RWSCP/LLCOperatingAgreement-Markdown
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# Common terms and conditions
## Not registered securities
THE LIMITED LIABILITY COMPANY UNITS REFERRED TO HEREIN (THE “UNITS”) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”).
SUCH INTERESTS ARE BEING OFFERED OR SOLD UNDER THE EXEMPTION PROVIDED BY SECTION
4(2) OF THE 1933 ACT AND RULE 506 THEREUNDER NOR HAVE THEY BEEN REGISTERED UNDER
THE SECURITIES OR BLUE SKY LAWS OF ANY OTHER JURISDICTION.
A PURCHASER OF UNITS MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE INVESTMENT
FOR AN INDEFINITE PERIOD OF TIME BECAUSE THE UNITS HAVE NOT BEEN REGISTERED UNDER
THE 1933 ACT AND, THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY
REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE UNITS UNDER THE 1933 ACT.
## Entire Agreement
All parties agree that this Agreement is the final, complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous written
and oral agreements and communications relating to the subject matter of this Agreement.
This Agreement and its exhibits constitute the entire agreement between the parties.
Except as otherwise provided herein, no amendments to this Agreement shall be
binding upon any Member unless set forth in a document duly executed by such Member.
The parties will amend this agreement only by cosigned, written agreement.
## Binding Arbitration and waiver of rights
IF FOR ANY REASON THIS
ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
Any controversy, claim or dispute arising out of or relating to this
Agreement, shall be settled by binding arbitration in Pflugerville TX
at the companys primary place of business located at
17801 Richelle Cv, Pflugrvile TX, 78660 (also known as Charles house).
All such controversies, claims or disputes shall be settled in this manner
in lieu of any action at law or equity.
The following rights are irrevocably waived now and forever more:
* rights to sue in all possible venues
* trial by Judge
* trial by Judge/Jury
* trial by any other form either previously used, currently in use, or used in the future
* public or private disclosure of any Member conflict with the Company
Such arbitration shall be conducted in accordance with the then prevailing
commercial arbitration rules of American Arbitration Association
("**AAA**"), with the following exceptions if in conflict:
* one arbitrator shall be chosen by the AAA (the "**Arbitrator**");
* each party to the arbitration will pay its pro rata share of
the expenses and fees of the arbitrator, together with other expenses of the arbitration
incurred or approved by the Arbitrator;
* arbitration may proceed in the absence of any party if written notice (pursuant to the
Arbitrator's rules and regulations) of the proceeding has been given to
such party.
* The parties agree to abide soley by all decisions and awards rendered in such proceedings.
* Such decisions and awards rendered by the arbitrator shall be final and conclusive.
* The Arbitrator shall not have the right to award punitive damages or
speculative damages to either party and shall not have the power to
amend this Agreement.
## Ownership of Property and No Right of Partition
* A Member's interest in the Company shall be personal property for all purposes.
* No Member shall have any right to partition the property owned by the Company.
* The Membership Interest:
**IS NOT**
and
**SHALL NOT**
be considered community property at any time (including but not limited to):
* before the execution of this Agreement
* after this Agreement is executed
* while the Agreement is in effect
* after the Agreement is no longer in effect due to resignation or expulsion
* By signing this agreement, Member hereby agrees that:
* any and all rights
* any and all interests
under this agreement (and applicable law incorporated by reference) are hereby:
* suspended
* revoked
* rendered null and void now and forever more.
for any
* spouse
* significant other
* domestic partner
* any future lawful definition of a similar type of close/constant party
## Involvement of Members in Certain Proceedings
Should any Member become involved in legal proceedings unrelated to the
Company's business in which the Company is required to provide books, records, an
accounting, or other information, then such Member :
* shall indemnify the Company from all expenses incurred in conjunction therewith.
* Member agrees that this involvement in such a proceeding may be considered a:
* material breach of contract
* violation of Duty Of Care
* violation of Fidicuary Duty
and agrees that the Member may face immediate expulsion for exposing the Company
in such an irresonsible manner.
## No Third-Party Enforcement
Only the parties to this agreement may enforce rights under this agreement.
## Waiver
No consent or waiver, express or implied, by any Member of
any breach or default by any other Member in the performance by the
other Member of its obligations hereunder shall be deemed or construed
to be a consent or waiver to or of any other breach or default in the
performance by such other Member of the same or any other obligation
hereunder. Failure on the part of any Member to complain of any act or
to declare any other Member in default, irrespective of how long such
failure continues, shall not constitute a waiver of rights hereunder.
## Severability
If any provision of this Agreement or the application
thereof to any Person or circumstances shall be judged by
any court of competent jurisdiction to be unenforceable or invalid,
to any extent, and such invalidity or unenforceability does not destroy
the basis of the bargain between the parties, then the remainder of this
Agreement and the application of such provisions to other Persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
## Legal Relationship
The parties to this agreement remain independent parties. This agreement does not create any partnership, joint venture, agency,
or similar relationship between the parties.
## No Assignment or Delegation
* No party may assign any right or delegate any obligation under this agreement
* This Agreement is not assignable or transferable by Member
* Any attempt to assign or delegate will have no legal effect.
* No failure to exercise, and no delay in exercising, on the part of either party, any privilege,
any power or any rights hereunder will operate as a waiver thereof, nor will any single or
partial exercise of any right or power hereunder preclude further exercise of any other right
hereunder.
