HomeMy WebLinkAboutCompany AgreementCOMPANY AGREEMENT
OF
BIRD POND ROAD PROPERTY, LLC
June S 2006
THE OWNERSHIP INTERESTS DESCRIBED HEREIN HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, THE TEXAS
SECURITIES ACT OR THE SECURITIES LAM - OF ANY OTHER STATE.
SUCH OWNERSHIP INTERESTS MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER APPLICABLE SECURITIES LAWS OR EXEMPT FROM
SUCH REGISTRATION AND THE COMPANY MAY REQUIRE SUCH
EVIDENCE AS THE COMPANY DEEMS APPROPRIATE TO CONFIRM THAT
ANY PROPOSED TRANSFER COMPLIES WITH SUCH REQUIREMENTS.
THE COMPANY IS NOT OBLIGATED TO REGISTER ANY OF SUCH
OWNERSHIP INTERESTS OR TO MAINTAIN ANY INFORMATION ABOUT
THE COMPANY PUBLICLY AVAILABLE.
THE OWNERSHIP INTERESTS THAT ARE THE SUBJECT OF THIS
COMPANY AGREEMENT ARE SUBJECT TO RESTRICTIONS ON THE
TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION AS SET FORTH IN
THIS COMPANY AGREEMENT.
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TABLE OF CONTENTS
ARTICLE I................................................................. 1
DEFINITIONS ............................................1
1.1 Ce In Qefinitions 1
1.2 AddWgmal Definitions 4
ARTICLE II ...................................................4
ORGANIZATIONAL MATTER • 4
2.1 Fprmiktion ................................................4
2.2 Jim ...............................4
2.3 Name and Address of Initial Members 4
2.4 Registered Office and Registered Agent 4
2.5 Prinoittal Office and Other Offices 4
2.6 Pur se 5
2.7; Foreign Qualfication 5
2.8 Term ..............................5
2.9 Merger. Conversion. bterestExchange . 5
ARTICLE III ...........5
MEMBERS 5
3.1 pie of.Mes Ci.. of Members 5
3.2 Annual Meetings of Nbmbers 5
3.3 Special MaetIM of Members 6
3.4 Notices of Nbetinas of Members 6
3.5 Waiver of Notice 6
3.6 Quorum of Members 6
3.7 Voting at Meetings of Members Impasse 6
3.8 Voting at Meetings of Members 7
3.9 Vodnaby. XY ...........................................7
3.10 Record Date ...................................7
3.11 List of Members Entitled to Vote 7
3.12 Members of Record 7
3.13 Actions by Members Without a Meetirxar 8
3.14 Meetings by Conference Telephone • • 8
ARTICLE IV .........................................................8
R"TS AND DUTIES OF MAN&QgRS 8
4.1 Management Powers of Managers 8
4.2 Number of Managers 8
4.3 Qualifroafion c f Managers 8
4.4 Election d Managers 8
4.5 13emoval of Ntanasters 8
4.6 V can .....................................8
4.7 Place of Meetings of Managers 9
4.8 Annual Meetings of Managers 9
4.9 Regular Meetings of Managers 9
4.10 Spacial Meetings of Managers 9
4.11 Notices and Waivers of lce 9
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
Quorum of Managers 9
Voting at Meetings of Managers 9
Compemation of Managers ..................................9
.................................10
Contracts-and ObIloalk-ris .................................10
Executive Mansper .................................10
Administrative MaMor .................................10
office .................................10
Ramoval and Vacancies .................................10
ARTICLE V .
11
CONT
RIBUT
IONS T
O CAPITAI<
11
5.1
Initial
Contributions
11
5.2
Add
nal ContrllKtbns
11
5.3
Oatio
Mal Contributions
11
5.4
Mam
ormw of Capital Accounts
11
5.5
Comp
liance with Code and Treasury Regulations
12
5.6
Effect
of Transfiars
12
5.7
No In
terest on Contributors
12
5.8
No W
lthdWMI of CooWbutimis
12
5.9
No Pr
iority - -
12
5.10
N~a
tiye Capital Accounts
12
5.11
Limite
d Liabiib of Members
12
ARTICLE VI
13
ALLO
CATIONS AND DISTRIBUTIONS
13
6.1
Allow
tions of Pmfrts and Lasses
13
6.2
Interi
m Distributions
13
6.3
Distri
butions on Withdrawal
13
6.4
Distributions on Termination
13
6.5
Limita
tion on Distributions
13
6.6
Dlstrl
buQ ns In tgrd
13
ARTICLE VII.. . .......................................13
ACCOUNTING AND TAX MATTERS 13
7.1 B22he and Records .......................................13
7.2 Tax Return s .............................................14
7.3 Tax Elections 14
7.4 Tax Matters Partner 14
ARTICLE VIII . . . . 15
. .
