MEMBER’S AGREEMENT
Exhibit 3.16
MEMBER’S AGREEMENT
THIS AGREEMENT (this “Agreement”) of the undersigned sole member (the “Member”) of Heritage
Wafers, LLC, a Wisconsin limited liability company (the “Company”) and Xxxxxx X. Xxxxxx (the
“Organizer”), solely for the purpose of making the acknowledgment at the end of this Agreement, is
effective as to the Member as of January 2, 1999.
WITNESSETH:
WHEREAS, the Member has caused the formation of the Company by having the Organizer file with
the Wisconsin Department of Financial Institutions Articles of Organization, a copy of which is
attached hereto and incorporated by this reference, as provided in the Wisconsin Limited Liability
Company Law (the “WLLCL”); and
WHEREAS, the Member is hereby affirming its membership in the Company, acknowledging the
contributions made by such Member as set forth on Schedule A attached hereto, and assenting
to the operation of the Company under the WLLCL.
NOW, THEREFORE, in consideration of the premises and promises herein contained, the
undersigned does hereby agree as follows:
Section 1. Purpose. The Company was formed for the purpose of engaging in any lawful activity
within the purposes for which limited liability companies may be organized under the WLLCL, Chapter
183 of the Wisconsin Statutes.
Section 2. Member Contribution. The Member has contributed the property described on Schedule
A attached hereto. The Member has not agreed to make any additional contributions to the Company.
Section 3. Assignment of Membership Interest. The Member may assign all or any part of its
membership interest in the Company upon such terms and conditions as the Member and its assignee
shall agree in writing. A person to whom the Member assigns all or any part of its membership
interest in the Company in accordance with the preceding sentence shall be automatically admitted
as a member of the Company without any further action by the Member, the assignee or the Company.
Section 4. Company Dissolution. The Company is to be dissolved and its business wound up
as provided in the WLLCL.
Section 5. Member Management. The provisions of the WLLCL relating to a limited liability
company the management of which has been vested in its members shall apply to the operations and
management of the Company.
Section 6. Board of Directors.
(a) General Powers. The Member hereby delegates its management authority to
a Board of Directors.
(b) Tenure and Qualifications. The number of directors of the Company shall
be such number as may be elected from time to time by the Member. Each director shall
hold office until the Member appoints his successor, or until his death, resignation or
removal by the Member for any reason or no reason. If a Board of
Directors’ position is vacant through death, resignation or removal, the Member shall appoint a replacement
Director at its convenience. The initial members of the Board of Directors shall be
Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxxx.
(c) Meetings. Meetings of the Board of Directors may be called by or at the
request of the Chief Executive Officer, President, Secretary or any director. The person
calling such meeting may fix any time or place for holding any meeting of the Board of
Directors called by him. The Chief Executive Officer, and in his absence, the President,
and in their absence, any director chosen by the directors present, shall call meetings of
the Board of Directors to order and shall act as chairman of the meeting. The Secretary
of the corporation shall act as secretary of all meetings of the Board of Directors, but in
the absence of the Secretary, the presiding officer may appoint any director or other
person present to act as secretary of the meeting.
(d) Notice. Notice of any meeting shall be given at least forty-eight (48) hours
previous thereto by oral notice or written notice delivered personally or mailed to each
director at his last known address, or by facsimile. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with postage
thereon prepaid. If notice be given by facsimile, such notice shall be deemed to be
delivered when confirmation of receipt is printed out on the sending facsimile machine.
Whenever any notice whatever is required to be given to any director of the Company, a
waiver thereof in writing, signed at any time, whether before or after the time of meeting,
by the director entitled to such notice, shall be deemed equivalent to the giving of such
notice. The attendance of a director at a meeting shall constitute a waiver of notice of
such meeting except where a director attends a meeting and objects thereto to the
transaction of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting.
(e) Quorum. A majority of the directors then in office shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors, but though less
than such quorum is present at a meeting, a majority of the directors present may adjourn
the meeting from time to time without further notice.
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(f) Manner of Acting. The act of the majority of the directors present at a
meeting at which a quorum is present, shall be the act of the Board of Directors, unless
the act of a greater number is required by law.