## Governing Law
This Agreement and the obligations of the Members
hereunder shall be construed and enforced in accordance with the laws of
the State of Texas, excluding any conflicts of law rule or principle
which might refer such construction to the laws of another state or
country.
## Signature
An electronically signed copy of this agreement delivered by e-mail or other electronic
means has the same legal effect as delivering a printed and signed original.
## Notices
* The parties shall send every notice, demand, consent, request, or other communication
required or allowed by this agreement by e-mail to the e-mail address the other party provided
with their signature
* All notices given in accordance with this Agreement shall be effective upon delivery
at the e-mail address of the addressee.
* By giving written notice thereof, each Member shall have the right from time to time to
change its address pursuant hereto.
## No Agreement to Employ
Nothing in this Agreement shall affect any right that Participant may have to be employed or to maintain employment or a similar relationship (if applicable) with the Company or with any affiliated entity.
## Captions, References
Pronouns wherever used herein, and of
whatever gender, shall include natural persons and corporations and
associations of every kind and character, and the singular shall include
the plural wherever and as often as may be appropriate. Article and
section headings are for convenience of reference and shall not affect
the construction or interpretation of this Agreement. Whenever the terms
"hereof," "hereby," "herein," or words of similar import are used in
this Agreement they shall be construed as referring to this Agreement in
its entirety rather than to a particular section or provision, unless
the context specifically indicates to the contrary. Any reference to a
particular "Article" or a "Section" shall be construed as referring to
the indicated article or section of this Agreement unless the context
indicates to the contrary.
## Place of Business and Office; Resident Agent
The address of the registered agent of the Company for service of process on the
Company in the State of Texas (and also the Company primary office)
is located at: 17801 Richelle Cv , Pflugerville TX, 78660
## Term
The term of the Company shall commence upon the filing of the
Certificate of Formation with the Texas Secretary of State and shall
have perpetual existence unless it shall be dissolved and its affairs
shall have been wound up as provided in Section Dissolution and Winding Up of Business.
## Qualification in Other Jurisdictions.
The Company may register in any other jurisdiction upon the approval of the Board Of Directors.
## No State Law Partnership.
The Company shall not be a partnership or
joint venturer under any state or federal law, and no Member or Director
shall be a partner or joint venture of any other Member or Director for
any purposes; other than under the Code or other applicable tax laws,
and this Agreement may not be construed otherwise.
## General Restrictions on Dispositions of Membership Interests
A Member may not make an assignment, transfer or
other disposition (voluntarily, involuntarily or by operation of law) (a
"**Transfer**") of all or any portion of his or her Membership Interest,
nor pledge, mortgage, hypothecate, grant a security interest in, or
otherwise encumber (an "**Encumbrance**") all or any portion of its
Membership Interest,
Any attempted Transfer of all or any portion of a Membership Interest,
shall be void and result in the immediate (no vote required) expulsion
of the Member and forefiture of Member interest.

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#Profit Interests
## Prohibition on Transfer of Profits Interest Units
The Profits Interest Units acquired pursuant to this Agreement may not be transferred,
sold, pledged, hypothecated or otherwise disposed of, voluntarily or involuntarily, by
operation of law or otherwise,
## Investment Representations
Participant acknowledges that he or she is aware that the Profits Interest Units issued
to him by the Company pursuant to this Agreement have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), on the basis of certain exemptions
from such registration requirement. In this connection,
## Section 83(b) Election.
Participant shall execute and deliver to the Company with this executed Agreement,
a copy of the Acknowledgment and Statement of Decision Regarding Election Pursuant
to Section 83(b) of the Internal Revenue Code (the “Acknowledgment”) substantially in
the form attached hereto.
Participant shall execute and submit with the Acknowledgment a copy of the Election Pursuant
to Section 83(b) of the Internal Revenue Code, substantially in the form attached hereto
if Participant has indicated in the Acknowledgment his or her decision to make such an election.
Participant represents that Participant is not relying on the Company with respect to
such decision and has consulted any tax consultant(s) that Participant deems advisable in
connection with the filing of an election under Section 83(b) of the Code and
similar tax provisions.
Participant acknowledges that it is Participant’s sole responsibility and not the Company’s to
timely file an election under Section 83(b) of the Code, even if Participant requests that the
Company or any representative of the Company make such filing on Participant’s behalf.
Participant should consult his or her tax advisor to determine if there is a comparable election
to file in the state of his or her residence and whether such filing is desirable under the
circumstances.
## Taxes
The Company and Party intend that (i) the Profits Interest Units be treated as “profits interests” within the meaning of the Code, Treasury Regulations promulgated thereunder, and any published guidance by the Internal Revenue Service with respect thereto, including, without limitation, Internal Revenue Service Revenue Procedure 93-27, as clarified by Internal Revenue Service Revenue Procedure 2001-43, (ii) the issuance of such interests not be a taxable event to the Company or Participant as provided in such Revenue Procedure, and (iii) the Agreement be interpreted consistently with such intent.
In furtherance of such intent, effective immediately prior to the issuance of the Profits Interest Units, the Company will cause the Gross Asset Value (as defined in the Agreement) of all Company assets to be adjusted to equal their respective gross fair market values, and make the resulting adjustments to the Capital Accounts of the Members, in each case as set forth in the Agreement.
