Exhibit 3.11
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICA'S COUNTRY STORES HOLDINGS, LLC
This Limited Liability Company Agreement (this "Agreement") of America's
Country Stores Holdings, LLC is entered into by Purina Xxxxx, LLC (as successor
by conversion to Purina Xxxxx, Inc.), as the sole member (the "Member").
WHEREAS, America's Country Stores Holdings, Inc. (the "Corporation"), was
formed as a Delaware corporation on August 8, 2000;
WHEREAS, by unanimous written consent, the board of directors of the
Corporation adopted a resolution adopting and approving the conversion of the
Corporation to a Delaware limited liability company and the adoption of this
Agreement, and recommending the adoption of such conversion and this Agreement
to the sole stockholder of the Corporation, pursuant to Section 266 of the
General Corporation Law of the State of Delaware (the "GCL");
WHEREAS, by written consent, the sole stockholder of the Corporation
adopted and approved the conversion of the Corporation to a limited liability
company and the adoption of this Agreement pursuant to Section 266 of the GCL;
WHEREAS, on the date hereof, the Corporation was converted to a limited
liability company pursuant to Section 18-214 of the Delaware Limited Liability
Company Act (6 Del.C. Section 18-101 et seq.), as amended from time to time (the
"Act") and Section 266 of the GCL by causing the filing with the Secretary of
State of the State of Delaware of a Certificate of Conversion to Limited
Liability Company (the "Certificate of Conversion") and a Certificate of
Formation of the Company, as hereinafter defined (the "Certificate") (together,
the "Conversion"); and
WHEREAS, pursuant to this Agreement and the Conversion, the successor by
conversion to the sole stockholder of the Corporation is admitted as a member
of the Company owning all of the limited liability company interests in the
Company.
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Act and hereby agrees
as follows:
1. FORMATION OF THE COMPANY; CONVERSION OF THE CORPORATION. Effective as
of the time of the Conversion, (i) the Certificate of Incorporation of the
Corporation, as amended, and the By-Laws of the Corporation, as amended, are
replaced and superseded in their entirety by this Agreement in respect of all
periods beginning on or after the Conversion, (ii) the successor by conversion
to the sole stockholder of the Corporation is
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hereby automatically admitted as a member of the Company owning all of the
limited liability company interests in the Company, (iii) the Member is
continuing the business of the Corporation without dissolution in the form of a
Delaware limited liability company governed by this Agreement, and (iv) in
accordance with Section 18-214(g) of the Act, the Company shall constitute a
continuation of the existence of the Corporation in the form of a Delaware
limited liability company and, for all purposes of the laws of the State of
Delaware, shall be deemed to be the same entity as the Corporation. Xxxxxx X.
Xxxxx is hereby designated as an "authorized person" within the meaning of the
Act, and has executed, delivered and filed the Certificate and the Certificate
of Conversion with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate and the Certificate of Conversion with the Secretary
of State of the State of Delaware, her powers as an "authorized person" ceased,
and each of the Member and the Officers (as hereinafter defined), acting alone,
thereupon became a designated "authorized person" to execute, deliver and file
any amendments and/or restatements of the Certificate and any other
certificates (and any amendments and/or restatements thereof) permitted or
required to be filed with the Secretary of State of the State of Delaware, and
shall continue as a designated "authorized person" within the meaning of the
Act. The Member or an Officer, acting alone, shall execute, deliver and file
any other certificates, affidavits and other documentation (and any amendments
and/or restatements thereof) necessary to qualify the Company as a foreign
limited liability company in any state or other jurisdiction in which such
qualification is required by law.
2. NAME. The name of the limited liability company formed hereby is
America's Country Stores Holdings, LLC (the "Company").
3. CERTIFICATES. The Member, as an authorized person, within the meaning
of the Act, shall execute, deliver and file, or cause the execution,
delivery and filing of, all certificates required or permitted by the Act to be
filed in the Office of the Secretary of State of the State of Delaware.