RIt3HT$. DOWERS AND OBLI
GATIONS OF MEMBERS
15
8.1
Authodttyo Liabil
bto Third Parties
15
8.2
RR@Wctlons on T
ransfers
15
8.3
Effect of Transfe
r of Membership Interest
15
8.4
Admission of Transferee as Member
15
8.5
Right of First Re
fusal
16
8.6
9081 na
17
8.7
Failure tp Ckme
17
8.8
Purchase on De
ath
17
8.9 Purchase on Termination ..................................17
8.10 Purchase on Transfer by Oceration of Law 18
8.11 Other Business ...........................................18
ARTICLE IX ...MINATION.........................................1B
WI NDING UP AND~TE R ...................................18
9.1 Event Reguidnsa a Winding UE ...............................18
9.2 Rovocati ..............................................19
9.3 (cancellation .............................................19
9.4 Interim Manager 19
9.5 Effect of Event Reguiring a Winding UP 19
9.6 Winding Up and Termination 19
9.7 Cancellation of Certificate 21
9.8 Distributions In Kind 21
ARTICLE X . ..................21
CERTJFiCATES R. EPRESENTIN. G" MEMIERSHIP INTEREST 21
10.1 Form of Certificates 21
10.2 Lost Certificates 22
10.3 Transfer of Membamhic Inter 22
10.4 Restriction on Transfer 22
ARTICLE XI .........................................22
MISCELLANEOUS PROVISIONS 22
11.1 Notices ..............................................22
112 Goveming Low ..........................................23
11.3 No Partition Action 23
11.4 Mims and Headings .................................23
11.5 Amendment QfQrtificate 23
11.6 Amendment of this Agreement 23
11.7 Number and Gender .......................................23
11.8 Binding Effect 23
11.9 Sev i ..............................................23
11.10 Counterparts .................................23
EXHIBIT A .....................................25
NAMES, AGREED CONTRIBUTIONS,
MEMBERSHIP INTERESTS AND PERCENTAGE OWNERSHIP OF MEMBERS
............................................................25
COMPANY AGREEMENT
OF
BIRD POND ROAD PROPERTY, LLC
This Company Agreement of BIRD POND ROAD PROPERTY, LLC (the "Company") Is
adopted effective the _5'11- day of June, 2006 (the "Effective Date"), by the undersigned
Members and Managers of the Company.
ARTICLE i
DEFINITIONS
1.1 CeEWIn Detinitior>s The following terms shad have the meanings specOW below
when used in this Agreement unless otherwise expressly specified herein to the cort W.
(a) 'Accounting Year' means the Companys accenting year for accounting
and tax purposes, which shag be the calendar year.
(b) "ftwom" means this Company Agreement, as amended from time to
time.
(c) 'Additional ContriMon" means the portion of the Agreed Contribution of
a Member to the Companywhich is in excess of such Members Initial Contribution.
(d) "Agreed Cutributbn" means the sum of a Member's Initial Contribution
and Additional Contributions, If any, which such Member has agreed in writing to make to the
Company pursuant to this Agreement including amounts to be paid pursuant to one or more
promissory notes and payments of money or transfers of property to made pursuant to this
Agreement.
(e) "Authorized Purposes" shall mean the purposes of the Company
specified in the Certificate or authorized by a vote of a Majority In Interest of all of the Members
in accordance with the provisions of this Agreement.
(f) wCapital Account" means, with respect to any Member, the account
maintained for such Member in accordance with Section 5.4 of this Agreement
(g) "Ca t Contrib means any Initial Contribution, Additional
Contribution or Optional Contribution to the capital of the Company In cash or property when
and as such contribution is actually made to the Compary by a Member.
(h) "Certificater means the Certificate of Formation of the Company filed with
the Secretary of State of the State of Texas pursuant to fie TBOC, as amended or restated
from time to time.
(1) '92mgLnf means the limited liability company formed pursuant to this
Agreement.
Company Agreement - Bind Pond Road Properly, LLC Page 1
0) "Distributable Cash" means the amount by which (1) the aggregate
amount of all cash and other current funds on account from time to time held by the Company
on hand or In bank accounts or other temporary Investments pending distribution, exceeds (2)
the aggregate amount of all amounts paid or set aside by the Company for (A) all principal and
interest payments on indebtedness of the Company and all other sums payable to lenders; (B)
all cash expenditures incurred incident to the normal operations of the Company's business;
and (C) such cash reserves as the Managers deem reasonably necessary to the property
operation of the Company's business.
(k) 'Initial Contribution" means the initial Capital Contribution to the Company
made by a Member.
(1) 'IRS Cod e'means, at any time, the Internal Revenue Code of 1986, as
amended, or, fiom and after the date any successor statute becomes, by Us terms, applicable
to the Company, such successor statute, In each case as amended at such time by
amendments that are, at that time, applicable to the Company. All references to sections of the
IRS Code include any corresponding provision or provisions of any such successor statute.
(m) 'Losses' means, for each Accounting"Year (or portion thereof, as may be
applicable), the losses and deductions of the Company determined in accordance with
accounting principles consistently applied from year to year under the Company's Method of
Accounting and as reported, separably or in the aggregate as appropriate, on the Company's
information tax return filed for federal income tax purposes, plus any expenditures described in
Section 705(x) (2) (B) of the IRS Cade.