The Company may withhold from Participant’s wages, or require Participant to pay to the Company, any applicable withholding or employment taxes resulting from the issuance of the Profits Interest Units hereunder, from the vesting or lapse of any restrictions imposed on the Profits Interest Units, or from the ownership or disposition of the Profits Interest Units.
## Code Section 409A
The Profits Interest Units are not intended to constitute or provide for “nonqualified deferred compensation” within the meaning of Section 409A of the Code (“Section 409A”), and, provided that Section 409A of the Code, Treasury Regulations and related Department of Treasury guidance do not require otherwise, the Company shall not treat the Profits Interest Units as nonqualified deferred compensation. However, notwithstanding any other provision of this Agreement, if at any time the Board Of Directors determine that the Profits Interest Units may be subject to Section 409A, the Board Of Directors
shall have the right, in their sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and actions with retroactive effect) as the Board Of Directors determine are necessary or appropriate for the
Profits Interest Units to be exempt from the application of Section 409A or to comply with the requirements of Section 409A; provided, however, if such action would diminish the value of the Profits Interest Units, such action may not be taken without Members written consent.
## ACKNOWLEDGMENT AND STATEMENT OF DECISION REGARDING ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE
The undersigned, a Member of the “Company” and holder of Profits Interest
in the Company designated as “Profits Interest Units” (the “Award”) of the Company,
hereby states, as of the date of issuance of the Award, as follows:
1. The undersigned acknowledges receipt of a copy of the Agreement. The undersigned has carefully reviewed the Agreement.
2. The undersigned either [check as applicable]:
____ (a) has consulted, and has been fully advised by, the undersigned’s own tax advisor, __________________________________________, whose business address is ________________________________, regarding the federal, state and local tax consequences of being issued the Award under the Agreement, and particularly regarding the advisability of making elections pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”), and pursuant to the corresponding provisions, if any, of applicable state laws; or
____ (b) has knowingly chosen not to consult such tax advisor.
3. The undersigned hereby states that the undersigned either [check as applicable]:
_____ (a) has decided to make an election pursuant to Section 83(b) of the Code and is submitting to the Company, together with the undersigned’s executed Agreement, a copy of an executed election form which is attached to the Agreement; or
____ (b) has knowingly chosen not to make an election pursuant to Section 83(b) of the Code.
4. Neither the Company nor any subsidiary or representative of the Company has made any warranty or representation to the undersigned with respect to the tax consequences of the issuance of the Award to the undersigned pursuant to the Agreement or of the making or failure to make an election pursuant to Section 83(b) of the Code or corresponding provisions, if any, of applicable state law.
5. The undersigned is also submitting to the Company, together with the Agreement, a copy of an executed election form, if an election is made, of the undersigned pursuant to provisions of state law corresponding to Section 83(b) of the Code, if any, which are applicable to the issuance of the Award to the undersigned pursuant to the Agreement.
ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE TO INCLUDE IN GROSS
INCOME THE EXCESS OVER THE PURCHASE PRICE, IF ANY, OF THE VALUE OF PROPERTY TRANSFERRED
IN CONNECTION WITH SERVICES
The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in the undersigned’s gross income for the taxable year the excess (if any) of the fair market value of the property described below, over the amount the undersigned paid for such property, if any, and supplies herewith the following information in accordance with the Treasury regulations promulgated under Section 83(b):
1. The undersigned’s name, address and taxpayer identification (social security) number are:
Name:
Address:
TIN:
2. The property with respect to which the election is made consists of
[•] Units in the Company designated as “Profits Interest Units” (the “Award”) of the Company representing an interest in the future profits, losses and distributions of the Company.
3. The date on which the above property was transferred to the undersigned was [•], and the taxable year to which this election relates is [•].
4. The above property is subject to the following restrictions:
(a) forfeiture and/or a right of repurchase by the Company if the undersigned ceases
to be an employee of, or consultant or service provider to, the Company under certain circumstances pursuant to the LLC Agreement of the Company, as amended from time to time (the “LLC Agreement”), and
(b) certain other restrictions pursuant to the LLC Agreement should the undersigned wish to transfer the Award (in whole or in part).
5. The fair market value of the above property at the time of transfer (determined without regard to any restrictions other than those which by their terms will never lapse) is $0.
6. The amount paid for the above property by the undersigned was $0.
7. A copy of this election has been furnished to the Company, and the original will be filed with the income tax return of the undersigned to which this election relates.

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* LICENSE (gplv3. viral. we ain't gonna let nobody hijack our hard work we're releasing to all you fine folk!) * LICENSE (gplv3. viral. we ain't gonna let nobody hijack our hard work we're releasing to all you fine folk!)
* README.md (this file) * README.md (this file)
## Merge / TODO
- Merge the following series language:
```
series language
Notice of Limitation on Liability of Series
The Company Agreement may establish or provide for the establishment of one or more designated series of members, managers, membership interests, or assets that (1) has separate rights,
powers, or duties with respect to specified property or obligations of the Company or profits and losses associated with specified property or obligations, or (2)
has a separate business purpose or investment objective.
