EXHIBIT 3.2.6
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
WKI LATIN AMERICA HOLDING, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement"), which amends and restates the limited liability company agreement
of the Company dated March 22, 2000 (the "Original Agreement"), is made and
entered into this 30th day of January, 2003, by and between the Company and the
Sole Member. In consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration, the Sole Member and the
Company (and each person subsequently becoming a Member) agree as follows:
ARTICLE I
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FORMATION
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1.1 Formation. WKI LATIN AMERICA HOLDING, LLC, a Delaware limited
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liability company (the "Company") was formed by filing its Certificate of
Formation (the "Certificate") with the Delaware Secretary of State on March 22,
2000, pursuant to and in accordance with the Delaware Limited Liability Company
Act (the "Act"). The sole member of the Company shall be World Kitchen, Inc.
(the "Sole Member"). In the event of any conflict between the provisions of
this Agreement and the provisions of the Certificate, the provisions of the
Certificate shall govern.
1.2 Name. The name of the Company is WKI LATIN AMERICA HOLDING, LLC.
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All business of the Company shall be conducted in the name of the Company and
the Company shall hold all of its assets in its own name. The Sole Member may
change the name of the Company.
1.3 Principal Place of Business. The principal place of business of
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the Company shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Board of
Managers may change the principal place of business of the Company, and may
establish additional places of business of the Company both within and without
the State of Delaware.
1.4 Registered Agent and Registered Office. The registered agent and
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registered office of the Company in Delaware shall be The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
The Board of Managers may change the registered agent and/or registered office
of the Company at any time.
1.5 Purpose. The Company is formed for the purpose of engaging in any
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business for which a limited liability company may be formed pursuant to the
Act.
1.6 Term. The term of the Company shall commence on the date the
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Certificate was filed with the Delaware Secretary of State and shall continue
until the Company is dissolved and liquidated pursuant to the terms of this
Agreement or of the Act.
ARTICLE II
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TAX TREATMENT
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The Company shall be treated as a division of the Sole Member for tax
purposes unless and until at least one additional Member is added in which event
the Company shall thereafter be treated as a partnership for tax purposes.
ARTICLE III
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CAPITAL CONTRIBUTIONS
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Each member's interest in the Company shall be identified and held as units
of membership interests of the Company ("Units"). The Company shall issue
certificates for such Units to each member of the Company in a form determined
by the Company, and such Units shall be "securities," as defined in Article 8,
Section 8-102(a)(15) of the Uniform Commercial Code as adopted and in effect in
the State of Delaware, and shall be governed by such Article in all respects.
Upon execution of the Original Agreement, World Kitchen, Inc. contributed the
cash and/or property set forth on Schedule A, attached hereto, in exchange for
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one hundred Units, constituting one hundred percent (100%) of the membership
interests in the Company, and was admitted as the Sole Member.
In the event that the Board of Managers determine, in its sole discretion,
that the Company requires additional capital to fund its operations, the Sole
Member may make additional capital contributions to the Company or the Company
may borrow such capital from any person or persons, including the Sole Member,
but in no event shall the Sole Member be required to make additional capital
contributions to the Company, to loan money to the Company, or to cause the
Company to borrow money from any other person.
ARTICLE IV
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DISTRIBUTIONS
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Interim distributions from the Company shall be payable at the times and in
the amounts determined by the Board of Managers in its sole discretion,
provided, however, that such distributions are not prohibited by the Act.
ARTICLE V
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ALLOCATIONS
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Except as may be required by the Internal Revenue Code of 1986, as amended,
or the provisions of any successor statute (the "Code"), all items of income,
gain, loss, deduction and credit of the company shall be allocated to the Sole
Member.
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ARTICLE VI
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MANAGEMENT
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6.1 Management. The business of the Company shall be managed by the
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Board of Managers (each individual of such Board a "Manager" and collectively
the "Managers"), as set forth in Schedule B, and to be elected by the Sole
Member, from time to time.
Except as otherwise expressly provided in this Agreement, the Company and
its business shall be managed, controlled and operated exclusively by the Board
of Managers, who shall be the "managers" of the Company within the meaning of
the Act and shall have all of the powers and authority in respect of the Company
permitted to managers under the Act. Except as otherwise expressly set forth in
this Agreement the Sole Member shall not have any authority, right or power to
bind the Company, or to manage or control, or to participate in the management
or control of, the business and affairs of the Company in any manner whatsoever.
Such management shall in every respect be the full and complete responsibility
of the Board of Managers alone as provided in this Agreement.
6.2 No Required Meetings. The Sole Member shall not be required to
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hold or conduct any meetings at any time.