(g) Compensation. The Board of Directors, by affirmative vote of a majority of
the directors then in office, and irrespective of any personal interest of any of its
members, may establish reasonable compensation of all directors for services to the
Company as directors, officers or otherwise or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority to provide for or
to delegate authority to an appropriate committee to provide for reasonable pensions,
disability or death benefits, and other benefits or payments, to directors, officers and
employees and to their estates, families, dependents or beneficiaries on account of prior
services rendered by such directors, officers and employees to the Company.
(h) Presumption of Assent. A director of the Company who is present at a meeting of the Board
of Directors or a committee thereof at which action on any matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by certified mail to
the Secretary of the Company immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
(i) Action By Consent of the Board of Directors. Any action required to be taken at a meeting
of the Board of Directors, or any other action which may be taken at a meeting of the Board of
Directors, may be taken without a meeting if a consent in writing,
setting forth the action so
taken, shall be signed by all of the directors entitled to vote with respect to the subject matter
thereof.
(j) Committees. The Board of Directors by resolution adopted by the affirmative vote of a
majority of the directors may designate one or more committees, each committee to consist of three
or more directors elected by the Board of Directors, which to the extent provided in said
resolution as initially adopted, and as thereafter supplemented or amended by further resolution
adopted by a like vote, shall have and may exercise, when the Board of Directors is not in session,
the powers of the Board of Directors in the management of the business and affairs of the
corporation, except action in respect to election of the principal officers or the filling of
vacancies on committees created pursuant to this section. The Board of Directors may elect one or
more of its members as alternate members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request by the Chief Executive Officer,
President or chairman of such meeting. Each such committee shall fix its own rules governing the
conduct of its activities and shall make such reports to the Board of Directors of its activities
as the Board of Directors may request.
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Section 7. Officers.
(a) Principal Officers. The principal officers of the Company shall be a Chief
Executive Officer, President, one or more Vice Presidents, a Secretary and a Treasurer,
each of whom shall be elected by the Board of Directors. Such other officers and
assistant officers as may be deemed necessary may be elected or appointed by the Board
of Directors. Any two or more offices may be held by the same person.
(b) Election and Term of Office. The officers of the Company shall be elected
annually by the Board of Directors. Each officer shall hold office until his successor shall
have been duly elected or until his prior death, resignation or removal in the manner
hereinafter provided.
(c) Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the best
interests of the Company will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or appointment
shall not of itself create contract rights.
(d) Vacancies. A vacancy in any principal office because of death, resignation,
removal, disqualification or otherwise, shall be filled by the Board of Directors for the
unexpired portion of the term.
(e) Chief Executive Officer. The Chief Executive Officer shall be the highest
executive officer of the Company and, subject to the control of the Board of Directors,
shall in general supervise and control all of the business and affairs of the Company. He
shall, when present, preside at all meetings of the Board of Directors. He may sign deeds,
mortgages, bonds, contracts, or other instruments necessary or proper to be executed in
the course of the Company’s regular business or which the Board of Directors has
authorized to be executed, except in cases where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other officer or agent of the
Company, or shall be required by law to be otherwise signed or executed; and in general
shall perform all duties incident to the office of chief executive officer and such other
duties as may be prescribed by the Board of Directors from time to time. Except as
otherwise provided by the Board of Directors, the Chief Executive Officer may authorize
any President, Vice-President or other officer or agent of the Company to sign, execute
and acknowledge such documents or instruments in his place and stead.
(f) President. The President shall be the chief operating officer of the Company. He shall,
in the absence of the Chief Executive Officer, preside at all meetings of the Board of Directors.
In the absence of the Chief Executive Officer or in the event of his death, inability or refusal to
act, the President shall perform the duties of the Chief Executive Officer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Chief Executive
Officer. The President may sign deeds,
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mortgages, bonds, contracts, or other instruments necessary or proper to be executed in the
course of the Company’s regular business or which the Chief Executive Officer or the Board of
Directors has authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Chief Executive Officer or the Board of Directors
to some other officer or agent of the Company, or shall be required by law to be otherwise
signed or executed; and in general shall perform all duties incident to the office of president
and such other duties as may be prescribed by the Chief Executive Officer or the Board of
Directors from time to time. Except as otherwise provided by the Board of Directors, the
President may authorize any Vice-President or other officer or agent of the Company to sign,
execute and acknowledge such documents or instruments in his place and stead.
