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HomeMy WebLinkAboutOperating AgreementOPERATING AGREEMENT OF CAPSTONE - CS, LLC THIS OPERATING AGREEMENT (this "Agreement') is made and entered into as of the 4" day of December, 2008, by and between Capstone — CS, LLC, an Alabama limited liability company (the "Company"), and Capstone Development Corp., an Alabama corporation (such corporation being sometimes referred to as the "Member"). Recitals: WHEREAS, the Member is the sole member of the Company; and WHEREAS, the Company and the Member desire to enter into this Agreement to regulate or establish the affairs of the Company, the conduct of its business, and the relations of the Member with respect thereto, NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: 1. Capital Contributions. The Member has made a capital contribution to the Company in the amount of cash or the fair market value of property set forth in Exhibit "A" attached hereto and incorporated herein by reference. The Member shall not be required to make any additional capital contribution to the Company, except as the Member may determine otherwise. 2. Loans by Member. The Member may, but is not obligated to, loan to the Company from time to time such sums of money bearing such rates of interest and being repayable under such terms and conditions as the Member may determine to be appropriate for the conduct of the Company's business and affairs. 3. Allocation of Profits and Losses. Any and all profits and losses of the Company shall be allocated to the Member without apportionment. 4. Current Distributions. Except as otherwise provided in Paragraph I I hereof, distributions shall he made to the Member at such times and in such amounts as the Member may determine. 5. Member Management. The Member has the exclusive power, right and authority to manage the Company's business and affairs, and to make all decisions with respect thereto; provided, further, that no other person shall have the power, right or authority to act for or on behalf Operating Age wt-CapsWne-CS ll..0 DOC of the Company, to do any act that would be binding on the Company, or to incur any expenditure on behalf of the Company, without the consent of the Member. 6. Aetion by Written Consent. Any action required or permitted to be taken by the Member may, but need not, be effected in the form of a signed writing evidencing the same. 7. officers. The Member may appoint one or more individuals as officers of the Company. Any officer appointed by the Member may be removed by the Member at any time with or without cause; provided, however, that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Each officer, if so appointed, shall have the authority and shall perform the duties as may be specifically delegated to such officer by the Member, and otherwise shall have the authority and shall perform the duties set forth as follows: (a) President. The President shall be the chief administrative officer of the Company and shall have general and active management of such areas and divisions of the business and affairs of the Company as maybe designated by the Member. The President may sign (with the Secretary's attestation) on behalf of the Company, any deeds, mortgages, bonds, notes, contracts, leases or other instruments, except where required by law to be otherwise signed and executed, and except where the signing and execution thereof shall be expressly delegated by the Member to some other officer or agent of the Company. (b) Vice -President, In the absence of the President or in the event of his death or inability to act, the Vice -President (or in the event there be more than one Vice - President, the Vice -Presidents in the order determined by the Member) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. A Vice, -President shall perform such other duties as from time to time may be assigned to him or her by the Member or the President. (c) Secretary . The Secretary shall attest the President's duly authorized signature to any deed,; mortgage, bond, note, contract, lease or other instrument; shall have responsibility for preparing actions by written consent of the Member and keeping those actions by written consent in one or more. books provided for that purpose; have responsibility for authenticating records of the Company; see that all notices are duly given in accordance with the terms and conditions of this Operating Agreement, the Alabama Limited Liability Company Act or as otherwise required by law; be custodian of the Company records; and in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or herby the President or the Member. If there is no Treasurer of the Company, the Secretary shall assume the authority and duties of the Treasurer. (d) Treasurer. The Treasurer shall have charge and custody of and be responsible for all funds and securities of the Company, receive and give receipts for moneys due and payable to the Company from anysource whatsoever, and deposit all such moneys in Op=abng Agra wl-Capst=-CS LLC DOC the name of the Company in such banks, trust companies or other depositories as may be designated by the Member, and in general perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the President or the Member. If required by the Member, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Member shall determine. (e) Assistant Secretaries and Assistant Treasurers. The Assistant Secretary, or if there shall be more than one, the Assistant Secretaries in the order determined by the Member, shall, in the absence or disability of the Secretary, perform the duties and exercise the.powers of the Secretary. The Assistant Treasurer, or, if there shall be more than one, the Assistant Treasurers in the order determined by the Member, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer. The Member may require any Assistant Treasurer to give a bond for the faithful discharge of his or her duties in such sums and with -such surety or sureties as the Member shall determine. The Assistant Secretaries and Assistant Treasurers shall all perform such other duties as shall be assigned to them by the Secretary and Treasurer, respectively, or by the President or the Member. The compensation of the officers shall be fixed from time to time by the Member, and no officer shall be prevented from receiving such compensation by reason of the fact that he or she is a shareholder, officer, director, employee, affiliate, or agent of the Member. 