6.3 Liability of Sole Member. Unless otherwise provided by law or
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expressly assumed, the Sole Member shall not be liable for the acts, debts or
liabilities of the Company.
6.4 Removal or Resignation of a Member of the Board of Managers. The
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Sole Member may remove any member of the Board of Managers at any time, with or
without cause. A member of the Board of Managers may resign at any time upon
giving written notice to the Sole Member. Such resignation shall be effective
as of the date of such notice unless a later date is specified in such notice.
In the event of the removal, resignation or death or a member of the Board of
Managers, the Sole Member shall have authority to appoint a new member of the
Board of Managers.
6.5 Regular Meetings. Regular meetings of the Board of Managers may be
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held without notice at such time and at such place as shall from time to time be
determined by resolution of the Board of Managers.
6.6 Special Meetings. Special meetings of the Board of Managers may be
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called by or at the request of any two (2) Managers. The person or persons
authorized to call special meetings of the Board of Managers may fix any place
as the place for holding any special meeting of the Board of Managers called by
them.
6.7 Notice. Notice of any special meeting of the Board of Managers
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shall be given at least two (2) days prior to the date thereof by written notice
delivered personally or mailed to each Manager at his or her business address,
or by telegram or facsimile transmission. If mailed, such notice shall be deemed
to be delivered when in the United States mail, so addressed, with postage
thereon prepaid. Any Manager many waive notice of any meeting. The attendance of
a Manager at a meeting shall constitute a waiver of notice of such meeting,
except where a Managers attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting has not been (or has not
allegedly been) lawfully called or
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convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Managers need be specified in the
notice or waiver of notice of such meeting.
6.8 Quorum for Meetings of the Board of Managers. A majority-in-number
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of the Board of Managers shall constitute a quorum at any meeting of the Board
of Managers for the transaction of business, and the act of a majority-in-number
of the Managers present at any meeting at which there is a quorum shall be the
act of the Board of Managers, except as may otherwise be specifically provided
by statute. If a quorum shall not be present at any meeting of the Board of
Managers, a majority of the Managers present may adjourn the meeting from time
to time without further notice.
6.9 Written Action Without a Meeting; Telephone Meetings. Any action
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required or permitted to be taken by the Managers at a meeting of the Board of
Managers may be taken without a meeting if a consent in writing, setting forth
the action so taken, is provided by all of the Managers. Managers may
participate in any meetings of the Board of Managers by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
6.10 Presumption of Assent. A Manager who is present at a meeting of
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the Board of Managers at which action on behalf of the Company is taken shall be
presumed to have assented to the action taken unless his or her dissent is
entered into the minutes of the meeting or unless he or she files his or her
written dissent by registered mail to the Secretary of the Company immediately
after the adjournment of the meeting. The right to dissent shall not apply to a
Manager who voted in favor of such action.
ARTICLE VII
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TRANSFER OF MEMBERSHIP INTEREST
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The Sole Member may transfer all or any part of its membership interest in
the Company to any person at any time. The membership interest of the Sole
Member in the Company shall be freely transferable.
ARTICLE VIII
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BOOKS, RECORDS, TAX MATTERS
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8.1 Required Books and Records. The Company shall maintain complete
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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 principal
place of business and shall in all respects be independent of the books, records
and transactions of the Sole Member. The calendar year shall be the fiscal year
of the Company for tax and accounting purposes.
8.2 Inspection. The Sole Member shall have the right to inspect the
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books and records of the Company at any time.
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8.3 Tax Matters Partner. The Board of Managers shall be the Tax
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Matters Partner of the Company within the meaning of Section 6223 of the
Internal Revenue Code of 1986, as amended.
8.4 Other Matters. On or before the 90th day following the end of each
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fiscal year during the term of the Company, the Company shall furnish to the
Sole Member such information as the Sole Member may require for its federal
(and, where applicable, state) income tax reporting, including, if applicable, a
Form K-1 or its equivalent.
ARTICLE IX
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LIABILITY AND INDEMNIFICATION
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9.1 Certain Definitions.
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(a) "Indemnified Person" shall mean: (i) each Member and Manager,
and (ii) each equityholder, member, manager, officer, employee or agent of a
person described in the preceding clause (i). In addition, "Indemnified Person"
shall also include any employee or agent of the Company to the extent determined
by the Board of Managers in their reasonable discretion. A person that has
ceased to hold a position that previously qualified such person as an
Indemnified Person shall be deemed to continue as an Indemnified Person with
regard to all matters arising or attributable to the period during which such
person held such position.
