Exhibit 3.5
OPERATING AGREEMENT OF
FRESH BRAND PROPERTIES, LLC
(A North Carolina Limited Liability Company)
THIS OPERATING AGREEMENT, dated as of December 11, 1997 (hereinafter, the
"Operating Agreement"), adopted by the Member-Managers of Fresh Brand
Properties, LLC (referred to herein as the "Members"), governs the operations
and management of the North Carolina limited liability company named above (the
"Company").
NOW, THEREFORE, intending to be legally bound hereby, the Members hereby
agree to operate a limited liability company under the laws of the State of
North Carolina, pursuant to the following terms and conditions:
ARTICLE I
GENERAL PROVISIONS
Section 1.1 PURPOSE. The purpose of the Company shall be to engage in
any lawful business.
Section 1.2. MEMBERS AS MANAGERS. The Company shall be managed by the
Members, which shall have the express authority, in addition, to any and all
other authority appertaining thereto under applicable law, the Articles of
Organization or this Operating Agreement, to appoint officers to manage the day
to day business affairs of the Company and to take any and all such further
action as may be delegated to such officers by the Members, as hereinafter more
fully set forth.
Section 1.3 PRINCIPAL OFFICE. The principal office and place of business
of the Company shall be maintained at or at such other place as the Members may
designate from time to time.
Section 1.4. REGISTERED AGENT AND OFFICE. The registered agent and office
of the Company in North Carolina shall be as provided in the Articles of
Organization or as the Members may designate from time to time.
Section 1.5. TERM. The existence of the Company shall terminate upon the
earlier of the completion of liquidation and distribution of the assets of the
Company after the occurrence of an Event of Dissolution (as hereinafter defined)
or December 31, 2095.
Section 1.6. INDEPENDENT ACTIVITIES. Except as expressly provided
otherwise herein and subject to applicable law, unless the Members agree
otherwise with the Company, any Member may engage in any activity in addition to
the business of the Company, whether or not competitive with or in conflict with
the business of the
Company, and shall not be required to disclose such activity to or offer any
interest in any such activity to the Company or to any Member.
ARTICLE II
ACCOUNTING
Section 2.1. BOOKS AND RECORDS. At all times during the continuation of
the Company, the Members shall keep or cause to be kept true and full books of
account and all other records necessary for recording the Company's business and
affairs and in compliance with applicable laws.
Section 2.2. FISCAL YEAR. The fiscal year of the Company shall be the
calendar year or such other period designated by the directors.
Section 2.3. BANK ACCOUNTS. All funds of the Company shall be deposited
in its name in such checking or savings accounts as shall be designated from
time to time by the Members. Withdrawals therefrom shall be made upon such
signature or signatures as the Members.
Section 2.4. INCOME TAX RETURNS AND ELECTIONS. The Company shall provide
the Members information on the Company's taxable income or loss that is relevant
to reporting the Company's income as well as all other filings, forms, or other
information required by federal or state taxing and regulatory authorities. This
information shall also show each Member's distributive share of each class of
income, gain, loss or deduction. This information shall be furnished to the
Members as soon as possible after the close of the Company's taxable year. All
elections require or permitted to be made by the Company under the Internal
Revenue Code of 1986, as amended (the "Code") shall be made by the Members.
Section 2.5. LOANS TO THE COMPANY. The amount of a loan, if any, made to
the Company by a Member shall not be considered a contribution to capital of the
Company. All such loans shall be documented by a promissory note of the Company
and shall bar interest at the rate, and be subject to the other terms, agreed to
by the Members.
ARTICLE III
DELEGATION OF AUTHORITY TO OFFICERS
Section 3.1. DELEGATION OF AUTHORITY; OFFICERS.
(a) Subject to their duties hereunder and under applicable law, the
Members may from time to time delegate to one or more persons such authority,
powers and duties as the directors shall deem appropriate.
(b) The Members may from time to time designate one or more individuals as
officers of the Company. An officer so designated shall have such authority,
powers and duties as the Members shall delegate to him or her. Any two or more
offices may be held by the same individual, but no officer may act in more than
one capacity where action of two or more officers is specifically required by
law or by the directors to be taken by two different individuals. The officers
shall serve without compensation in such capacity unless otherwise determined by
the directors. The designation of an officer does not itself create contract
rights.
(c) Each officer shall hold office until such officer's death, mental
incapacity, resignation or removal or until the appointment of a successor. Any
officer may be removed as an officer by the Members at any time with or without
cause. An officer may resign as an officer at any time by communicating a
resignation to the Company, orally or in writing. A resignation is effective
when communicated unless it specifies in writing a later effective date. If a
resignation is made effective at a later date, the Members may fill the pending
vacancy before the effective date provided that the successor does not take
office until the effective date.