(g) Vice President. In the absence of the President, or in the event of his death or
inability to act, the Vice President, or if there shall be more than one, the Vice Presidents,
in the order determined by the Board of Directors, shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice President or Vice Presidents, as the case may be, shall perform such
other duties and have such other powers as the Chief Executive Officer or the Board of
Directors may from time to time prescribe.
(h) Secretary. The Secretary shall: (a) keep the minutes of the Board of Directors’
meetings in one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of this Agreement or as required by law; (c) be
custodian of the Company’s records; (d) keep a register of the post office address of each
Member; and (e) in general, perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Chief Executive Officer or by
the Board of Directors.
(i) Treasurer. If required by the Board of Directors, the Chief Financial Officer/Treasurer
shall give a bond for the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall: (a) have charge and custody of and be
responsible for all funds and securities of the Company; (b) receive and give receipts for monies
due and payable to the Company from any source whatsoever, and deposit all such monies in the name
of the Company in such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of this Agreement; and (c) in general, perform all of the duties
incident to the office of Treasurer and such other duties as from time to time may be assigned to
him by the Chief Executive Officer or by the Board of Directors.
(j) Salaries. The salaries of the officers shall be fixed from time to time by the Board
of Directors and no officer shall be prevented from receiving such salary by reason of the fact
that he is also a director of the Company.
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Section 8. Indemnification
(a)
Liability of Directors and Officers. No person shall be liable to the
Company for any loss or damage suffered by it on account of any action taken or omitted
to be taken by him as a director or officer of the Company, or of any other corporation,
partnership, joint venture, trust or other enterprise which he serves as a director or
officer
at the request of the Company, in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, for which he had no reasonable cause to believe his conduct was
unlawful. In addition, no person shall be liable to the Company for any loss or damage
suffered by it on account of any action taken or omitted to be taken in reliance upon
advice of counsel for the Company or upon statements made or information furnished by
officers or employees of the Company which he had reasonable grounds to believe to be
true. The foregoing shall not be exclusive of other rights and defenses to which he may
be entitled as a matter of law.
(b)
Indemnification of Officers, Directors, Employees and Agents. The
Company shall have the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit or proceeding, whether civil,
criminal, administrative or investigative brought by any other person or by or in the right of
the Company to procure a judgment in its favor, by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys’ fees, actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, for which he had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good
faith or in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action or proceeding, without
reasonable cause to believe that his conduct was unlawful.
(c)
Successful Defense. To the extent that a director, officer, employee or agent
of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding to which this section is applicable, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses, including attorneys’ fees,
actually and reasonably incurred by him in connection therewith.
(d)
Determinations. Any indemnification under this Section 8, unless ordered
by a court, shall be made by the Company only as authorized in the specific case upon a
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determination that indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in this Section 8.
Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding or (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or (iii) by the Member.
(e) Request for Indemnification and Assignment of Claims Required.
To seek indemnification, the director, officer, employee or agent shall make a written request to the
Company. As a further pre-condition to any right to receive indemnification, the writing shall
contain a declaration that the Company shall have the right to exercise all rights and remedies
available to such director, officer, employee or agent against any other person, corporation,
foreign corporation, partnership, joint venture, trust or other enterprise, arising out of, or
related to, the claim, action, dispute or issue which resulted in the expenses for which the
director, officer, employee or agent seeks indemnification, and that the director or officer is
hereby deemed to have assigned to the Company all such rights and remedies.
(f) Indemnification Not Required. Indemnification under this Section 8 is not required to the
extent the director or officer has previously received such indemnification or allowance of such
expenses from any person or entity, including the Company, in connection with the same claim,
action, dispute or issue.
