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StartupStarterPackage/SingeLLCOpAgreement/TxLLC-ForProfit-MultiMember-ProfitInterestGrant-OpAgreement.md

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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
insert any terms and conditions here....
perhaps mention sources of revenue, markets being pursued etc...
## Non Equity and Non Debt based
Capital will be primarily sought through the pursuit of abc from xyz (but not
limited to):
*
*
*
*
*
## Restrictions on Capital Sources
*
*
## 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.
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