Exhibit 3.23
OPERATING AGREEMENT
OF
GOLDEN STATE FEEDS, LLC
THIS OPERATING AGREEMENT is entered into effective as of the 1st day of
September, 2000 (the "Effective Date"), by Golden State Feeds, LLC, a Delaware
limited liability company (the "Company") and Land O'Lakes Farmland Feed LLC, a
Delaware limited liability company having its principal place of business in
Arden Hills, Minnesota (the "Member"), as sole member.
ARTICLE I
DEFINITIONS
SECTION 1. CERTAIN DEFINITIONS. As used herein, the following terms have
the following meanings:
(A) "Act" means the Limited Liability Company Act of the State of
Delaware, as amended.
(B) "Agreement" means this Operating Agreement, as amended.
(C) "Code" means the internal Revenue Code of 1986, as amended.
(D) "Company" means Golden State Feeds, LLC, the limited liability company
governed pursuant to this Agreement.
(E) "Director" means a member of the Board of Directors and shall be
considered a manager for purposes of the Act.
(F) "Person" or "person" shall mean an individual, trust, estate,
partnership, association, firm, company, or corporation, or any state or public
officer, agency or instrumentality.
(G) "Property" shall mean any and all assets and property of the Company,
real or personal, tangible or intangible (including but not limited to
goodwill), including but not limited to money and any legal or equitable
interest in any such assets and property, but excluding services and promises to
perform services in the future.
(H) "Transfer" or "transfer" shall mean sell, assign, convey, donate,
bequeath, pledge, grant a security interest in, encumber, transfer or otherwise
dispose of or contract to transfer, whether voluntarily or involuntarily.
(I) "Treasury Regulation(s)" means the regulations of the United States
Department of the Treasury promulgated under the Code, as the same may be
amended or supplemented from time to time.
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SECTION 1.2. FORMATION OF THE COMPANY. The Company was formed under and
pursuant to the provisions of, and constitutes a valid limited liability company
under, the Act as evidenced by Certificate of Formation which was filed in the
Office of the Secretary of State of the State of Delaware on August 31, 2000.
SECTION 1.3. NAME. The Company's name shall be "Golden State Feeds, LLC",
and such name shall be used at all times in connection with the business and
affairs of the Company.
SECTION 1.4. NAME AND ADDRESS OF SOLE MEMBER. The name and mailing address
of the Member are set forth at the beginning of this Agreement.
SECTION 1.5. PRINCIPAL OFFICE. The principal office of the Company shall be
at such location as may be determined by the Directors.
SECTION 1.6. STATUTORY AGENT FOR SERVICE. The Company's statutory agent for
service shall be CT Corporation, with a business address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
SECTION 1.7. ELECTION OF TAX STATUS. Pursuant to Sections 301.7701-1
through 301.7701-3, inclusive, of the Treasury Regulations, the Company elects
to be taxed as a sole proprietorship for federal, state and local income tax
purposes. The Member shall complete and file IRS Form 8832, and any similar
filing required by any state in which it is subject to taxes, with all
appropriate governmental agencies setting forth such election.
ARTICLE II
CAPITAL CONTRIBUTIONS
SECTION 2.1. CAPITAL CONTRIBUTIONS. The Member shall not be required to
make capital contributions to the Company.
ARTICLE III
DISTRIBUTIONS
SECTION 3.1. DISTRIBUTIONS. Subject to the provisions of Section 7.3, the
Company's net profits shall be distributed to the Member at such times and in
such amounts as the Directors shall determine in their absolute discretion. Such
distributions may take the form of cash or Property as the Directors shall
determine by majority vote in their absolute discretion.
ARTICLE IV
ACCOUNTING
SECTION 4.1. ACCOUNTING METHODS. The Company books and records shall be
prepared in accordance with generally accepted accounting principles,
consistently applied. The Company shall be on an accrual basis for both tax and
accounting purposes, or as otherwise determined by the Directors. Land O'Lakes
Farmland Feed LLC is hereby designed as the "tax matters partner" for the
Company (as such term is defined in Section 6231(a)(7) of the Code).
