital contributions or
profits from the operation of the Company. No Manager shall be liable to the
Company or to any Member for any loss or damage sustained by the Company or any
Member except loss or damage resulting from intentional misconduct or knowing
violation of law or a transaction for which such Manager received a personal
benefit in violation or breach of the provisions of this Operating Agreement.
4.5. Managers Have No Exclusive Duty to Company. A Manager shall not be
required to manage the Company as his or her sole and exclusive function and he
or she may have other business interests and may engage in other activities in
addition to those relating to the Company. Neither the Company nor any Member
shall have any right, by virtue of this Operating Agreement, to share or
participate in such other investments or activities of the Manager or to the
income or proceeds derived therefrom. The Manager shall incur no liability to
the Company or to any of the Members as a result of engaging in any other
business or venture.
4.6. Indemnity of the Managers. Members. Employees and Other Agents. To
the fullest extent permitted by Section 18-108 of the Delaware Act, the Company
shall indemnify each Manager and Member and make advances for expenses to each
Manager and Member arising from any loss, cost, expense, damage, claim or
demand, in connection with the Company,
the Manager's or Member's status as a Manager or Member of the Company, the
Manager's or Member's participation in the management, business and affairs of
the Company or such Manager's or Member's activities on behalf of the Company.
4.7. Resignation. Any Manager of the Company may resign at any time by
giving written notice to the Members of the Company. The resignation of any
Manager shall take effect upon receipt of notice thereof or at such later time
as shall be specified in such notice; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
The resignation of a Manager as a Manager shall not affect the Manager's rights
as a Member and shall not constitute a withdrawal of the Manager as a Member.
4.8. Removal. A Manager may be removed at any time, with or without
cause, by Majority Vote. The removal of a Manager as a Manager shall not affect
the Manager's rights as a Member and shall not constitute a withdrawal by such
Manager as a Member.
4.9. Vacancies. Any vacancy occurring for any reason in the office of
Manager shall be filled by Majority Vote.
4.10. Salary. The salaries and other compensation of the Managers shall
be fixed from time to time by Majority Vote.
4.11. Actions of Managers. No action shall be taken by the Managers
with respect to the business and affairs of the Company unless such action has
been approved by a majority of the Managers.
4.12. Meetings of Managers. The Managers shall meet annually, without
notice, following the annual meeting of the Members. The Managers may set any
number of regular meetings by resolution. No notice need be given for any annual
or regular meeting of the Managers. Special meetings of the Managers may be
called at any time by the Chief Operating Officer or by any two Managers, on two
days' written notice to each Manager, which notice shall specify the time and
place of the meeting. Notice of any such meeting may be waived by an instrument
in writing executed before or after the meeting. Managers may attend and
participate in meetings either in person or by means of conference telephones or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting by means of such
communication equipment shall constitute presence in person at such meeting.
Attendance in person at such meeting shall constitute a waiver of notice
thereof.
4.13. Action in Lieu of Meeting. Any action to be taken at a meeting of
the Managers, or any action that may be taken at a meeting of the Managers, may
be taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the Managers and any further requirements of
law pertaining to such consents have been complied with.
B. OFFICERS
4.14. General Provisions. The Officers of the Company shall consist of
a Chief Operating Officer, a Treasurer, and a Secretary, who shall be elected by
the Managers, and such other officers as may be elected by the Managers or
appointed as provided in this Agreement. Each Officer shall be elected or
appointed for a term of office running until the meeting of the Managers
following the next annual meeting of the Members, or such other term as provided
by resolution of the Managers or the appointment to office. Each Officer shall
serve for the term of office for which he or she is elected or appointed and
until his or her successor has been elected or appointed and has qualified or
his or her earlier resignation, removal from office, or death. Any two or more
offices may be held by the same person, except that the Chief Operating Officer
and the Secretary shall not be the same person.
4.15. Chief Operating Officer. The Chief Operating Officer shall be
responsible for the general and active management of the operation of the
Company subject to the authority of the Managers. The Chief Operating Officer
shall be responsible for the administration of the Company, including general
supervision of the policies of the Company and general and active management of
the financial affairs of the Company. The initial Chief Operating Officer shall
be Xxxxx Xxxxxx.
4.16. Vice Presidents. The Company may have one or more Vice
Presidents, elected by the Managers who shall perform such duties and have such
powers as may be delegated by the Managers.
4.17. Secretary. The Secretary shall keep minutes of all meetings of
the Members and the Managers and have charge of the company records and shall
perform such other duties and have such other powers as may from time to time be
delegated to him or her by the Chief Operating Officer or the Managers. The
initial Secretary shall be Xxxx Xxxxxxxx.
