Exhibit 3.7
OPERATING AND MEMBER CONTROL AGREEMENT
OF ALLIANCE MILK PRODUCTS, LLC.
This Operating and Member Control Agreement is made effective the 1st day of
August, 1996, by and among, Manna Pro Milk Products Inc., a Wisconsin
corporation ("MPMP"), and Purina Xxxxx, Inc., a Missouri corporation ("Purina"),
collectively the "Members".
For the consideration of the mutual covenants hereinafter set forth, the
Members hereby agree as follows:
SECTION ONE
DEFINITIONS
Section 1.01 Definitions. The terms defined in this Section One (except as may
be otherwise expressly provided in this Agreement or unless the context
otherwise requires) shall, for all purposes of this Agreement, have the
following respective meanings:
"Act" means the Minnesota limited liability company act contained in
Minnesota Statutes, Section 322B.
"Agreement" means this Operating and Member Control Agreement as hereafter
amended from time to time, including any schedules to the Agreement.
"Board" or "Board of Governors" means the board of governors of the
Company.
"Capital Account" means the account of a Member which is maintained in
accordance with the provisions of Section 4.07 hereof.
"Code" means the Internal Revenue Code of 1986, as amended and any
successor thereto. Any reference herein to specific sections of the Code shall
be deemed to include a reference to any corresponding provisions of future law.
"Company" means Alliance Milk Products, LLC, a Minnesota limited
liability company.
"Distribution" means the distributions to the Members of cash or other
assets of the Company made from time to time pursuant to the provisions of this
Agreement.
"Financial Rights" means a Member's rights to share in Net Income and Net
Losses and Distributions with respect to a membership interest in accordance
with the terms of this Agreement.
"Governance Rights" means all of a Member's rights as a Member in the
Company other than Financial Rights and the right to assign Financial Rights.
"Governor" means a natural person serving on the Board of Governors.
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"Manager" means a person elected, appointed, or otherwise designated as a
manager by the Board of Governors, and any other person considered elected as a
manager pursuant to the Act.
"Member" means a person reflected in the required records of the Company
as the owner of some Governance Rights of a Membership Interest of the Company.
"Membership Interest" means a Member's interest in the Company consisting
of the Member's Financial Rights and Governance Rights with respect to the
Company.
"Net Income" and "Net Losses" mean the profits and losses of the Company,
as the case may be, as determined for federal income tax purposes as of the
close of each of the fiscal years of the Company.
"Percentage Interest" as to any Member means the "Percentage Interest"
reflected on Schedule A for such Member.
"Plant" shall mean the product manufacturing facilities located in
Chilton, Wisconsin, related equipment and product and inventory supplies, as
contributed by MPMP to the Company pursuant to Schedule B, Contribution
Agreement.
"Voting Interest" as to any Member means the "Voting Interest" reflected
on Schedule A for such Member.
SECTION TWO
FORMATION, NAME AND GENERAL PURPOSE
Section 2.01 Formation. The Members hereby form a limited liability company
(the "Company") pursuant to the Minnesota Limited Liability Company Act and the
terms of this Agreement effective upon the filing of the Articles of
Organization for the Company with the Minnesota Secretary of State. The Members
shall execute and acknowledge any and all certificates and instruments and do
all filing, recording and other acts as may be appropriate to comply with the
requirements of the Act relating to the formation, operation and maintenance
of the Company in accordance with the terms of this Agreement.
Section 2.02 Intended Treatment. The Members intend that the Company shall be
operated in a manner consistent with its treatment as a "partnership" for
federal and state income tax purposes. No Member shall take any action
inconsistent with the express intent of the parties hereto. It is expressly
provided, however, that the Members do not intend that the Company be treated
as a "partnership" for purposes of Section 303 of the Bankruptcy Code.
Section 2.03 Name. The name of the Company shall be Alliance Milk Products, LLC.
Section 2.04 Registered Office; Principal Executive Office. The Company's
registered office shall be located at 0000 Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxx 00000. The principal executive office of the Company shall be at 000
Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx.
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Section 2.05 General Purpose and General Powers. The purpose of the Company
shall be to manufacture animal milk replacer and animal health products and the
like at the Plant for sale to Members and to engage in such other activities
that the Board of Governors or Members determine to be necessary or desirable
to effect the foregoing purpose. The Company may engage in any other lawful
business, but only upon the prior unanimous approval of its Board of Governors
or in accordance with Section 3.01 hereof.
Section 2.06 Term. The term of the Company shall commence upon the filing of
the Articles of Organization and shall expire 30 years from the date thereof,
unless dissolved earlier according to law or in accordance herewith.
Section 2.07 Members. The name and address of each of the Members are as
follows:
Name Address
---- -------
Manna Pro Milk Products Inc. 000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Purina Xxxxx, Inc. X.X. Xxx 00000
Xx. Xxxxx, XX 00000-0000
SECTION THREE
GOVERNANCE; CONDUCT OF OPERATIONS
Section 3.01 Governance. Except as set forth herein, the Company shall be
governed by a Board of Governors. Any action must be approved by the prior
unanimous consent of all of the governors. If the Board of Governors is unable
to reach an unanimous decision with respect to any proposed action, then the
issue shall be determined by a vote of the Members. The Members may take any
action by the prior majority consent of the Voting Interests.
Section 3.02 Sales to Members Only; Minimum Requirements Contract. All sales
of products by the Company shall be to Members only. Each member agrees to
execute a Milk Replacer Manufacturing Agreement which established certain
minimum product requirements, each of which are attached hereto and made a part
hereof as Schedule C (for Purina) and Schedule D (for Manna Pro).
Section 3.03 Sales at Cost Plus Manufacturing Margin. All sales of products by
the Company to Members shall be at reasonably incurred manufacturing costs plus
a set manufacturing margin of $200 per ton of product.
Section 3.04 Management Services Agreement with MPMP. The Company agrees to
enter into that certain Contract for Management Services with MPMP set forth on
Schedule E, which is attached hereto and incorporated herein by reference.
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Section 3.05 Services Agreements; No Employees. Unless otherwise agreed in
accordance with Section 3.01, the Company shall hire no employees but, rather,
shall enter into appropriate services agreements with entities and/or
individuals as approved by the Board of Governors.
Section 3.06 No Additional Interests in Real Property. Unless otherwise agreed
in accordance with Section 3.01, the Company shall not acquire or otherwise
obtain any additional interests in real property.
Section 3.07 No Transfer of Plant. Unless otherwise agreed in accordance with
Section 3.01, the Company shall not transfer, sell or otherwise dispose of the
Plant or any substantial portion or part thereof except in dissolution as a
distribution to MPMP.
Section 3.08 Periodic Audit. From time to time, and as may be directed by the
Members, the books and records of the Company shall be audited by KPMG Peat
Marwick.
SECTION FOUR
MEMBERSHIP INTERESTS
Section 4.01 Membership Interests and Board Authority as to Additional
Membership Interests. The names of the Members and their respective
contributions and the agreed value thereof are reflected on Schedule A, which
is attached hereto and incorporated herein by reference. No additional
contributions shall be accepted and Membership Interests granted by the Board
without the consent of one hundred percent (100%) of the outstanding Voting
Interests. Upon such consent and the issuance of additional Membership
Interests, Schedule A shall be appropriately amended.
Section 4.02 Terms of Membership Interests. The original Membership Interests
reflected in Schedule A are ordinary membership interests of one class, without
series, and shall have the rights provided by law, subject to any statement in
this Agreement of the specific rights or terms of such Membership Interests.
Section 4.03 Allocation of Net Income and Net Losses. Net Income and Net Losses
shall be allocated annually among the Members based on their Percentage
Interests as reflected on Schedule A.
Section 4.04 Operating Distributions. Any distributions authorized by the Board
other than Liquidating Distributions pursuant to Section 4.05 shall be
distributed among the Members based on their Percentage Interests as reflected
on Schedule A.