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SECTION 4.2. FISCAL YEAR. The fiscal year of the Company shall be the
twelve calendar month period ending December 31.
ARTICLE V
MANAGEMENT
SECTION 5.1. DIRECTOR'S POWERS. The business, affairs and property of the
Company shall be managed by a Board of Directors consisting of one or more
Directors. Unless otherwise required in this Agreement, the affirmative vote of
a majority of the Directors shall be required on any action taken or resolution
approved which requires Director approval. The Directors shall have the
authority to designate one or more officers of the Company with such authority
and power as the Directors shall, in their discretion, delegate to such
officers. The Member shall have the power to designate the Board of Directors
and to change the constituency of the Board of Directors.
ARTICLE VI
TRANSFER OF MEMBER'S INTEREST
SECTION 6.1. TRANSFER PERMITTED. All or a portion of the Member's
membership interest in the Company may be disposed of in any manner provided by
law, and, upon such disposition, the transferee shall become a Member without
further action on the part of the transferee, the Company or the Member.
ARTICLE VII
DISSOLUTION OF THE COMPANY;
DISSOCIATION OF A MEMBER
SECTION 7.1. DISSOLUTION OF THE COMPANY. The Company shall dissolve upon
the happening of the first to occur of the mandatory events of dissolution
listed in the Act, as amended.
SECTION 7.2. EFFECT OF DISSOLUTION. Upon dissolution, the Company shall
cease carrying on the Company business except as necessary for the winding up
of the Company business, and the Company is not terminated, but rather shall
continue until the winding up of the affairs of the Company is completed and a
Certificate of Dissolution has been issued by the Secretary of State of the
State of Delaware.
SECTION 7.3. DISTRIBUTION OF ASSETS ON DISSOLUTION. Upon the winding up of
the Company, the Company's Property shall be distributed: first, to creditors,
including the Member if then a creditor, to the extent permitted by law, in
satisfaction of the Company's indebtedness and other liabilities; and second,
to the Member. Liquidation proceeds shall be paid within 180 days of the end of
the Company's taxable year or, if later, within 180 days after the date of
liquidation.
SECTION 7.4. WINDING UP AND CERTIFICATE OF DISSOLUTION. The winding up of
the Company shall be completed when all debts, liabilities, and obligations of
the Company have been paid and discharged or reasonably adequate provision
therefor has been made, and all of the remaining Property and assets of the
Company have been distributed as provided in Section 8.3 hereof. Upon the
completion of winding up of the Company, a Certificate of Dissolution shall be
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delivered to the Office of the Secretary of State of the State of Delaware for
filing. The Certificate of Dissolution shall set forth the information required
by the Act.
ARTICLE VIII
GENERAL
SECTION 8.1. GENERAL. This Agreement supersedes any prior agreement or
understandings between the parties with respect to the Company. This Agreement
and the rights of the parties hereunder shall be governed by and interpreted in
accordance with the laws of the State of Delaware. This Agreement may not be
amended or modified verbally, nor may any provision hereof be waived by any
party, but only by a written instrument duly executed by the Company and the
Member. Except as herein otherwise specifically provided, this Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and assigns. If any provision of this Agreement or the application
of such provision to any person or circumstance shall be held invalid, the
remainder provision or any other persons of circumstances, shall not be
affected thereby. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same document.
SECTION 8.2. ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof.
SECTION 8.3. RIGHTS OF CREDITORS AND THIRD PARTIES UNDER AGREEMENT. This
Agreement is entered into between the Company and the Member for the exclusive
benefit of the Company, the Member, and their successors and assigns. This
Agreement is expressly not intended for the benefit of any creditors of the
Company or any other Person. Except and only to the extent provided by
applicable law, no such creditor or third party shall have any rights under this
Agreement or any other agreement between the Company and the Member.
ARTICLE IX
INDEMNIFICATION; LIMITATION OF LIABILITY
SECTION 9.1. INDEMNIFICATION. The Company shall indemnify its Directors,
officers and members for expenses and liabilities to the fullest extent
permitted by the Act.
SECTION 9.2. LIMITATION OF LIABILITY. The Member's liability for the debts
and obligations of the Company shall be limited as set forth in the Act.
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