Exhibit 3.61
LIMITED LIABILITY COMPANY AGREEMENT
OF
PURINA XXXXX, LLC
This Limited Liability Company Agreement (this "Agreement") of Purina
Xxxxx, LLC is entered into by LOL Holdings II, Inc., as the sole member (the
"Member").
WHEREAS, Purina Xxxxx, Inc. (the "Corporation"), was formed as a
Delaware corporation on July 12, 1993;
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. ss. 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 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replaced and superseded in their entirety by this Agreement in respect of all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 sole stockholder of the
Corporation is 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 Purina Xxxxx, 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;
(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
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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;
(m) make donations for the public welfare or for
charitable, scientific or educational purposes, and in time of war or other
national emergency in aid thereof; and
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(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 be 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
LOL Holdings II, Inc. 0000 Xxxxxxxxx Xxxxxx Xxxxx
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.
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
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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 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
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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 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.
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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.
LOL HOLDINGS II, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
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