Section 4.05 Liquidating Distributions. If the Company is dissolved and (i)
dissolution is not avoided, and (ii) its business is being liquidated in
accordance with Section 322B.873, Subd. 1, the Company shall cease to carry on
its business, except to the extent necessary for the winding up of the business
of the Company. The parties agree that the Plant and associated Assets, (as
"Assets" is defined in Schedule B) shall be distributed to MPMP in accordance
with Section 4.07 below. The Company shall convey the Real Property (as defined
in Schedule B) to MPMP by general warranty deed, subject to the Permitted
Exceptions (as defined in Schedule B). The Company further agrees to execute
and deliver to MPMP any and all additional documents and shall take all actions
reasonably necessary in connection with the performance of its obligations
hereunder, and to carry out the intent of this
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Section. The parties understand that MPMP shall have the right to specifically
enforce the obligation of the Company to distribute the Assets to it. If
necessary as a result of such distribution, MPMP shall contribute a sum to its
capital account sufficient to retain its Membership Interest. The Company shall
thereafter be wound up and terminated as provided hereunder and by the Act.
Thereafter, the remaining property of the Company, including money, remaining
after the discharge of the debts, obligations, and liabilities of the Company
shall be distributed to the Members as follows:
(a) to the Members in proportion to, and to the extent of, the positive
balances in their Capital Accounts; and
(b) to the Members in accordance with their Percentage Interests as set
forth on Schedule A.
Section 4.06 Voting. Members shall be entitled to vote on all matters in
proportion to their Voting Interests as set forth on Schedule A.
Section 4.07 Capital Accounts. A Capital Account shall be established for each
Member and shall be maintained in accordance with Treasury Regulations Section
1.7041(b). Any Member who shall receive any Membership Interest in the Company
or whose Membership Interest shall be increased by means of the transfer to
such Member of any financial interest in the Company from another Member shall
have a Capital Account that has been appropriately adjusted to reflect such
transfer. No interest shall be paid by the Company on capital contributions or
on balances in Members' Capital Accounts.
Section 4.08 Initial Capital Contributions. On or before August 1, 1996, the
Members shall make the following contributions to the capital of the Company:
(a) MPMP shall contribute the Plant and other Assets as described in
Schedule B, the Contribution Agreement;
(b) Purina shall contribute to the capital of the Company cash in an
amount equal to that as set forth on Schedule A.
Section 4.09 Additional Capital Contributions. No Member shall have any
obligation to make additional capital contributions to the Company or to fund,
advance, or loan monies which may be necessary to pay deficits, if any,
incurred by the Company during the term hereof. Members may make loans to the
Company from time to time, as authorized by the Board. Any payment or transfer
accepted by the Company from a Member which is not a capital contribution
complying with Section 4.01 shall be deemed a loan and shall neither be treated
as a contribution to the capital of the Company for any purpose hereunder, nor
entitle such Member (as such) to any increase in such Member's Percentage
Interest. Any such loan shall be repaid at such times and with such interest
(at rates not to exceed the maximum permitted by law) as the Board and the
lending Member shall reasonably agree.
Section 4.10 Statement of Membership Interest. At the request of any Member,
the Company shall state in writing the particular membership interest owned by
that Member as of the moment the Company makes the statement. The statement
must describe the Member's rights to vote, to share in profits and losses, and
to share in distributions, as well as any assignment of the Member's rights
then in effect.
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Section 4.11 Declaration of Distributions. The Board of Governors shall have
the authority to declare distributions upon the membership interests of the
Company to the extent permitted by law.
SECTION FIVE
TRANSFER OF INTERESTS; WITHDRAWAL
Section 5.01 Transfers. A Member may assign the Member's full Membership
Interest only by assigning all of the Member's Governance Rights coupled with a
simultaneous assignment to the same assignee of all of the Member's Financial
Rights. Any assignment of any Governance Rights or Financial Rights is
effective only if (i) all the Members, other than the Member seeking to make
the assignment, approve the assignment by unanimous written consent, which
consent may be given or withheld, conditioned or delayed as the remaining
Members may determine in their sole discretion, and (ii) if the assignee
executes this Agreement as amended to reflect such assignee's interest in the
Company and any other instrument or instruments that the Board may deem
necessary or desirable to effect such assignment.