Subject to the provisions of the Texas Business Organizations Code (1) the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with
respect to a particular series shall be enforceable against the assets of that series only, and shall not be enforceable against the assets of the Company generally
or any other series, and (2) none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the Company generally –
or any other series – shall be enforceable against the assets of a particular series.
Specific series of assets shall be separately labeled or enumerated in such a manner as to identify each series’ assets, structure, and operations.
Pursuant to §101.614 of the Texas Business Organizations Code, and as ore fully set forth in the Company Agreement,
a specific series and its business and affairs ay be wound up and terminated without causing the winding up of the Company.
The winding up of a series shall not affect the litigation of liability of members and managers of other series or the Company at large.
```
- Update RR/Subo LLC Operating Agreements using fairshares model
- Contract execution
- NDA
- Updated operating agreement
- Non compete
- Invention Assignment
- anything else needed from <http://siliconhillslawyer.co/startup-formation-issues/> <http://siliconhillslawyer.co/2013/05/01/austin-startup-form-yourself-avoid-crappy-lawyers/>
- Finish federal government registration for all entities
| Task | Notes |
| ---------- | ----- |
| SBIR Reg | |
| NASA SBIR | |
| Grants.gov | |
| DOD SBIR | |
| SAM | |
| NSF | |
| Grants.gov | |
| DOD SBIR | |
| DHS SBIR | |
| DOE | |
| Entity Name | Bank Account | Online Banking | Stripe | Paypal | Fileshare | State Tax Filing | Federal Tax Filing | EIN | EIN no dash | Other Federal Filings | Sales tax & Use Permit |
|----------------|--------------|------------------|---------|---------|-----------|------------------|--------------------|------------|-------------|-----------------------|------------------------|
| Subo LLC | Y | Y | Y | Y | Y | Y | | 84-2245901 | 842245901 | | Y |
| RackRental LLC | Y | Pending Amp call | Blocked | Blocked | Y | Y | | 84-2251518 | 842251518 | | Y |
| RWSCP Series | N/A | N/A | N/A | N/A | Y | N/A | N/A | | | | N/A |
| RWSCP BDC Inc | N/A | N/A | N/A | N/A | Y | | | | | | N/A |
| AFABN INC | N/A | N/A | N/A | N/A | Y | Y | | 84-1825176 | 841825176 | N/A | N/A |
| SDSG 501c4 INC | N/A | N/A | N/A | N/A | Y | Y | | | | N/A | N/A |
| SDG PAC INC | N/A | N/A | N/A | N/A | Y | Y | | 84-1855678 | 841855678 | | N/A |
| HFNOC Series | N/A | N/A | N/A | N/A | Y | N/A | N/A | | | N/A | N/A |
| Axios Series | Y | Y | Y | Y | Y | Y | Y | | | | Y |
#### Bizops Marketing
| Brand Name | Webstats | Facebook Page | Instagram | Twitter | Reddit | Cross Social Integration | WP tech | WP social integration | Mautic |
| ------------------ | -------- | ------------- | --------- | ------- | ------- | ------------------------ | ------- | --------------------- | ------- |
| Suborbital Systems | Y | Y | Y | Y | Y | | Y | | |
| RackRental.net | Y | Y | Y | Y | recover | | Y | | |
| RWSCP | Y | Y | Y | Y | Y | | Y | | |
| AFABN | Y | Y | Y | Y | Y | | Y | | |
| SDG | Y | Y | Y | Y | Y | | Y | | |
| HFNOC | Y | Y | Y | Y | Y | | Y | | |

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# Introduction
In order to form a limited liability company pursuant to and in
accordance with the Texas Business Organization Code (BOC), as amended
from time to time, the Members hereby agree as follows
# Outside Capital Raising
## Non Equity and Non Debt based
Capital will be primarily sought through the pursuit of R&D funding from (but not
limited to):
* Department Of Defense SBIR
* NSF Seed Fund
* Department Of Homeland Security SBIR
* NASA SBIR
* other similiar United States Federal Government funding vehicles
## Restrictions on Capital Sources
* At no time shall capital be raised from non US funding sources.
* At no time shall capital be raised from non-accredited investors.
## Equity Based Raises
### General Conditions and Requirements
Any grant of equity in exchange for outside capital investment in the Company
shall be on the following (or substantially similiar) terms and conditions ,
and require unamious written consent of the Members and the Board Of Directors.
### Terms and Conditions
[PUBLIC] Earnest Shared Earnings Agreement v1.3
SHARED EARNINGS AGREEMENT BETWEEN EARNEST CAPITAL AND Company.
Date
The following is a summary of the principal terms with respect to the proposed financing of _______________ (the “Company”). Except for the section entitled “Confidentiality,” this summary of terms does not constitute a legally binding obligation. The parties intend to enter into a legally binding obligation only pursuant to definitive agreements to be negotiated and executed by the parties.
Amount of Investment
$___________
Shared Earnings
By the 10th day of each quarter, the Company will pay the Investor the Percentage
(as defined below) of: the Company's Founder Earnings (as defined below)
less the proportional Founder Earnings Threshold (as defined below),
in the preceding quarter.
Shared Earnings shall continue until the Investor has received the Shared Earnings Cap.
The Percentage
The Percentage shall be ___%.
Net Income
Net Income means net income determined in accordance with GAAP.
Founder Earnings
Founder Earnings means Net Income, adding back any founders' salaries.
Founder Earnings Threshold
$________ per founder per year.