(b) "Material Misconduct" shall mean, with respect to an
Indemnified Person, gross negligence, willful and material breach of this
Agreement, fraud, or the commission of a felony (except in the case of a felony
where the Indemnified Person reasonably believed that no such felony would occur
in consequence of such Indemnified Person's action or inaction, as the case may
be). For purposes of the preceding sentence: (i) an Indemnified Person shall be
deemed to have acted in good faith and without negligence with regard to any
action or inaction that is taken in accordance with the advice or opinion of any
attorney, accountant or other expert advisor so long as such advisor was
selected with reasonable care and the Indemnified Person made a good faith
effort to inform such advisor of all the facts pertinent to such advice or
opinion; and (ii) an Indemnified Person's reliance upon the truth and accuracy
of any written statement, representation or warranty of a Member or Manager
shall be deemed to have been reasonable and in good faith absent such
Indemnified Person's actual knowledge that such statement, representation or
warranty was not, in fact, true and accurate.
9.2 Liability. Except as otherwise specifically provided in this
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Agreement, no Indemnified Person shall be personally liable for the return of
any contributions made to the capital of the Company by the Members or the
distribution of capital account balances. Except to the extent that Material
Misconduct on the part of an Indemnified Person shall have given rise to the
matter at issue, such Indemnified Person shall not be liable to the Company or
the Members for any Act or omission concerning the Company. Without limitation
on the preceding sentence, except to the extent that such action constitutes
Material Misconduct, an Indemnified Person shall not be liable to the Company or
to any Member in consequence of voting for, approving, or otherwise
participating in the making of a distribution by the Company pursuant to Article
IV or Article X. An Indemnified Person shall not be liable to the Company, the
Managers, or the Members for losses due to the acts or omissions of any other
person serving as
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an independent contractor, employee or other agent of the Company unless such
Indemnified Person was or should have been directly involved with the selection,
engagement or supervision of such person and the actions or omissions of such
Indemnified Person in connection therewith constituted Material Misconduct.
9.3 Indemnification.
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(a) Except to the extent that Material Misconduct on the part of
an Indemnified Person shall have given rise to the matter at issue, the Company
shall indemnify and hold such Indemnified Person harmless from and against any
loss, expense, damage or injury suffered or sustained by such Indemnified Person
by reason of any actual or threatened claim, demand, action, suit or proceeding
(civil, criminal, administrative or investigative) in which such Indemnified
Person may be involved, as a party or otherwise, by reason of its actual or
alleged management of, or involvement in, the affairs of the Company. This
indemnification shall include, but not be limited to: (i) payment as incurred
of reasonable attorneys fees and other out-of-pocket expenses incurred in
investigating or settling any claim or threatened action (where, in the case of
a settlement, such settlement is approved by the Board of Managers), or incurred
in preparing for, or conducting a defense pursuant to, any proceeding up to and
including a final non-appealable adjudication; (ii) payment of fines, damages or
similar amounts required to be paid by an Indemnified Person; and (iii) removal
of liens affecting the property of an Indemnified Person. The total obligation
of the Company to all Indemnified Persons under this Section 9.3 shall be
limited to the assets of the Company.
(b) Indemnification payments shall be made pursuant to this
Section 9.3 only to the extent that the Indemnified Person is not entitled to
receive (or will not in any event receive) from another third party equal or
greater indemnification payments in respect of the same loss, expense, damage or
injury. In the event, however, that the Board of Managers determine that an
Indemnified Person would be entitled to receive indemnification payments from
the Company but for the operation of the preceding sentence, the Board of
Managers may cause the Company to advance indemnification payments to the
Indemnified Person (with repayment of such advance to be secured by the
Indemnified Person's right to receive indemnification payments from the
applicable third party).
(c) As a condition to receiving an indemnification payment
pursuant to this Section 9.3, an Indemnified Person shall execute an undertaking
in form and substance acceptable to the Board of Managers providing that, in the
event it is subsequently determined that such person was not entitled to receive
such payment (whether by virtue of such person's Material Misconduct or
otherwise), such person shall return such payment to the Company promptly upon
demand therefor by any Manager or Member.
(d) Notwithstanding the foregoing provisions of this Section 9.3,
the Company shall be under no obligation to indemnify an Indemnified Person from
and against any reduction in the value of such person's interest in the Company
that is attributable to losses, expenses, damages or injuries suffered by the
Company or to any other decline in the value of the Company's assets.
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(e) The indemnification provided by this Section 9.3 shall not be
deemed to be exclusive of any other rights to which any Indemnified Person may
be entitled under any agreement, as a matter of law, in equity or otherwise.