Section 5.02 Withdrawal. Any Member may withdraw from the Company for
whatsoever reason by providing at least ninety (90) days prior written notice
to the Board of Governors of its intention to do so. Upon withdrawal, the
Company shall dissolve and commence dissolution as described in Section 4.05,
and the withdrawing Member shall have no further obligations or liabilities to
any of the other Members by virtue of this relationship or by the act of
withdrawal, or to the Company itself.
SECTION SIX
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 6.01 Limitation of Liability. Each Member's liability for the debts and
obligations of the Company shall be limited as set forth in
Minnesota Statute
Section 322B.303 and other applicable law.
Section 6.02 Access to Company Records. Upon the written request of any Member,
the Chief Manager shall allow any Member to inspect and copy, at the Member's
expense, all Company records.
Section 6.03 Relations between Members. Except as expressly provided herein,
nothing in this Agreement shall be deemed to restrict in any way the freedom of
any of the Members to conduct any other business or activity whatsoever. Except
as expressly provided herein, no Member shall have any authority to act for, or
to assume any obligations or responsibilities on behalf of, the Company or any
other Member. The creation of the Company shall not convey to a Member, by
operation of law or otherwise, any interest in, right to, or ownership of any
asset or property of the other Member. No Member shall become responsible for
any of the debts, obligations or liabilities of the other, and no Member shall
be constituted the agent or attorney in fact of the other. Any transaction
unrelated to the purposes of the Company engaged in by a Member shall be solely
the liability and responsibility of such Member, who shall not be authorized to
bind the any other Member as agent or otherwise with respect to such
transaction.
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SECTION SEVEN
MEMBER MEETINGS
Section 7.01 Place of Meetings. Each meeting of the Members shall be held at
the principal executive office of the Company located at Chilton, Wisconsin, or
at such other place as may be designated by the Board of Governors; provided,
however, that any meeting called by or at the demand of a Member or Members
shall be held in the principal executive office of the Company.
Section 7.02 Regular Meetings. Regular meetings of the Members shall be held at
least on an annual basis and on a more frequent basis if so determined by the
Board of Governors. At each regular meeting the Members entitled to vote may
transact any business, provided, however, that no business with respect to
which special notice is required by law shall be transacted unless such notice
shall have been given.
Section 7.03 Special Meetings. A special meeting of the Members may be called
for any purpose or purposes at any time by the Chief Manager; by the Treasurer;
by the Board of Governors or any two or more governors; or by one or more
Members owning not less than ten percent of the voting power of all membership
interests of the Company entitled to vote, who shall demand such special
meeting by written notice given to the Chief Manager or the Treasurer of the
Company specifying the purposes of such meeting.
Section 7.04 Meetings Held Upon Member Demand. Within 30 days after receipt of
a demand by the Chief Manager or the Treasurer from any Member or Members
entitled to call a meeting of the Members, it shall be the duty of the Board of
Governors to cause a special or regular meeting of Members, as the case may
be, to be duly called and held on notice no later than 90 days after receipt of
such demand.
Section 7.05 Adjournments. Any meeting of the Members may be adjourned from
time to time to another date, time and place. If any meeting of the Members is
so adjourned, no notice as to such adjourned meeting need be given if the date,
time and place at which the meeting will be reconvened are announced at the
time of adjournment.
Section 7.06 Notice of Meetings. Unless otherwise required by law, written
notice of each meeting of the Members, stating the date, time and place and, in
the case of a special meeting, the purpose or purposes, shall be given at least
ten days and not more than 60 days prior to the meeting to every owner of
membership interests entitled to vote at such meeting except as specified in
Section 7.05 or as otherwise permitted by law. The business transacted at a
special meeting of Members is limited to the purposes stated in the notice of
the meeting.