Shared Earnings Cap
The Shared Earnings Cap will be __X the investment amount.
Equity Basis
The Equity Basis will be the greater of (i) any unpaid portion of the Shared Earnings Cap,
or (ii) the Amount of Investment.
Equity Conversion
The Investor has the right, at its option, to convert the Equity Basis into the shares
sold by the Company in its next fixed-price round of financing, at a price per share
equal to the lesser of
(i) the price of the securities sold in the next financing,
or (ii) at a price per share calculated by dividing the Valuation Cap (defined below)
by all issued and outstanding shares plus all shares reserved for issuance
under any equity incentive plan at the time of the closing of the next financing.
Valuation Cap
$_____________
Sale
On a sale of the Company, the Investor is entitled to receive the
greater of
(i) any unpaid amount of the Shared Earnings Cap or
(ii) the amount the Investor would be entitled to receive if it converted the Equity Basis
at the Valuation Cap.
Information Rights
The Investor is entitled to standard information and inspection rights including any
records of accounting necessary to verify Shared Earnings calculations.
Board Observer
The Investor will be entitled to attend Board Meetings as an observer upon its request,
subject to executing a standard form observer confidentiality agreement.
Participation Rights
The Investor will have the right to participate on a pro rata basis in subsequent
issuances of Membership Interests, subject to customary exclusions.
Confidentiality
Without the consent of the Investor, the Company shall not disclose these terms to
anyone other than the Company's officers, directors, and key service providers.
COMPANY:
Name:
Title:
Date:
INVESTOR:
Name:
Title:
Date:
# Creation of Additional Membership Interests
Additional Membership Interests may be created and issued to existing or new
Members or Persons, and such other Persons may be admitted to
the Company as Members in one or more classes, with the unanimous written
conset of the Board Of Directors, and all Company Members on such terms and
conditions as the Board Of Directors and Company Members may approve at
the time of admission.
The creation of new Membership Interests, the
admission of any new Members, or the creation of any new class or group
of Members in accordance with this Agreement may
* (i) result in the dilution of the Sharing Ratios of existing Members
* (ii) be reflected as an amendment to this Agreement or a Supplement which shall
be valid if executed by the entirety of the Board Of Directors, all existing
Company Members and the new Member.
# Rights to Company Information
In addition to the other rights specifically
set forth in this Agreement, each Member is entitled to the following
information under the circumstances and conditions set forth in the BOC:
* true and full information regarding the status of the business and
financial condition of the Company
* promptly after becoming available, a copy of the Company's federal,
state and local income tax returns for each year
* a current list of the name and last known business, or mailing address
of each Member and Director
* a copy of this Agreement ,the Company's Certificate of Formation, and all amendments to
such documents
* true and full information regarding the amount of cash and a description and statement
of the agreed value of any other property or services contributed by
each Member and which each Member has agreed to contribute in the
future, and the date on which each became a Member
* other information regarding the affairs of the Company to which that
Member is entitled pursuant to the BOC (including all the Company books and
records)
# Liability to Third Parties
No Member or Director, solely by reason of being a
member or Director, shall be liable for the debts, obligations, or liabilities of
the Company.
# Management of the Company
## Member authority
Company Members shall be fully empowered and authorized to
implement the terms and provisions of the Board Of Directors approved
Business Plan and Annual Budget on behalf of the Company, subject to the
limitations set forth in Section "Major Decisions".
The Company may rely upon any action taken or document executed by the
any Officer without duty of further inquiry and may assume that such
Officer has the requisite power and authority to take the action or
execute the document in question.
## Annual requirements of members
Not later than February 1 of each year, the Members shall
deliver to the Board Of Directors a detailed proposed business plan (the
"**Business Plan**") for the Company's next succeeding fiscal year,
which shall include the proposed budget for such year (the "**Annual
Budget**").
## Business Plan and Annual Budget
The Business Plan and Annual Budget shall contain such other information
as the Members wishes to include and shall contain such
information as the Board Of Directors may request.
The Board Of Directors will review the proposed Annual Budget and Business Plan,
and subject to required revisions, approve the same for the next succeeding
fiscal year no later than February 15 of each year.
The Business Plan and Annual Budget shall include projected revenues,
expenses for the year in question, projected investment activities and
such other matters as the Members and Board Of Directos may deem appropriate.
If the Annual Budget provides for a contingency or similar line item, then
unless otherwise specifically provided to the contrary therein, the
Members shall be empowered to expend the amount set forth in such
line item for the Company obligations. If the Business Plan is not
approved by the date set forth above, then:
* any items or portions thereof that have been approved will become operative
immediately
* with respect to the Annual Budget, the Members may expend,
in respect of noncapital or recurring expenses in any quarter of the
then current calendar year, an amount equal to the budget amount for the
corresponding quarter of the immediately preceding calendar year, as set
forth on the last approved Annual Budget after giving effect to any
material changes to the Company or its properties during the prior year;
however, if any contract approved as a part of any prior approved Annual
Budget or Business Plan provides for automatic increases in costs
thereunder after the beginning of the then current calendar year, then
the Members may expend the amount of that increase.
Following submission and recording of the final version of the
Business Plan and Annual Budget, the Members shall be authorized
to take the actions, incur obligations and make the expenditures therein
expressly set forth. The Members shall not have any authority or
power to take any action on behalf of the Company that would
constitute a Major Decision, unless it has been
expressly approved in writing by the Board Of Directors.