Section 3.2. MAJOR DECISIONS. No officer may take any of the following
actions without the consent of all of the Members:
(a) Take any action which would, make impossible the ordinary conduct of
Company business, including selling, transferring or otherwise disposing of all
or substantially all of the Company's assets;
(b) Take any action in contravention of this Operating Agreement;
(c) Confess a judgment against the Company;
(d) File or consent to the filing of a petition for or against the Company
under any federal or state bankruptcy, insolvency or reorganization act;
(e) Amend this Operating Agreement;
(f) Change or reorganize the Company into any other legal form; or
(g) Merge the Company into or with another limited liability Company.
Section 3.3. EXPENSES. The Company shall reimburse the Members and
officers for all reasonable expenses, if any, incurred in connection with the
organization of this Company and in connection with the ownership, operation,
and management of the property owned by the Company. In addition, the Company
shall reimburse the Members and officers for all reasonable expenses incurred in
connection with the performance of duties and responsibilities hereunder,
including such expenses as shall be incurred by the Members and officers in
connection with the keeping of books and records and other administrative
expenses.
ARTICLE IV
INDEMNIFICATION
The Company shall indemnify each Member and officer to the extent permitted
or required by law.
ARTICLE V
DISSOLUTION AND TERMINATION OF THE COMPANY
Section 5.1. EVENTS OF DISSOLUTION. The Company shall be dissolved (a)
upon the election of the Members; (b) upon the sale by the Company of all or
substantially all its right, title, and interest in and to the Company property
and the receipt by the Company of the purchase price in full; or (c) upon the
entry of a decree of judicial dissolution, or the filing of a certificate of
administrative dissolution, pursuant to the North Carolina Limited Liability
Company Act (the "Act"), in either case that is not reversed, revoked or
rescinded within sixty (60) days thereafter; or (d) in any event at midnight on
the 31st day of December, 2095.
Section 5.2. WINDING-UP THE COMPANY. In the event of a dissolution of the
Company, a reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the discharge of liabilities to creditors so as to
enable the Member and the directors to minimize the normal losses attendant upon
a liquidation. The proceeds from liquidation of Company assets shall be applied
as follows: (a) payment to creditors of the Company in the order of priority
provided by law, and the establishment of a reserve for any unforeseen
liabilities or obligations; and (b) then to the Member.
ARTICLE VI
MISCELLANEOUS
Section 6.1. AMENDMENTS. This Operating Agreement may not be modified or
amended except in writing by consent of the Members.
Section 6.2. CAPTIONS. The captions and headings as used in this
Operating Agreement are used for convenience and reference only, and do not
constitute substantive matter to be considered in construing the terms of this
Operating Agreement.
Section 6.3. APPLICABLE LAW. This Operating Agreement shall be governed
by and construed in accordance with the laws of the State of North Carolina.
Section 6.4. SEVERABILITY. Every provision of this Operating Agreement is
intended to be severable, and if any term or provision thereof shall be declared
illegal, invalid, or in conflict with the Act, or the purposes of this Operating
Agreement for any
reason whatsoever, such term or provision shall be ineffectual and void, and the
validity of the remainder of this Operating Agreement shall not be affected
thereby, unless the invalidity of any such provision substantially deprives
either party of the practical benefits intended to be conferred by this
Operating Agreement.
Section 6.5. ACTION BY MEMBERS. Unless otherwise required by applicable
law, the Articles of Organization or this Operating Agreement, the Members shall
act only by unanimous vote or written consent of all of the Members.
[THIS SPACE INTENTIONALLY LEFT BLANK]
ASSIGNMENT OF MEMBERSHIP INTEREST
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, Xxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxxx, Xx. ("Assignor") hereby
transfers, assigns and conveys to PF Management, Inc. (collectively "Assignee"),
all of their right, title and interest to their 100% membership interest held by
Assignor in PF Distribution, LLC, a North Carolina limited liability company
("Company").
By this instrument, the Assignee hereby accepts assignment of the aforesaid
membership interest and agrees to be bound as the sole member under the terms
and conditions of the Operating Agreement of Company effective as of the date
hereof.
IN WITNESS WHEREOF, Assignor has executed this instrument as of this 13th
day of August, 2003.
/s/ Xxxxx X. Xxxxx (SEAL)
-------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxxx, Xx. (SEAL)
-------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
The undersigned Assignee hereby
acknowledges and agrees the day and
year first above written.
PF Management, Inc.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, President
Consent and acknowledgment of Manager, the day and year first above written.
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