Section 7.07 Waiver of Notice. A Member may waive notice of the date, time,
place and purpose or purposes of a meeting of Members. A waiver of notice by a
Member entitled to notice is effective whether given before, at or after the
meeting, and whether given in writing, orally or by attendance. Attendance by a
Member at a meeting is a waiver of notice of that meeting, unless the Member
objects at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened, or objects before a vote on an
item of business because the item may not lawfully be considered at that
meeting and does not participate in the consideration of the item at that
meeting.
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Section 7.08 Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the Members of the Company may be taken without a meeting
by written action signed by all of the Members entitled to vote on that action.
SECTION EIGHT
GOVERNORS
Section 8.01 Number; Qualifications. The business and affairs of the Company
shall be managed by or under the direction of a Board of Governors. Governors
shall be natural persons. Unless revised pursuant to the unanimous consent of
all Members, each Member shall be authorized to appoint and maintain two (2)
governors. In the event of death, resignation, or removal of any such governor,
the Member which appointed such governor shall be entitled to designate the
successor.
Section 8.02 First Governors. The first Governors of the Company shall be the
following, who are hereby elected to hold office until their successors are
appointed pursuant to this Agreement:
Xxxx Xxxxxxx, MPMP
Xxx Xxxx, MPMP
Xxxxxx Highmark, Purina
Xxxxxxx Peopple, Purina
Section 8.03 Term. Each governor shall serve for an indefinite term and shall
hold office until a successor is appointed by the respective Member or until
the earlier death, resignation, removal or disqualification of the governor.
Section 8.04 Place of Meetings. Each meeting of the Board of Governors shall be
held at the principal executive office of the Company or at such other place as
may be designated from time to time by a majority of the governors. A meeting
may be held by conference among the governors using any means of communication
through which the governors may simultaneously hear each other during the
conference.
Section 8.05 Regular Meetings. Regular meetings of the Board of Governors for
the election of managers and the transaction of any other business shall be
held without notice at the place of and immediately after each regular meeting
of the Members.
Section 8.06 Special Meetings. A special meeting of the Board of Governors may
be called for any purpose or purposes at any time by any governor by giving not
less than two days' notice to all governors of the date, time and place of the
meeting, provided that when notice is mailed, at least four days' notice shall
be given.
Section 8.07 Waiver of Notice; Previously Scheduled Meetings. A governor of the
Company may waive notice of the date, time and place of a meeting of the Board.
A waiver of notice by a governor entitled to notice is effective whether given
before, at or after the meeting, and whether given in writing, orally or by
attendance. Attendance by a governor at a meeting is a waiver of notice of that
meeting, unless the governor objects at the beginning of the meeting to the
transaction of business
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because the meeting is not lawfully called or convened and thereafter does not
participate in the meeting.
If the day or date, time and place of a Board meeting have been provided herein
or announced at a previous meeting of the Board, no notice is required. Notice
of an adjourned meeting need not be given other than by announcement at the
meeting at which adjournment is taken of the date, time and place at which the
meeting will be reconvened.
Section 8.08 Acts of Board. Except as otherwise required by law or specified in
the Articles of Organization or this Agreement, the Board shall take action by
the affirmative unanimous vote of the governors.
Section 8.09 Participation by Electronic Communications. A governor may
participate in a Board meeting by any means of communication through which the
governor, other governors so participating and all governors physically present
at the meeting may simultaneously hear each other during the meeting. A
governor so participating shall be deemed present in person at the meeting.
Section 8.10 Action Without a Meeting. An action required or permitted to be
taken at a Board meeting may be taken without a meeting by written action
signed by all of the governors. The written action is effective when signed by
all of the governors, unless a different effective time is provided in the
written action.
Section 8.11 Committees. A resolution approved by the unanimous vote of the
Board may establish committees having the authority of the Board in the
management of the business of the Company only to the extent provided in the
resolution. Committees shall be subject at all times to the direction and
control of the Board.