4. PURPOSES. The Company is formed for the object and purpose of, and the
nature of the business to be conducted and promoted by the Company is, engaging
in any lawful act or activity for which limited liability companies may be
formed under the Act.
5. POWERS. In furtherance of its purposes, but subject to all of the
provisions of this Agreement, the Company shall have the power and is hereby
authorized to:
(a) acquire by purchase, lease, contribution of property or otherwise,
and own, hold, sell, convey, transfer or dispose of, any real or personal
property that may be necessary, convenient or incidental to the accomplishment
of the purposes of the Company;
(b) act as a trustee, executor, nominee, bailee, agent or in some other
fiduciary capacity for any person or entity and exercise all of the powers,
duties, rights and responsibilities associated therewith;
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(c) take any and all actions necessary, convenient or
appropriate as trustee, executor, nominee, bailee, agent or other fiduciary,
including the granting or approval of waivers, consents or amendments of rights
or powers relating thereto and the execution of appropriate documents to
evidence such waivers, consents or amendments;
(d) operate, purchase, maintain, finance, improve, own, sell,
convey, assign, mortgage, lease or demolish or otherwise dispose of any real or
personal property that may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
(e) borrow money and issue evidences of indebtedness in
furtherance of any or all of the purposes of the Company, and secure the same by
mortgage, pledge or other lien on the assets of the Company;
(f) guaranty indebtedness of the Member or any other direct or
indirect parent, subsidiary or affiliate of the Company or, in furtherance of
any or all of the purposes of the Company, any other person or entity, and
secure the same by mortgage, pledge or other lien on the assets of the Company;
(g) lend or invest any funds of the Company pending
distribution or payment of the same pursuant to the provisions of this
Agreement;
(h) prepay, in whole or in part, refinance, recast, increase,
modify or extend any indebtedness of the Company and, in connection therewith,
execute any extensions, renewals or modifications of any mortgage or security
agreement securing such indebtedness;
(i) enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with the Member or any person or entity
affiliated with the member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the Company;
(j) employ or otherwise engage employees, managers, officers,
contractors, advisors, attorneys and consultants and pay reasonable compensation
for such services;
(k) establish and carry out pension, profit sharing,
retirement, benefit, incentive and compensation plans, trusts and provisions for
any or all of its employees, managers, officers or consultants, and for any or
all of the employees, managers, officers and consultants of its direct and
indirect subsidiaries;
(l) enter into or form partnerships, limited liability
companies, trusts, associations, corporations or other ventures either alone or
with other persons or entities in furtherance of the purposes of the Company;
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(m) make donations for the public welfare or for charitable,
scientific or educational purposes, and in time of war or other emergency in aid
thereof; and
(n) do such other things and engage in such other activities
related to the foregoing as may be necessary, convenient or incidental to the
conduct of the business of the Company, and have and exercise all of the powers
and rights conferred upon limited liability companies formed pursuant to the
Act.
6. PRINCIPAL BUSINESS OFFICE. The principal business office of the
Company shall be located at such location as may hereafter to determined by the
Member.
7. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
8. REGISTERED AGENT. The name and address of the registered agent of the
Company for service of process on the Company in the State of Delaware are The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
9. MEMBERS. The name and the mailing address of the Member are as
follows:
Name Address
---- -------
Purina Xxxxx, LLC (as successor by 0000 Xxxxxxxxx Xxxxxx North
conversion to Purina Xxxxx, Inc.) Xxxxx Xxxxx, Xxxxxxxxx 00000
10. LIMITED LIABILITY. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
11. CAPITAL CONTRIBUTIONS. The Member is deemed admitted as the member
of the Company upon its execution and delivery of this Agreement. The Member
shall be deemed to have contributed to the Company an amount equal to the fair
market value of the assets of the Corporation less the fair market value of the
liabilities of the Corporation.
12. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
13. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and losses
shall be allocated solely to the Member.
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14. DISTRIBUTIONS. Distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution to the Member on account of its interest in the Company if
such distribution would violate Section 18-607 of the Act or other applicable
law.