## Compensation of Members
Except as otherwise specifically provided herein, no compensatory payment shall be made by
the Company to any Member for the services to the Company.
## Officers
The Board Of Directors may from time to time, designate
one or more Persons to be officers or agents of the Company (an
"**Officer**"). Any Officer so designated shall have such title and
authority and perform such duties as the Board Of Directors may, from
time to time, designate. Unless the Board Of Directors decides
otherwise, if the title is one commonly used for officers of a business
corporation, the assignment of such title shall constitute the
delegation to such Officer of the authority and duties that are normally
associated with that office, subject to any specific delegation of
authority and duties made to such Officer by the Board Of Directors.
Each Officer shall hold office until his successor shall be duly
designated and shall qualify or until his death or until he shall resign
or shall have been removed. The salaries or other compensation, if any,
of the Officers and agents of the Company shall be fixed from time to
time by the Board Of Directors. Any Officer may resign as such at any
time. Any Officer may be removed as such, with or without Cause, by the
Board Of Directors. Designation of an Officer shall not, in and of
itself, create contract rights.
# Duty of care
Each Member shall discharge their duties in a good and proper manner
as provided for in this Agreement. Each Member, on behalf of the
Company shall enforce agreements entered into
by the Company and conduct or cause to be
conducted the ordinary business and affairs of the Company in
accordance with good industry practice and the provisions of this
Agreement.
# Time and Capital Requirements of members
No Member shall be required to devote a particular
amount of time or capital to the Company's business,
but shall devote sufficient time to perform their duties hereunder.
# Indemnification; Reimbursement of Expenses; Insurance
To the fullest extent permitted by law, and subject to the limitations set
forth in this Section, and with, in each case, the Board Of Directors
prior approval:
* the Company may (at the Members sole discretion) indemnify each Director
or Member for any Adverse Consequences
that a Director or Member may suffer including, but not limited to, any
Director, or Member who, is to be made a party to any pending or
completed action, suit or proceeding ("**Proceeding**"), any appeal
therein, or any inquiry or investigation preliminary thereto, solely by
reason of the fact that he or she is or was a Director, Member and was
acting within scope of duties or under the authority of the Company and
was not in breach of agreements or violating fiduciary responsibility
as determned by the Members;
* the Company may (at the Members sole discretion) pay a Director or Member for expenses
incurred by him or her:
(1) in advance of any deposition of a Proceeding to which such Director or Member is a party, and
(2) in connection with his or her appearance as a witness or other participation in any
Proceeding.
Such indemnification may also include counsel fees.
The Company may indemnify and advance expenses to an employee or agent of the Company to
the same extent and subject to the same conditions under which it may
indemnify and advance expenses to the Director or Members under the
preceding sentence.
The provisions of this Section shall not be exclusive of any other right
under any law, provision of the Certificate or this Agreement, or otherwise.
Notwithstanding the foregoing, this indemnity shall not apply to actions constituting :
* gross negligence
* simple negligence
* willful misconduct
* bad faith
* involving a material or fiduciary breach of this Agreement or the duties set forth herein,
* any other reason in the Members and/or Board Of Directors discretion
which reason, in the Board Of Directors or Members reasonable opinion, causes a substantial
loss to the Company.
## Option to Purchase Insurance
The Company may purchase and maintain insurance to protect itself and any
Director, Member, employee or agent of the Company, whether or not the
Company would have the power to indemnify such Person under this Section.
## Limits of Coverage
This indemnification obligation shall be limited to $1,000.00 and no Member
shall be required to make a Capital Contribution in respect thereof.
# Accounts and Records
## Records and Accounting; Reports; Fiscal Affairs
Proper and complete records and books of accounting of the business of the Company,
including a list of names, addresses and interests of all Members, shall
be maintained under the direction of the Board Of Directors at the
Company's principal place of business. Each Member or his or her duly
authorized representative may examine the books of account of the
Company records, reports and other papers regarding the business and
financial condition of the Company, make copies and extracts therefrom
at such Member's expense, and discuss the affairs, finances and accounts
of the Company with independent public accountants of the Company, all
at such reasonable times and as often as may be reasonably requested.
The books and records of the Company shall be kept on a cash basis in
accordance with generally accepted accounting principles applied on a
consistent basis, and in all events shall conform with Generally
Accepted Accounting Policies and Procedures.
## Fiscal Year End
The fiscal year end of the Company shall be December 31.
## Keeper of the Books
At all times during the term of existence of
the Company, and beyond that term if deemed by Board Of Directors to be
necessary, the CFO shall keep or cause to be kept the books of accounts
referred to in this section and the following:
* A current list of the full name and last known business or
residence address of each Member and Director, together with the
Capital Contribution and the share in Profits and Losses of each Member;
* A copy of the Certificate of Formation, as amended;
* Executed counterparts of this Agreement, as amended;
* Executed Supplements and Consents, if any;
* Any powers of attorney under which the Company takes action;
* Copies of the Company's federal, state, and local income tax or
information returns and reports, if any, for the six (6) most recent
taxable years;
* Financial statements of the Company for the six (6) most recent
fiscal years; and
* All Company records as they relate to the Company's internal
affairs for the current and past four (4) fiscal years.