4.18. Treasurer. The Treasurer shall be charged with the management of
the financial affairs of the Company, shall have the power to recommend action
concerning the Company's affairs to the Chief Operating Officer, and shall
perform such other duties and have such other powers as may from time to time be
delegated to him or her by the Chief Operating Officer or the Managers. The
initial Treasurer shall be Xxxxx Xxxxxxxx.
4.19. Assistant Secretaries and Treasurers. Assistants to the Secretary
and Treasurer and such other officers as may be designated from time to time may
be appointed by the Chief Operating Officer or elected by the Managers and shall
perform such duties and have such powers as shall be delegated to them by the
Chief Operating Officer or the Managers.
ARTICLE V.
RIGHTS AND OBLIGATIONS OF MEMBERS
If the Company has more than one Member, or if the Company's sole
Member is not the sole Manager, then the following actions shall require prior
written approval by Majority Vote:
(i) the sale, exchange or other disposition of all or any part
of the Company's assets;
(ii) the merger of the Company into another entity;
(iii) the borrowing of any funds exceeding such amount of as
may be approved by the sole Member;
(iv) the entering into any contract with, consummating any
transaction with, or paying any compensation to, a Manager, a Member, or any
Affiliate of the Manager or any Member;
(v) the confession of any judgment against the Company or the
voluntary declaration of bankruptcy by the Company;
(vi) the admission of additional Members;
(vii) the acquisition of any real property or an ownership
interest in another entity; or
(viii) any request for additional capital from the Members.
ARTICLE VI
ACTION BY MEMBERS
Each Member shall have the right to one vote. Members shall act by
Majority Vote.
ARTICLE VII
CONTRIBUTIONS
Each Member shall contribute property as an initial capital
contribution.
ARTICLE VIII.
DISTRIBUTIONS
8.1. Distributions. All distributions shall be made to the Members in
proportion to their respective Ownership Percentages at the time of the
distribution; provided, that following the dissolution of the Company as
provided in Section 12.1 hereof, distributions shall be made in accordance with
Section 12.2 hereof.
8.2. Limitation Upon Distributions. No distribution shall be made to
Members if prohibited by Section 18-607 of the Delaware Act.
8.3. Interest On and Return of Capital Contributions. No Member shall
be entitled to interest on such Member's Capital Contribution or to a return of
its Capital Contribution, except as otherwise specifically provided for herein.
8.4. Priority and Return of Capital. No Member shall have priority over
any other Member, either as to the return of capital contributions or as to
profits, losses or distributions. This Section shall not apply to loans (as
distinguished from capital contributions) which a Member has made to the
Company.
ARTICLE IX.
ALLOCATIONS OF NET PROFITS AND NET LOSSES
9.1. General Allocations. Profits and losses shall be allocated for
each fiscal year first to the Members to the extent (and in the least amount)
necessary to cause their Capital Account balances to be in the same proportion
as their respective Ownership Percentages and the balance shall be allocated to
the Members in proportion to their respective Ownership Percentages.
9.2. Built-In-Gain or Loss. In the event that the capital accounts of
the Members are adjusted to reflect the fair market value of the Company's
property and assets, either upon contribution of property to the Company or
otherwise, the Members' distributive shares of depreciation, depletion,
amortization, and gain or loss, as computed for tax purposes, with respect to
such property, shall be determined pursuant to 1.704-1(b)(4)(i) of the
Regulations so as to take account of the variation between the adjusted tax
basis and book value of such property in the same manner as under 704(c) of the
Code. Any deductions, income, gain or loss specially allocated pursuant to this
subsection 9.2 shall not be taken into account for purposes of adjusting a
Member's Capital Account.
ARTICLE X.
BOOKS AND RECORDS
10.1. Accounting Period. The Company's accounting period shall be the
calendar year.
10.2. Records and Reports. At the expense of the Company, the Manager
shall maintain records and accounts of all operations and expenditures of the
Company. The Company shall keep at its principal place of business the following
records:
(a) A current list of the full name and last known address of
each Member and Manager;
(b) Copies of records to enable a Member to determine the
relative voting rights, if any, of the Members;
(c) A copy of the Certificate of Formation of the Company and
all amendments thereto;
(d) Copies of the Company's federal, state, and local income
tax returns and reports, if any, for the three most recent years;
(e) Copies of this Operating Agreement, together with any
amendments thereto; and
(f) Copies of any financial statements of the Company for the
three most recent years.
The books and records shall be at all times maintained at the principal
office of the Company and shall be open to the reasonable inspection and
examination of the Members or their duly authorized representatives during
reasonable business hours.