(g) Advancement of Expenses. Expenses, including attorneys’ fees, incurred in defending a
civil or criminal action, suit or proceeding may be paid by the Company in advance of the final
disposition of such action, suit or proceeding as authorized in the manner provided in subsection
8(d) upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by
the Company as authorized in this Section 8.
(h) Insurance. The Company may purchase and maintain insurance on behalf of any person who is
a director or officer against any judgment, settlement, penalty, assessment, forfeiture, or fine
whatsoever, including any excise tax assessed with respect to an employee benefit plan, asserted
against or incurred by the individual in any such capacity or arising out of his status as such,
regardless of whether the Company is required or authorized to indemnify or allow expenses to a
director or officer under this Section 8.
(i) Severability. If this Section 8 or any portion thereof is invalidated on any ground by any
court of competent jurisdiction, the Company may indemnify the director, officer, employee or agent
as to expenses, including reasonable attorneys’ fees, paid in
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settlement with respect to any claim, action, dispute or issue to the full extent permitted
by any applicable portion of this Section 8 that is not invalidated or by applicable law.
(j) Continuation of Indemnification. The indemnification provided by this Section 8
shall be the exclusive indemnification available from the Company to its directors,
officers, employees and agents, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the heirs,
successors, executors, and administrators of any such person.
9. Certificates. The Company may issue a membership certificate, or certificates,
evidencing the Member’s interest in the Company. Membership certificates shall be
consecutively
numbered or otherwise identified and shall be in such form as shall be determined by the Board
of
Directors. Each certificate shall contain the name and address of the person to whom the
certificate
is issued.
10. Miscellaneous. This Agreement shall be governed by the laws of the state of
Wisconsin without regard to the principles of conflicts of law and may only be amended in a
writing signed by the Member.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the date set forth above.
| RIPON FOODS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, President | ||||
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ACKNOWLEDGMENT
THE UNDERSIGNED hereby acknowledges that the attached constitutes a true and correct copy of
the Articles of Organization filed by me with the Wisconsin Secretary of State to organize the
Company.
| /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx, Organizer | |||
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(STAMP)
(STAMP)
ARTICLES OF ORGANIZATION
OF
NEW
HERITAGE WAFERS, LLC
These Articles of Organization are executed by the undersigned for
the purpose of forming a Wisconsin Limited Liability Company under Chapter 183 of the
Wisconsin Statutes:
ARTICLE I
The name of the limited liability company is New Heritage
Wafers, LLC.
ARTICLE II
The initial registered office is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxxx 00000.
ARTICLE III
The name of the initial registered agent at the above registered office is
Xxxxxx X. Xxxxxx.
ARTICLE IV
Management of the limited liability company shall be vested in the manager or
managers.
ARTICLE V
The name and complete address of the organizer is Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
Executed
this 17th day of December, 1998.
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx, Organizer | ||||
WI — DFI CORP
This document was drafted by:
Xxxxxx
X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Please return acknowledgment to:
Xxxxxxxx X. Xxxxxxx
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
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(STAMP)
AMENDMENT TO ARTICLES OF ORGANIZATION
OF
NEW HERITAGE WAFERS, LLC
Pursuant to the consent of the sole member of New Heritage Wafers, LLC and in
accordance with Section 183.0404(2) of the Wisconsin Statutes, the following resolutions
were duly adopted on December 22, 1998:
BE IT RESOLVED, that the Articles of Organization of New Heritage
Wafers, LLC be, and they hereby are, amended by deleting Article I thereof and
inserting in its place the following:
ARTICLE I
The
name of the limited liability Company is Heritage Wafers, LLC.
BE IT FURTHER RESOLVED, that this Amendment to Articles of
Organization shall become effective as of January 2, 1999.
Executed
in duplicate as of the 22nd day of December, 1998.
| NEW HERITAGE WAFERS, LLC By: Ripon Foods, Inc., its sole Member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, President | ||||
This instrument was drafted by:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(STAMP)
SCHEDULE
A
Property
Schedule
| Property | Percentage | |||||
| Member | Contributed | Interest | ||||
Ripon Foods, Inc.
|
One thousand (1,000) shares of common stock of Heritage Wafers, Ltd., a Wisconsin corporation | 100 | % | |||
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