## Member Examination of Records
Each Member, at its expense and under
the circumstance and conditions set forth in the BOC, may at all
reasonable times during usual business hours, audit, examine and make
copies of account records, files and bank statements of the Company.
Such right may be exercised by any Member or by its designated agents or employees.
## Bank Accounts
All funds of the Company shall be deposited in one or
more accounts with one or more recognized financial institutions in the
name of the Company, at such locations as shall be determined by the
Board Of Directors and CFO. Withdrawal from such accounts shall require
the signature of such Person or Persons as the Board Of Directors and
Members jointly designate.
## Members' Tax Requirements
Within fifteen (15) days after the end of
each taxable year, the Company shall forward to each Member all
information necessary for the Members to complete their federal and
state income tax or information returns, and a copy of the Company's
federal, state, and local income tax or information returns for such
year.
# Capital Contributions and Finance
## Membership Records
The
* name
* e-mail address
* Capital Contributions
* Percentage Interest
of each of the Members is set forth in Supplement 4.
## Capital Contribution
The Board Of Directors and Members
shall determine if Capital Contributions are required to enable the Company
to invest in any Investment Entity or to operate its business. No Member
shall have any obligation to make any Capital Contribution.
Notwithstanding the foregoing, Company members, in their sole
and absolute discretion, may at any time elect
to fund or not fund further Capital Contributions with respect to the
Company or any Investment, Investment Entity, without any
liability whatsoever to the Company or any Member, even if such failure
to contribute results in the loss of any opportunity or the forfeiture
of any Investment or interest in any Investment Entity, or results in
any other penalty or liability.
## Return of Contributions
Except as expressly provided herein, no
Member shall be entitled to the return of any part of its Capital
Contributions, to be paid interest in respect of either its Capital
Account or any Capital Contribution made by it or paid for the fair
market value of its Membership Interest upon withdrawal or otherwise.
Unrepaid Capital Contributions shall not be a liability of the Company,
or of any Member.
No Member shall be required to contribute or lend any cash or property
to the Company to enable the Company to return any Member's Capital Contributions.
## Member Guaranties
No Member shall undertake to guarantee or otherwise become liable for any obligation
of the Company, or any Investment Entity.
# Investments
Investments. All Investments by the Company shall be made on such
terms and conditions as the Board Of Directors and Members may determine.
# Distributions to Members
## Distributions in General
From time to time, but not less often than
monthly, the CEO and CFO shall determine (i) the amount, if any, by
which the Company's funds then on hand exceed the Reserve Amount (such
excess being referred to herein as "**Excess Funds**").
If the CEO and CFO determines that there are
Excess Funds subject to distribution but that additional Capital Contributions
will be required for future Company needs within the next two
(2) calendar month period, then the CEO and CFO may elect to not make
a distribution of such Excess Funds.
Not later than the 15th day of each calendar month, the Excess Funds derived
from the business shall be distributed to the Company Members in accordance with
their Sharing Ratios.
## Withholding
The Company may withhold distributions or portions
thereof if it is required to do so by any applicable rule, regulation,
or law, and each Member hereby authorizes the Company to withhold from
or pay on behalf of or with respect to such Member any amount of
federal, state, local or foreign taxes that the Board Of Directors, CEO
and CFO reasonably determines that the Company is required to withhold
or pay with respect to any amount distributable or allocatable to such
Member pursuant to this Agreement. Any amounts so paid or withheld with
respect to a Member pursuant to this Section shall be treated as having
been distributed to such Member and shall reduce any amounts otherwise
distributable to such Member (either currently or in the future)
pursuant to Section "Distributions to Members" or Section
"Withdrawl, Dissolution, Liquidation and Termination".
#
The Company desires to issue Units in respect of Series I of the Company designated as “Profits Interest Units” to Participant in connection with Participant’s performance of services to or for the benefit of the Company.
# Withdrawal, Dissolution, Liquidation and Termination
## Dissolution, Liquidation, and Termination Generally
The Company shall be dissolved upon the first to occur of any of
the following:
* The sale or disposition of all assets of the Company and the receipt, in cash, of all consideration therefor, and the determination of the Board Of Directors and all Members not to continue the business of the Company directly or through an Investment Entity
* The occurrence of any event which, as a matter of law, requires that the Company be dissolved.
## Liquidation and Termination
Upon dissolution of the Company such Person as the Board Of Directors
may designate shall act as liquidator. The liquidator shall
proceed diligently to wind up the
affairs of the applicable Company and make final distributions
as provided herein. The costs of liquidation shall be a Company
expense, as applicable. Until final distribution, the liquidator
shall continue to operate the Company with all of the power
and authority of the Board Of Directors, as applicable
hereunder. The steps to be accomplished by the liquidator are as
follows:
* as promptly as possible after dissolution and again after final
liquidation, the liquidator shall cause a proper accounting to be made
by a firm of certified public liquidator, which shall cause a proper
accounting to be made by a firm of certified public accountants
acceptable to the Board Of Directors of the Company's
assets, liabilities, and operations through the last day of the
calendar month in which the dissolution shall occur or the final
liquidation shall be completed, as applicable
* the liquidator shall cause the Company to
satisfy all of the debts and liabilities of the Company and
(whether by payment or the making of reasonable provision for payment
thereof)
* all remaining assets of the Company shall be distributed
to the Members as follows:
* (a) the liquidator may sell any or all applicable Company
property and the sum of:
* (b) any resulting gain or loss from each sale plus
* (c) the fair market value of such property that has not been sold
shall be determined and (notwithstanding the provisions of Section
Capital Accounts income, gain, loss, and deduction inherent in such
property (that has not been reflected in the Capital Accounts
previously) shall be allocated among the Members to the extent possible
to cause the Capital Account balance of each Member to equal the amount
distributable to such Member under this Section.