10.3. Tax Returns. At the expense of the Company, the Manager shall
cause the preparation and timely filing of all tax returns required to be filed
by the Company pursuant to the Code and all other tax returns deemed necessary
and required in each jurisdiction in which the Company does business. Copies of
such returns, or pertinent information therefrom, shall be furnished to the
Members within a reasonable time after the end of the Company's fiscal year.
ARTICLE XI.
TRANSFERABILITY; ADDITIONAL MEMBERS
A transferee of the interest of a Member shall become a Member only if
the transferor, his legal representative or authorized agent has executed a
written instrument of transfer of such interest in form and substance
satisfactory to the Manager, and the Members, by Majority Vote, approve the
proposed transfer.
Any individual or other entity approved by Majority Vote may become a
Member in the Company for such consideration as the Members by Majority Vote
shall determine.
ARTICLE XII.
DISSOLUTION AND TERMINATION
12.1. Dissolution. The Company shall be dissolved only upon a Majority
Vote of the Members or upon the dissolution or death of all Members. No other
event shall cause the Company to dissolve. Upon dissolution, the Company shall
cease to carry on its business, except as permitted by the Delaware Act.
12.2. Winding Up Liquidation and Distribution of assets.
(a) Upon dissolution, if there is more than one Member, then an
accounting shall be made by the Company's accountants of the accounts of the
Company and of the Company's assets, liabilities and operations, from the date
of the last previous accounting until the date of
dissolution. The Manager(s), or if none, the person or entity selected by
Majority Vote of the Members (the "Liquidator") shall immediately proceed to
wind up the affairs of the Company as provided by the Delaware Act.
(b) If the Company is dissolved and its affairs are to be wound up, the
Manager(s) or Liquidator shall:
(1) Sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent the Manager(s) or Liquidator may
determine to distribute any assets to the Members in kind);
(2) Allocate any profit or loss resulting from such sales to
the Members in accordance with Article IX hereof;
(3) Discharge all liabilities of the Company, including
liabilities to Members who are creditors, to the extent otherwise permitted by
law, other than liabilities to Members for distributions, and establish such
reserves as may be reasonably necessary to provide for contingencies or
liabilities of the Company;
(4) Distribute the remaining assets to the Members, either in
cash or in kind, in accordance with the positive balance (if any) in each
Member's Capital Account (as determined after taking into account all Capital
Account adjustments for the Company's calendar year during which the liquidation
occurs), with any balance in excess thereof being distributed in proportion to
the Members' respective Ownership Percentages. Any such distributions in respect
to Capital Accounts shall, to the extent practicable, be made in accordance with
the time requirements set forth in Section 1.704-1(b)(2)(ii)(b)(2) of the
Regulations; and
(5) If any assets of the Company are to be distributed in
kind, the net fair market value of such assets shall be determined by
independent appraisal or by agreement of the Members. Such assets shall be
deemed to have been sold as of the date of dissolution for their fair market
value, and the capital accounts of the Members shall be adjusted pursuant to the
provisions of this Operating Agreement to reflect such deemed sale.
(c) Notwithstanding anything to the contrary in this Agreement, a
Member shall have no obligation to make any capital contribution to reduce or
eliminate the negative balance of such Member's capital account.
12.3. Return of Contribution Nonrecourse to Other Members. Each Member
shall look solely to the assets of the Company for the return of the Member's
capital contribution. If the Company property remaining after the payment or
discharge of the debts and liabilities of the Company is insufficient to return
the capital contribution of one or more Members, then such Member or Members
shall have no recourse against any other Member or any Manager.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
13.1. Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditor of the Company or by any person
not a party hereto.
13.2. Federal Income Tax Elections: Tax Status. All elections required
or permitted to be made by the Company under the Code shall be made by Majority
Vote. As long as the Company has a single Member, the Company shall be taxed as
a division of the sole Member if the Member is an entity other than an
individual, trust, or estate and, if the sole member is an individual, estate,
or trust, then as a sole proprietorship or as directly owned assets of the sole
Member.
13.3. Amendments. Any amendment to this Agreement shall be made by
Majority Vote.
IN WITNESS WHEREOF, the undersigned, as the sole Member and a Manager
of the Company, has set his or her hand and seal and has set out below his or
her signature, his or her address, the address of the principal place of
business of the Company, effective as of the 12th day of January, 1999.
Sole Member:
COTT BEVERAGES USA, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Attest:
---------------------------
Address of Company's principal place of Address of Member:
business:
0000 Xxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxxxxx 00000
