- the Member will cease to be a member of the Company;
- the assignee will automatically and simultaneously be admitted as the successor Member without any further action at the time the voluntary transfer or assignment becomes effective under applicable law; and
- the Company shall be continued without requiring a winding up.
Exculpation, Indemnification and Advancement
- For purposes of this Agreement, “Covered Person” means (i) the Member, whether acting in the capacity of owner, governing person, officer, employee, creditor or other relationship to the Company, and (ii) any Person with the power, whether through ownership of voting securities, by contract or otherwise, to direct the actions of the Member.
- A Covered Person shall not be liable to the Company for any loss, damage or claim arising out of any act or omission in the Covered Person’s capacity as a Covered Person or by reason of the fact that the Covered Person is or was a Covered Person (INCLUDING ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF THE COVERED PERSON’S NEGLIGENCE).
- Scope of Duties of Covered Persons.
- No Covered Person shall owe any fiduciary duty to the Company. Without limiting the scope of the preceding sentence, a Covered Person is expressly permitted to engage in or possess an interest in any business venture of any nature or description, independently or with others, similar or dissimilar to the business of the Company, and the Company shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Company, shall not be deemed wrongful or improper. The Covered Person shall not be obligated to disclose or present any particular opportunity to the Company even if that opportunity is of a character that, if disclosed or presented to the Company, could be taken by the Company, and the Covered Person shall have the right to take for the Covered Person’s own account (individually or as a partner, shareholder, fiduciary or otherwise) or to recommend to others any such particular opportunity. [DRAFTING NOTE: See Section III.K. of the Accompanying Article for a discussion of considerations related to articulating the duty of a Covered Person. The drafter should give careful consideration to what duty, if any, is appropriate in a specific transaction or relationship.]
Winding Up
- Events Requiring Winding Up. The Company shall be wound up only on the first to occur of any one or more of the following:
- the Written consent of the Member;
- the occurrence of any event that terminates the continued membership of the Member in the Company unless the legal representative or successor of the Member agrees to continue the Company and appoints a successor Member in accordance with the BOC; or
- entry of a judicial order to wind up the Company.
- If an event requiring the winding up of the Company occurs and is not revoked, the Member, acting as “Liquidating Agent,” as soon as practicable shall wind up the affairs of the Company and sell and/or distribute the assets of the Company. The Liquidating Agent is expressly authorized and empowered to execute any and all documents necessary or desirable to effectuate the liquidation and termination of the Company and the transfer of any assets. The Liquidating Agent shall apply and distribute the proceeds of the sale or liquidation of the assets and property of the Company in the following order of priority, unless otherwise required by nonwaivable provisions of applicable law:
- to pay (or to make provision for the payment of) all creditors of the Company (including Members who are creditors of the Company), in the order of priority provided by law or otherwise, in satisfaction of all debts, liabilities or obligations of the Company due its creditors;
- after the payment (or the provision for payment) of all debts, liabilities and obligations of the Company in accordance with clause (i) above, any balance remaining shall be distributed to the Member.
Miscellaneous Provisions and Definitions
- Entire Agreement. This Agreement supersedes all prior agreements and understandings by the Member with respect to the Company.
- The vote or written consent of the Member is required to amend the certificate of formation of the Company or this Agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the law of Texas.
- Binding Effect; No Third-Party Beneficiaries. This Agreement shall be binding upon, and, to the extent provided herein, inure to the benefit of, the Member and the spouse, heirs, devisees, executors, legal representatives, successors, and assigns of the Member. Article 9 of this Agreement shall also inure to the benefit of Covered Persons as defined therein. The Member acknowledges and agrees that this Agreement is intended to be binding upon and to inure to the benefit of the Company and that the provisions of this Agreement shall be enforceable by and against the Company. The obligations of the Company pursuant to this Agreement are the obligations of the Company only, and absent additional Written agreement, the Member has no personal liability for the obligations of the Company, including any obligations pursuant to Article 9 of this Agreement. No creditor of the Company or of a Member is entitled to or is intended to have third-party beneficiary status to enforce any obligation of any party under this Agreement.
- Certain Definitions and Construction.
- As used in this Agreement, the following terms have the following meanings:
- “Agreement” means this Company Agreement as it may be amended from time to time as provided herein.
- “Member” means the Person admitted to the Company as a Member as provided in this Agreement but excludes any such Person that has ceased to be a Member as provided in this Agreement or the BOC.
- “Person” means any individual, corporation, partnership, limited liability company, business trust or other entity, series of an entity, or government or governmental agency or instrumentality.
- “Writing” or “Written” means an expression of words, letters, characters, numbers, symbols, figures or other textual information that is inscribed on a tangible medium or that is stored in an electronic or other medium that is retrievable in a perceivable form. Unless the context requires otherwise, the term: (1) includes stored or transmitted electronic data, electronic transmissions, and reproductions of Writings; and (2) does not include sound or video recordings of speech other than transcriptions that are otherwise “Writings.”
- Terms defined in the singular have the corresponding meaning in the plural and vice versa.
- All pronouns and any variations thereof contained herein shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Person or Persons may require.
- The word “include” and its derivatives means “include without limitation.”
- References to Articles, Sections and Exhibits are to the specified Articles and Sections of, and Exhibits to, this Agreement unless the context otherwise requires. Each Exhibit to this Agreement is made a part of this Agreement for all purposes.
- References to statutes or regulations are to those statutes or regulations as currently amended and to the corresponding provisions as they may be amended or superseded in the future.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned Member has duly executed this Agreement as of the day and year first above written.
EXHIBIT A
NAME, ADDRESS AND CAPITAL
CONTRIBUTION OF INITIAL MEMBER
Name and Address
- As used in this Agreement, the following terms have the following meanings: