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CommonBoilerplate/.Disolution.md.swp
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CommonBoilerplate/.Disolution.md.swp
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93
CommonBoilerplate/AccountsAndRecords.md
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CommonBoilerplate/AccountsAndRecords.md
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# Accounts and Records
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## Records and Accounting; Reports; Fiscal Affairs
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Proper and complete records and books of accounting of the business of the Company,
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including a list of names, addresses and interests of all Members, shall
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be maintained under the direction of the Board Of Directors at the
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Company's principal place of business. Each Member or his or her duly
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authorized representative may examine the books of account of the
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Company records, reports and other papers regarding the business and
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financial condition of the Company, make copies and extracts therefrom
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at such Member's expense, and discuss the affairs, finances and accounts
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of the Company with independent public accountants of the Company, all
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at such reasonable times and as often as may be reasonably requested.
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The books and records of the Company shall be kept on a cash basis in
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accordance with generally accepted accounting principles applied on a
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consistent basis, and in all events shall conform with Generally
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Accepted Accounting Policies and Procedures.
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## Fiscal Year End
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The fiscal year end of the Company shall be December 31.
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## Keeper of the Books
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At all times during the term of existence of
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the Company, and beyond that term if deemed by Board Of Directors to be
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necessary, the CFO shall keep or cause to be kept the books of accounts
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referred to in this section and the following:
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* A current list of the full name and last known business or
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residence address of each Member and Director, together with the
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Capital Contribution and the share in Profits and Losses of each Member;
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* A copy of the Certificate of Formation, as amended;
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* Executed counterparts of this Agreement, as amended;
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* Executed Supplements and Consents, if any;
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* Any powers of attorney under which the Company takes action;
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* Copies of the Company's federal, state, and local income tax or
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information returns and reports, if any, for the six (6) most recent
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taxable years;
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* Financial statements of the Company for the six (6) most recent
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fiscal years; and
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* All Company records as they relate to the Company's internal
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affairs for the current and past four (4) fiscal years.
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## Member Examination of Records
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Each Member, at its expense and under
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the circumstance and conditions set forth in the BOC, may at all
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reasonable times during usual business hours, audit, examine and make
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copies of account records, files and bank statements of the Company.
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Such right may be exercised by any Member or by its designated agents or employees.
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## Bank Accounts
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All funds of the Company shall be deposited in one or
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more accounts with one or more recognized financial institutions in the
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name of the Company, at such locations as shall be determined by the
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Board Of Directors and CFO. Withdrawal from such accounts shall require
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the signature of such Person or Persons as the Board Of Directors and
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Members jointly designate.
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## Members' Tax Requirements
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Within fifteen (15) days after the end of
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each taxable year, the Company shall forward to each Member all
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information necessary for the Members to complete their federal and
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state income tax or information returns, and a copy of the Company's
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federal, state, and local income tax or information returns for such
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year.
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## Membership Records
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The
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* name
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* e-mail address
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* Capital Contributions
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* Percentage Interest
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of each of the Members is set forth in Supplement 4.
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41
CommonBoilerplate/Capcon.md
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CommonBoilerplate/Capcon.md
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# Capital Contributions and Finance
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## Capital Contribution
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The Board Of Directors and Members
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shall determine if Capital Contributions are required to enable the Company
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to invest in any Investment Entity or to operate its business. No Member
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shall have any obligation to make any Capital Contribution.
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Notwithstanding the foregoing, Company members, in their sole
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and absolute discretion, may at any time elect
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to fund or not fund further Capital Contributions with respect to the
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Company or any Investment, Investment Entity, without any
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liability whatsoever to the Company or any Member, even if such failure
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to contribute results in the loss of any opportunity or the forfeiture
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of any Investment or interest in any Investment Entity, or results in
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any other penalty or liability.
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## Return of Contributions
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Except as expressly provided herein, no
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Member shall be entitled to the return of any part of its Capital
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Contributions, to be paid interest in respect of either its Capital
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Account or any Capital Contribution made by it or paid for the fair
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market value of its Membership Interest upon withdrawal or otherwise.
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Unrepaid Capital Contributions shall not be a liability of the Company,
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or of any Member.
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No Member shall be required to contribute or lend any cash or property
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to the Company to enable the Company to return any Member's Capital Contributions.
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## Member Guaranties
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No Member shall undertake to guarantee or otherwise become liable for any obligation
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of the Company, or any Investment Entity.
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## Investments
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Investments. All Investments by the Company shall be made on such
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terms and conditions as the Board Of Directors and Members may determine.
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17
CommonBoilerplate/ClosingAndSignature.md
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CommonBoilerplate/ClosingAndSignature.md
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# Closing
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
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has duly executed this
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* Company NDA
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* Company IP Assignment
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* Company Operating Agreement
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# Signature Page
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The parties sign this Agreement on the date below by their electronic signatures.
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75
CommonBoilerplate/Dissolution.md
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CommonBoilerplate/Dissolution.md
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# Withdrawal, Dissolution, Liquidation and Termination
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## Dissolution, Liquidation, and Termination Generally
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The Company shall be dissolved upon the first to occur of any of
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the following:
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* The sale or disposition of all assets of the Company and the receipt, in cash, of
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all consideration therefor, and the determination of the Board Of Directors and all
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Members not to continue the business of the Company directly or through an Investment
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Entity.
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* The occurrence of any event which, as a matter of law, requires that the
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Company be dissolved.
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## Liquidation and Termination
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Upon dissolution of the Company such Person as the Board Of Directors
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may designate shall act as liquidator. The liquidator shall
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proceed diligently to wind up the
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affairs of the applicable Company and make final distributions
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as provided herein. The costs of liquidation shall be a Company
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expense, as applicable. Until final distribution, the liquidator
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shall continue to operate the Company with all of the power
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and authority of the Board Of Directors, as applicable
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hereunder. The steps to be accomplished by the liquidator are as
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follows:
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* as promptly as possible after dissolution and again after final
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liquidation, the liquidator shall cause a proper accounting to be made
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by a firm of certified public liquidator, which shall cause a proper
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accounting to be made by a firm of certified public accountants
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acceptable to the Board Of Directors of the Company's
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assets, liabilities, and operations through the last day of the
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calendar month in which the dissolution shall occur or the final
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liquidation shall be completed, as applicable
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* the liquidator shall cause the Company to
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satisfy all of the debts and liabilities of the Company and
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(whether by payment or the making of reasonable provision for payment
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thereof)
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* all remaining assets of the Company shall be distributed
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to the Members as follows:
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* (a) the liquidator may sell any or all applicable Company
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property and the sum of:
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* (b) any resulting gain or loss from each sale plus
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* (c) the fair market value of such property that has not been sold
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shall be determined and (notwithstanding the provisions of Section
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Capital Accounts income, gain, loss, and deduction inherent in such
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property (that has not been reflected in the Capital Accounts
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previously) shall be allocated among the Members to the extent possible
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to cause the Capital Account balance of each Member to equal the amount
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distributable to such Member under this Section.
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* Company property as applicable shall be distributed to
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the Members as provided in Section "Distributions to Members".
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## Cancellation of Certificate.
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In the case of the dissolution,
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liquidation and termination of the Company, on completion of the
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distribution of Company assets, the Board Of Directors (or such other
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Person as the BOC may require or permit) shall file a Certificate of
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Cancellation with the Secretary of State of Texas, cancel any other
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filings made pursuant to Section "Qualification in Other Jurisdictions".
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and take such other actions as may be necessary to
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terminate the existence of the Company. In the case of the dissolution,
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liquidation and termination of the Company, the CEO shall file such
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certificates as may be required by the BOC or other law in respect
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thereof.
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CommonBoilerplate/Distributions.md
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CommonBoilerplate/Distributions.md
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# Distributions to Members
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## Distributions in General
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From time to time, but not less often than
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monthly, the CEO and CFO shall determine (i) the amount, if any, by
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which the Company's funds then on hand exceed the Reserve Amount (such
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excess being referred to herein as "**Excess Funds**").
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If the CEO and CFO determines that there are
|
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Excess Funds subject to distribution but that additional Capital Contributions
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will be required for future Company needs within the next two
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(2) calendar month period, then the CEO and CFO may elect to not make
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a distribution of such Excess Funds.
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Not later than the 15th day of each calendar month, the Excess Funds derived
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from the business shall be distributed to the Company Members in accordance with
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their Sharing Ratios.