* Company property as applicable shall be distributed to
the Members as provided in Section "Distributions to Members".
## Deficit Capital Accounts.
No Member shall be required to pay to the
Company, to any other Member or to any third party any deficit
balance which may exist from time to time in the Member's Capital
Account.
## Cancellation of Certificate.
In the case of the dissolution,
liquidation and termination of the Company, on completion of the
distribution of Company assets, the Board Of Directors (or such other
Person as the BOC may require or permit) shall file a Certificate of
Cancellation with the Secretary of State of Texas, cancel any other
filings made pursuant to Section "Qualification in Other Jurisdictions".
and take such other actions as may be necessary to
terminate the existence of the Company. In the case of the dissolution,
liquidation and termination of the Company, the CEO shall file such
certificates as may be required by the BOC or other law in respect
thereof.
# Board Oversight of the Company
The Company itself and it's Members shall be overseen by Indepdent Directors, to be known as the “For Profit Committee”. The committee shall be governed by
the For Profit Committee Charter. Changing the Committee Charter requires a unamious vote of written consent by the LLC members.
### Profits, Losses and Distributive Shares of Tax Items
### Members Bound
Members shall be bound by the provisions of this Section in reporting their shares of Company income for income tax purposes.
### Tax Returns
The Board Of Directors shall cause to be prepared and filed all
necessary federal and state income tax returns for the Company,
including making the elections described in Section "Tax Elections".
Each Member shall furnish to the Board Of Directors all pertinent
information in its possession relating to Company operations that is
necessary to enable such income tax returns to be prepared and filed.
### Tax Elections.
The following elections shall be made on the appropriate returns of the Company:
* to adopt the calendar year as the Company's fiscal year;
* to keep the Company's books and records on the income-tax method;
* if there is a distribution of Company property as described in
section 734 of the Code or if there is a transfer of a Company interest
as described in section 743 of the Code, upon written request of any
Member, to elect, pursuant to section 754 of the Code, to adjust the
basis of Company properties; and
* to elect to amortize the organizational expenses of the Company
ratably over a period of twelve (12) or sixty (60) months as permitted by section
709(b) of the Code.
No election shall be made by the Company or any Member to be excluded
from the application of the provisions of subchapter K of chapter 1 of
subtitle A of the Code or any similar provisions of applicable state
laws.
### Tax Matters Partner.
The Board Of Directors and CFO collectivley shall be the "**tax matters partner**"
of the Company pursuant
to section 6231(a)(7) of the Code. As
tax matters partner, they shall take such action as may be
necessary to cause each other Member to become a "**notice partner**"
within the meaning of section 6223 of the Code. Such Member shall inform
each other Member of all significant matters that may come to its
attention in its capacity as tax matters partner by giving notice
thereof within ten days after becoming aware thereof and, within such
time, shall forward to each other Member copies of all significant
written communications it may receive in such capacity. Such Member
shall not take any action contemplated by sections 6222 through 6232 of
the Code without the consent of the Board Of Directors. This provision is not
intended to authorize such Member to take any action left to the
determination of an individual Member under sections 6222 through 6232
of the Code.
### Allocations on Transfer of Interests.
The Company income, gain,
loss or deduction allocable to any Member in respect of any interest in
the Company which may have been transferred shall be allocated during
such year based upon an interim closing of the Company's books as
described in the first sentence of Treasury Regulations §
1.706-1(c)(2)(ii), taking into account the actual results of Company
operations during the portion of the year in which such Member was the
owner thereof, and the date, amount and recipient of any distribution
which may have been made with respect to such interest.
#######################################################
The Profits Interest Units below are issued to Party on the terms and conditions set forth in this Agreement.
Party shall make no Capital Contribution to the Company in connection with the
Profits Interest Units issued hereunder and, as a result,
Parties Capital Account balance in the Company immediately after their receipt of
the Profits Interest Units shall be equal to zero.
Notwithstanding anything to the contrary contained in the LLC Agreement or set forth herein, with respect to the rights of Party related to, in respect of and in connection with the Company, Board Of Directors and other Members, Party and the Profits Interest Units owned thereby shall have only a right to share in or be allocated Net Profits and Net Losses and receive or share in distributions of the Company as set forth in the Agreement.
Party agrees to execute a counterpart signature page to the Agreement, in the form
attached hereto and shall thereupon become a Member as of the Effective Date.
The Profits Interest Units acquired pursuant to this Agreement shall be fully
subject to the terms and conditions contained in this Agreement, and Party
hereby acknowledges that Participant has read and understands the terms and conditions contained therein.
# Closing
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this
* Company NDA
* Company IP Assignment
* Company Operating Agreement
# Signature Page
The parties sign this Agreement on the date below by their electronic signatures.