SECTION NINE
MANAGERS
Section 9.01 Number and Designation. The Company shall have one or more natural
persons exercising the functions of the position of Chief Manager and
Treasurer. The Board of Governors may elect or appoint such other managers or
agents as it deems necessary for the operation and management of the Company,
with such powers, rights, duties and responsibilities as may be determined by
the Board, each of whom shall have the powers, rights, duties and
responsibilities set forth in this Agreement unless otherwise determined by the
Board. Any of the positions or functions of those positions may be held by the
same person.
Section 9.02 Chief Manager. Unless provided otherwise by a resolution adopted
by the Board of Governors, the Chief Manager (a) shall have general active
management of the business of the Company; (b) shall, when present, preside at
all meetings of the Members and Board; (c) shall see that all orders and
resolutions of the Board are carried into effect; (d) may maintain records of
and certify proceedings of the Board and Members; and (e) shall perform such
other duties as may from time to time be prescribed by the Board.
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Section 9.03 Treasurer. Unless provided otherwise by a resolution adopted by the
Board of Governors, the Treasurer (a) shall keep accurate financial records for
the Company; (b) shall deposit all monies, drafts and checks in the name of and
to the credit of the Company in such banks and depositories as the Board shall
designate from time to time; (c) shall endorse for deposit all notes, checks and
drafts received by the Company as ordered by the Board, making proper vouchers
therefor; (d) shall disburse Company funds and issue checks and drafts in the
name of the Company, as ordered by the Board; (e) shall render to the Chief
Manager and the Board, whenever requested, an account of all of such manager's
transactions as Treasurer and of the financial condition of the Company; and (f)
shall perform such other duties as may be prescribed by the Board or the Chief
Manager from time to time.
Section 9.04 Secretary. The Secretary, unless otherwise determined by the Board
of Governors, shall attend all meetings of the Members and all meetings of the
Board, shall record or cause to be recorded all proceedings thereof in a book to
be kept for that purpose, and may certify such proceedings. Except as otherwise
required or permitted by law or by this Agreement, the Secretary shall give or
cause to be given notice of all meetings of the Members and all meetings of the
Board.
Section 9.05 Authority and Duties. In addition to the foregoing authority and
duties, all managers of the Company shall respectively have such authority and
perform such duties in the management of the business of the Company as may be
designated from time to time by the Board of Governors. Unless prohibited by a
resolution approved by the Board, a manager elected or appointed by the Board
may, without the approval of the Board, delegate some or all of the duties and
powers of a position to other persons.
Section 9.06 Term. Subdivision 1. All managers of the Company shall hold office
until their respective successors are chosen and have qualified or until their
earlier death, resignation or removal.
Subdivision 2. A manager may resign at any time by giving written notice to the
Company. The resignation is effective without acceptance when the notice is
given to the Company, unless a later effective date is specified in the notice.
Subdivision 3. A manager may be removed at any time, with or without cause, by a
resolution unanimously approved by the Board of Governors.
Subdivision 4. A vacancy in a position because of death, resignation, removal,
disqualification or other cause may, or in the case of a vacancy in the position
of Chief Manager or Treasurer, shall be filled for the unexpired portion of the
term by the unanimous consent of the Board of Governors.
Section 9.07 Salaries. The salaries of all managers of the Company shall be
fixed by the Board of Governors.
Section 9.08 Records. At the expense of the Company, the Manager shall maintain
at a minimum the following records at the Company's principal executive office;
(a) A current list of the full name and last known business, residence or
mailing address of each Member, Substituted Member, and Manager, both past and
present;
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(b) A copy of the Articles of Organization of the Company and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;
(c) Copies of the Company's currently effective written
Operating and
Member Control Agreement and all amendments thereto, copies of any similar
prior written agreements no longer in effect, and copies of any writings
permitted or required with respect to a Member's obligation to contribute cash,
property, or services;
(d) Copies of the Company's federal, state and local income tax returns
and reports for the three most recent years;
(e) Copies of financial statements of the Company, if any, for the three
most recent years;
(f) Minutes of every annual or special meeting of the Members;
(g) Any written consents obtained from Members for actions taken by
Members without a meeting;
(h) Minutes of every annual or special meeting of the Board of Governors;
(i) Any written consents obtained from Governors of the Board of
Governors for actions taken by governors of the Board of Governors without a
meeting;
(j) A statement of all contributions accepted; and
(k) A statement of all contribution agreements.