15. MANAGEMENT. In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power
to do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory
or otherwise, possessed by members of a limited liability company under the
laws of the State of Delaware. The Member has the authority to bind the
Company. Notwithstanding any other provision of this Agreement, the Member is
authorized to execute and deliver any document on behalf of the Company without
any vote or consent of any other person.
16. OFFICERS. The Member may, from time to time as it deems advisable,
select natural persons who are employees or agents of the Company and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the
title is one commonly used for officers of a business corporation formed under
the GCL, the assignment of such title shall constitute the delegation to such
person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this Section 16 may be revoked at any time
by the Member. An Officer may be removed with or without cause by the Member.
The persons serving as officers of the Corporation immediately prior to the
Conversion shall be the initial Officers, each holding such offices with the
Company as such person held with the Corporation immediately prior to the
Conversion.
17. OTHER BUSINESS. The Member may engage in or possess an interest in
other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
18. EXCULPATION AND INDEMNIFICATION. No Member or Officer shall be liable
to the Company or any other person or entity who has an interest in the Company
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Member or Officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Member or Officer by this Agreement, except that a
Member or Officer shall be liable for any such loss, damage or claim incurred
by reason of such Member's or Officer's willful misconduct. To the full extent
permitted by applicable law, a Member or Officer shall be entitled to
indemnification from the Company for any loss, damage or claim incurred by such
Member or Officer by reason of any act or omission performed or omitted by such
Member or Officer in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Member or Officer by this Agreement, except that no Member or
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Officer shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Member or Officer by reason of willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity under
this Section 18 shall be provided out of and to the extent of Company assets
only, and the Member shall have no personal liability on account thereof.
19. ASSIGNMENTS. The Member may at any time assign in whole or in part its
limited liability company interest in the Company. If the Member transfers all
of its interest in the Company pursuant to this Section 19, the transferee
shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. Such admission shall be deemed effective immediately prior to
the transfer, and, immediately following such admission, the transferor Member
shall cease to be a member of the Company.
20. RESIGNATION. The Member may at any time resign from the Company. If
the Member resigns pursuant to this Section 20, an additional member shall be
admitted to the Company, subject to Section 21 hereof, upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. Such admission shall be deemed effective immediately prior to
the resignation, and, immediately following such admission, the resigning
Member shall cease to be a member of the Company.
21. ADMISSION OF ADDITIONAL MEMBERS. One or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
22. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be wound up upon
the first to occur of the following: (i) the written consent of the Member,
(ii) at any time there are no members of the Company unless, within 90 days of
the occurrence of the event that terminated the continued membership of the
last remaining member of the Company (the "Termination Event"), the personal
representative (as defined in the Act) of the last remaining member agrees in
writing to continue the Company and to the admission to the Company of such
personal representative or its nominee or designee as a member, effective as of
the occurrence of the Termination Event, and such personal representative or
its nominee or designee shall be admitted upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement, or (iii) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
(b) The bankruptcy of the Member shall not cause the Member to cease
to be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the
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Company in an orderly manner), and the assets of the Company shall be applied in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
23. SEPARABILITY OF PROVISIONS. Each provision of this Agreement shall
be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the Member with respect to the subject matter hereof.
25. GOVERNING LAW. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
26. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
27. SOLE BENEFIT OF MEMBER. The provisions of this Agreement (including
Section 11) are intended solely to benefit the Member and, to the fullest extent
permitted by applicable law, shall not be construed as conferring any benefit
upon any creditor of the Company (and no such creditor shall be a third-party
beneficiary of this Agreement), and the Member shall have no duty or obligation
to any creditor of the Company to make any contributions or payments to the
Company.
28. CERTAIN TAX MATTERS. It is the intention of the Company and the
Member that the Company be disregarded as an entity separate from its owner for
federal income tax purposes in accordance with Treasury Regulation Section
301.7701-3.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the 11th day of October, 2001.
PURINA XXXXX, LLC
(as successor by conversion to
Purina Xxxxx, Inc.)
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: President
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