8. Indemnification. The Company shall indemnify its members, officers, employees and other agents and make advances for expenses to the maximum extent permitted under Sections 10-12-1 et seq. Code of Alabama (1975) as set forth in this Paragraph 8, provided that such indemnification in any given situation is approved by the Member. The Company shall indemnify its members, officers, employees and other agents for and hold them harmless from any liability, whether civil or criminal, and any loss, damage, or expense, including reasonable attorneys' fees, incurred in connection with the ordinary and proper conduct of the Company's business and the preservation of its business and property, or by reason of the fact that such person was a member, officer, employee or other agent; provided the member, officer, employee and other agents to be indemnified acted in good faith and in a manner such person acting believed to be consistent with the provisions of this Agreement; and provided fuiiher that with respect to any criminal action or proceeding, the person acting to be indemnified had no reasonable cause to believe the conduct was .unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon aplea of polo contendere or its equivalent shall not of itself create a presumption that indemnification is not available hereunder. The obligation of the Company to indemnify any person hereunder shall be satisfied out of Company assets only, and if the assets of the Company are insufficient to satisfy its obligation to indemnify, such person shall not be entitled to contribution from the Member. 9. Cessation of Membership. The Member shall cease to be a member of the Company only upon the occurrence of one or more of the following events: Operating Agrcer [-Capsm-CS=OOC (a) The Member notifies the Company that the Member ceases to be a member by voluntary act; or (b) The Member ceases to be a member of the Company by assigning the Member's entire interest in the Company when any assignee of the interest becomes a member with respect to the assigned interest. 10, Dissolution, The Company shall be dissolved and its affairs shall be wound up only upon the occurrence of one or more of the following events: (a) The written consent of the Member to dissolve; (b) When there is no remaining member, unless the legal existence and business of the Company is continued and one or more new members are appointed bythe holders of all of the financial rights in the Company within ninety (90) days after the cessation of membership of the last member, (c) When the Company is not the successor limited liability company in the merger or consolidation with one or more limited liability companies or other entities; or (d) The entry of a decree of judicial dissolution under the Alabama Limited Liability Company Act. 11. Liquidating Distributions. Upon the winding up of the Company, the assets of the Company shall be distributed in the following order of priority: (a) To creditors (including the Member as a creditor to the extent otherwise permitted by law), in the order of priority as provided by law, except those liabilities to the member for interim distributions or on account of capital contributions; and (b) To the Member without apportionment. 12. Choice of Law. This Agreement shall be governed by, construed under, and enforced in accordance with, the laws ofthe State of Alabama, without regard to any conflict -of -laws rules to the contrary, 13. Entire Agreement; Amendments. This Agreement embodies the entire understanding of the parties with regard to the regulation and establishment of the affairs of the Company, the conduct of its business, and the relations of the Member with respect thereto, and may not he amended or modified except by a written instrument made, executed and delivered by all of the parties hereto. 14. Severability, If any provision of this Agreement or the application thereof to a person or circumstance shall be held by a court of competent jurisdiction to be invalid, illegal or Opmtmg Agmemmt - Capstone - CS r1C DOC unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. 15. Hens. Successors and ASSignS. Each and all of the covenants, terms, conditions, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. 16. Headings. The headings in this Agreement are inserted for convenience of reference only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provisions hereof. 17. Pronouns. All pronouns used in this Agreement shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. 18. Terminology. Unless otherwise indicated, terms used but not specifically defined in this Agreement shall have the meanings ascribed to such terms in the Alabama Limited Liability Company Act. IN WITNESS WHEREOF, the parties have executed this Operating Agreement effective as of the date first written above. COMPANY: CAPSTONE — CS, LLC By: CAPSTONE DEVELOPMENT CORP. Its Sole Member Its Chief Operating Officer MEMBER: CAPSTONE DEVELOPMENT CORP. By: f df/' &�t&/ Rob Howland Its Chief Operating Officer Operating Agreement - Capstone- CS [LC DOC EXHIBIT"A" Name and Address of Capital the Sole Member Contribution Capstone Development Corp. $100.00 431 Office Park Drive Birmingham, AL 35223 Operating Agcctnmt - Capstone- CS ILC DOC