ARTICLE X
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DISSOLUTION
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10.1 Events of Dissolution. The Company shall dissolve (i) upon the
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written election of the Sole Member; or (ii) upon the entry of a decree of
judicial dissolution of the Company.
10.2 Winding Up. In the event of the dissolution of the Company for
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any reason, the Board of Managers shall commence to wind up the affairs of the
Company and to liquidate its investments in an orderly manner. The Board of
Managers shall have full right and unlimited discretion to determine the time,
manner and terms of any sale or sales of Company assets pursuant to such
liquidation having due regard to the activity and condition of the relevant
market and general financial and economic conditions.
10.3 Allocation and Distribution of Proceeds. Following the payment
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of, or provision for, all debts and liabilities of the Company and all expenses
of liquidation, and subject to the right of the Board of Managers to set up such
cash reserves as it may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Company, the proceeds of the
liquidation and any other funds or assets of the Company shall be distributed to
the Sole Member.
10.4 Articles of Dissolution. On completion of the distribution of
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Company assets as provided herein, the Company is terminated, and the Board of
Managers (or such other person or persons as the Act may require or permit)
shall file Articles of Dissolution with the Secretary of State of Delaware and
shall take such other actions as may be necessary to terminate the Company.
ARTICLE XI
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11.1 Amendment. This Agreement may be amended at any time by a written
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document executed by the Sole Member.
11.2 Governing Law; Severability. This Agreement and the rights of the
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parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware excluding any conflict of laws rule or principle
that might refer to the governance or the construction of this Agreement to the
law of another jurisdiction.
11.3 Liability of the Sole Member. Except as otherwise provided by
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applicable law oral expressly agreed to in writing by the Sole Member, the Sole
Member shall not have any person liability whatsoever, whether to the Company or
to the creditors of the Company, for the actions, debts or liabilities of the
Company or any of its losses beyond the amount committed by such Sole Member to
the Capital of the Company.
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11.4 Third Party Beneficiaries. Except for the indemnification
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provided to an Indemnified Person pursuant to Article IX hereof, the provisions
of this Agreement are not intended to be for the benefit of any creditor or any
other person (other than the Sole Member) to whom any debts, liabilities or
obligations are owed by (or who otherwise has a claim against), the Company or
the Sole Member, and no such creditor or other person shall obtain any rights
under such provisions or shall by reason of such provisions make any claim in
respect of any of the aforesaid debts, liabilities or obligations (or otherwise)
against the Company or the Sole Member.
11.5 Binding Effect. Except as herein otherwise specifically provided,
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the Agreement shall be binding upon and inure to the benefit of the Sole Member
and its legal representatives, heirs, administrators, executors, successors and
assigns.
11.6 Entire Agreement. This Agreement constitutes the entire agreement
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with respect to the subject matter hereof. It supersedes any prior agreement or
understandings, and it may not be modified or amended in any manner other than
as set forth herein.
11.7 Captions. Captions contained in this Agreement are inserted only
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as a matter of convenience and in no way define, limit or extend the scope of
any provision hereof.
11.8 Gender and Number. Wherever from the context it appears
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appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns state in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
11.9 Severance. If any provision of this Agreement, or the application
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of such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provisions to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
11.10 Other Activities. The Sole Member may have other business
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interests and may engage in other activities in addition to those relating to
the Company, including, without limitation, acting as a manager for other
limited liability companies, or as a general partner for partnerships. The
Company shall not have any right by virtue of this Agreement or otherwise in or
to such other ventures or activities of the Sole Member or to the income or
proceeds derived therefrom, and the pursuit of such ventures shall not be deemed
wrongful or improper.
11.11 Transactions with Affiliates. The validity of any transaction,
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agreement or payment involving the Company and the Sole Member or the Board of
Managers or involving the Company and any affiliate of the Sole Member or the
Board of Managers, otherwise permitted by the terms of this Agreement, shall not
be affected by reason of the relationship between the Company and the Sole
Member or Board of Managers and/or the Affiliate of the Sole Member or Board of
Managers, as the case may be.
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This Agreement is executed as of the first date written above.
THE COMPANY:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, its Manager
THE SOLE MEMBER:
WORLD KITCHEN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
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SCHEDULE A
DESCRIPTION OF CONTRIBUTED AGREED VALUE OF CONTRIBUTED
PROPERTY PROPERTY
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One participation interest of
WKM, S. de ▇.▇. de C.V. $1.00 (Mex)
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One participation interest of
World Kitchen Mexico, S. de ▇.▇. de C.V. $1.00 (Mex)
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SCHEDULE B
WKI LATIN AMERICA HOLDING, LLC
BOARD OF MANAGERS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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