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## Withholding
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The Company may withhold distributions or portions
|
||||
thereof if it is required to do so by any applicable rule, regulation,
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or law, and each Member hereby authorizes the Company to withhold from
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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
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and CFO reasonably determines that the Company is required to withhold
|
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or pay with respect to any amount distributable or allocatable to such
|
||||
Member pursuant to this Agreement. Any amounts so paid or withheld with
|
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respect to a Member pursuant to this Section shall be treated as having
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been distributed to such Member and shall reduce any amounts otherwise
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distributable to such Member (either currently or in the future)
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pursuant to Section "Distributions to Members" or Section
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"Withdrawl, Dissolution, Liquidation and Termination".
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|
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The Company desires to issue Units in respect of the Company designated as
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“Profits Interest Units” to Participant in connection with Participant’s performance
|
||||
of services to or for the benefit of the Company.
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10
CommonBoilerplate/DutyOfCare.md
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# Duty of care
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Each Member shall discharge their duties in a good and proper manner
|
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as provided for in this Agreement. Each Member, on behalf of the
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Company shall enforce agreements entered into
|
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by the Company and conduct or cause to be
|
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conducted the ordinary business and affairs of the Company in
|
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accordance with good industry practice and the provisions of this
|
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Agreement.
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62
CommonBoilerplate/Indemnification.md
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|
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# Indemnification; Reimbursement of Expenses; Insurance
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|
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To the fullest extent permitted by law, and subject to the limitations set
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forth in this Section, and with, in each case, the Board Of Directors
|
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prior approval:
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* the Company may (at the Members sole discretion) indemnify each Director
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or Member for any Adverse Consequences
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that a Director or Member may suffer including, but not limited to, any
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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
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||||
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
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||||
|
||||
(2) in connection with his or her appearance as a witness or other participation in any
|
||||
Proceeding.
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||||
|
||||
Such indemnification may also include counsel fees.
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||||
|
||||
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.
|
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5
CommonBoilerplate/LiabilityToThirdParties.md
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|
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|
||||
# 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.
|
||||
87
CommonBoilerplate/ManagementOfTheCompany.md
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CommonBoilerplate/ManagementOfTheCompany.md
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|
||||
# 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.
|
||||
27
CommonBoilerplate/RightsToCompanyInformation.md
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|
||||
|
||||
# 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)
|
||||
5
CommonBoilerplate/TimeAndCapitalRequirements.md
Normal file
5
CommonBoilerplate/TimeAndCapitalRequirements.md
Normal file
@ -0,0 +1,5 @@
|
||||
|
||||
# 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.
|
||||
Binary file not shown.
@ -1,481 +1,19 @@
|
||||
|
||||
# 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.
|
||||
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.
|
||||
|
||||
### Profits, Losses and Distributive Shares of Tax Items
|
||||
Changing the Committee Charter requires a unamious vote of written consent by
|
||||
the LLC members.
|
||||
|
||||
|
||||
### Members Bound
|
||||
Members shall be bound by the provisions of this Section in reporting their shares of Company income for income tax purposes.
|
||||
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
|
||||
@ -540,43 +78,29 @@ 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.
|
||||
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.
|
||||
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.
|
||||
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.
|
||||
|
||||
|
||||
@ -26,6 +26,16 @@ boilerplate_files=(
|
||||
"../CommonBoilerplate/ip-assign.md"
|
||||
"../CommonBoilerplate/OutsideCapRaise.md"
|
||||
"../CommonBoilerplate/AdditionalMembershipInterests.md"
|
||||
"../CommonBoilerplate/RightsToCompanyInformation.md"
|
||||
"../CommonBoilerplate/LiabilityToThirdParties.md"
|
||||
"../CommonBoilerplate/ManagementOfTheCompany.md"
|
||||
"../CommonBoilerplate/DutyOfCare.md"
|
||||
"../CommonBoilerplate/Indemnification.md"
|
||||
"../CommonBoilerplate/AccountsAndRecords.md"
|
||||
"../CommonBoilerplate/Capcon.md"
|
||||
"../CommonBoilerplate/Distributions.md"
|
||||
"../CommonBoilerplate/Dissolution.md"
|
||||
"../CommonBoilerplate/ClosingAndSignature.md"
|
||||
"../SingeLLCOpAgreement/TxLLC-ForProfit-MultiMember-ProfitInterestGrant-OpAgreement.md"
|
||||
)
|
||||
|
||||
|
||||
Loading…
Reference in New Issue
Block a user