SECTION TEN
INDEMNIFICATION
Section 10.01 Indemnification. The Company shall indemnify its managers and
governors for such expenses and liabilities, in such manner, under such
circumstances, and to such extent, as required or permitted by
Minnesota
Statutes, Section 322B.699, as amended from time to time, or as required or
permitted by other provisions of law.
Section 10.02 Insurance. The Company may purchase and maintain insurance on
behalf of any person in such person's official capacity against any liability
asserted against and incurred by such person in or arising from that capacity,
whether or not the company would otherwise be required to indemnify the person
against the liability.
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SECTION ELEVEN
TAX MATTERS
Section 11.01 Tax Characterization and Returns. The Member acknowledge that
the Company will be treated as a "partnership" for tax purposes. Within 90 days
after the end of each fiscal year, the Chief Manager will cause to be delivered
to each person who was a Member at any time during such fiscal year a Form K-1
and such other information, if any, with respect to the Company as may be
necessary for the preparation of such Member's federal or state income tax (or
information) returns, including a statement showing each Member's share of
income, gain, or loss and credits for such fiscal year for federal or state
income tax purposes.
Section 11.02 Tax Matter Partner. MPMP shall act on behalf of the Company as
the "tax matters partner" within the meaning of Section 6231(a)(7) of the Code.
Section 11.03 Fiscal Year. The fiscal year of the Company shall end on the
last day of December of each calendar year unless the Members unanimously agree
to elect another fiscal year.
SECTION TWELVE
AMENDMENTS
Section 12.01 Amendment of Agreement. No change, modification or amendment of
this Agreement shall be valid or binding unless such change, modification or
amendment shall be in writing signed by the holders of one hundred percent
(100%) of the outstanding Voting Interests.
SECTION THIRTEEN
MISCELLANEOUS
Section 13.01 Governing Law. This Agreement and the rights of the parties
hereunder will be governed by, interpreted, and enforced in accordance with the
laws of the State of
Minnesota.
Section 13.02 Binding Effect. This Agreement will be binding upon and inure to
the benefit of the Members, and their permitted successors and assigns.
Section 13.03 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under the present or future laws effective
during the term of this Agreement, such provision will be fully severable; this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there will be added automatically as a
part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
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Section 13.04 Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will
constitute one and the same instrument. However, in making proof hereof it will
be necessary to produce only one copy hereof signed by the party to be charged.
Section 13.05 Additional Documents and Acts. Each Member agrees to execute and
deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions, and conditions of this Agreement and the
transactions contemplated hereby.
Section 13.06 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns, and no other person will have any rights,
interest, or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
Section 13.07 Notices. Any notice to be given or to be served upon the Company
or any party hereto in connection with this Agreement must be in writing and
will be deemed to have been given and received when delivered to the address
specified by the party to receive the notice. Such notices will be given to a
Member at the address specified in the Company's Required Records. Any Member
or the Company may, at any time by giving 5 days' prior written notice to the
other Members and the Company, designate any other address in substitution of
the foregoing address to which such notice will be given.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day and
year first set forth above.
MANNA PRO MILK PRODUCTS, INC. PURINA XXXXX, INC.
By: /s/ XXX XXXX By: /s/ XXXXX X. XXXXXX
------------------------------ ------------------------------
Print Name: Xxx Xxxx Print Name: Xxxxx X. Xxxxxx
---------------------- ----------------------
Its: Treasurer Its: President & CEO
----------------------------- ----------------------------
13
ALLIANCE MILK PRODUCTS LLC
SCHEDULE A TO
OPERATING AND
MEMBER CONTROL AGREEMENT
AS OF AUGUST 1, 1996
Agreed Value
Name of of Percentage Voting
Member Contribution Contribution Interest Interest
------- ------------ ------------ ---------- --------
MPMP Xxxxxxx Facility 90% 90%
Purina Xxxxx, Inc. Cash 10% 10%
14