(n) "Manager" means each individual named as such in the Cedificate, or
any other person who succeeds such Individual In such capacity and any other individual who Is
elected to act as a Manager of the Company as provided in this Agreement.
(o) "Managers" means all persons at any time then acting in the capacity as
a Manager of the Company (unless reference Is made In specific instances to a smaller group
of Managers).
(p) "Mul@jW means, with respect to any referenced group of Managers, a
combination of any of such Managers constituting more than fifty percent (50%) of the number
of Managers of such referenced group who are then elected and qualified.
(q) 'Matority in Interest" means, with respect to any referenced group of
Members, a combination of any of such Members who, In the aggregate, own more than fifty
percent (50%) of the Membership Interests owned by all of such referenced group of Members.
(r) "MembeP means each person designated as a Member of the Company
on Exhibit which is attached hereto and hereby made a part hereof by n0arence for all
purposes, any successor to all or any part of any such person's Membership Interest In the
Company who has been duly admitted as a Member of the Company in accordance with this
Agreement and any other person admitted as an additional Member of the Company In
accordance with this Agreement.
Company Agreement - BJrd Pond Road Properly. LLC Page 2
(s) embers" means all Members of the Company collectively In their
capacity as Members of the Company (unless reference is made in specific instances to a
smaller group of Members).
(t) "Membership Interesf' means, at any time, the interest of a Member In
the Company, including the right to receive distributions of Company assets and the right to
receive allocations of income, gain, loss, deduction, or credit of the Company, but does no
include the voting rights or management rights reserved to the Members under the terns of this
Agreement (or the right to vote the Units relating thereto) until such holder of the Membership
Interest has been admitted to the Company as a Member as to that Membership Interest.
(u) "Method of Accountirxf' shall mean a cash basis method of accounting.
(y) "Optional Cgntrfbu#bn" means a Capital Contribution by a Memberwhich
is in addition to such Member's Agreed Contribution.
(w) "Perm" shall mean a natural person, partnership, limited partnership,
limited liability company, foreign Limited liability company, trust, estate, corporation, custodian,
trustee, executor, administrator, nominee or entity in, a representative capacity, general
partnership, joint venture, cooperative or association and any other legal or commercial entity,
In its own or representative capacity.
(w) "Principal Office' means 2908 Finfeather Road, Bryan, Texas T1801, or
such other location within the State of Texas as may from time to time be determined by the
Managers and specified by written notice from the Managers to the Members.
(x) "Profits" means, for each Accounting Year (or portion thereof, as may be
applicable), the income and gains of the Company determined In accordance with accounting
principles consistently applied from year to year under the Company's Method of Accounting
and as reported, separately or In the aggregate as appropriate, on the Company's information
tax return filed for federal Income tax purposes, plus any Income described In Section 705(a)(1)
(B) of the IRS Code.
(y) "Registered Agent" means the registered agent for the Company
specified in the Certificate of Formation, as such registered agent may be changed from tine to
time in accordance with the TBOC.
(z) ' W means, at any time, the Business Organizations Code of the
State of Texas, as amended, or, from and after the date any successor statute becomes, by its
terms, applicable to the Company, such successor statute, In each case as amended at such
time by amendments that are, at that time, applicable to the Company. Ail references to
sections of the TBOC include any corresponding provision or previsions of any such successor
statute.
(so) err" means the term of existence of the Company, which shal be
perpetual, unless the Company Is earlier dissolved in accordance with the provisions of either
this Agreement or the TBOC.
Company Agreement - Bird Pond Road Property, LLC Page 3
(bb) `Transfer means (a) any sale, transfer, encumbrance, gift, donation,
assignment, pledge, hypothecation, or other transfer of any Membership interest or any interest
therein, whether voluntary or involuntary, and whether during the transferor's liifetime or upon or
after the transferors death, including any transfer by operation of law, by court order, by judicial
process, or by foreclosure, levy, or attachment; or (b) the act of moldng any of the foregoing.
(cc) "Treasury Regulati ons` or 'Regulations' means, at any time, the Federal
Income tax regulations promulgated under the IRS Code that are in effect at such time and that,
by their terms, are applicable to the Company at such time. All references to sections of the
Regulations include any corresponding provision or provisions of any such successor
regulations.
(dd) "Units" means an increment of interest in the Company assigned to each
Member in connec tlon with a Membership Interest that represents an original Capital
Contribution of $1.00 and which, in each case where the Members, or a group of Members are
entitled to vote or make a decision under the terns of this Agreement, will carry one vote.
1.2 Additional petinAdditional terms which are defined in other provisions of
this Agreement shall have the meanings assigned to such4erms in such provisions.
ARTICLE II
ORGAN ATIONAL MATTER
2.1 Formation. The Members hereby form the Company pursuant to the TBOC, as
of the Effective Date.
2.2 Name. The name of the Company Is 'Bird Pond Road Property, LLC'. The
business of the Company will at all times be conducted under such name and such other name
or names as the Managers may salad, from time to time.
2.3 Name and Address of Initial Members. The name and address of each Member
is set forth on Exhibit A Each such person shown on Exhibit A on the Effective Date of this
Agreement is admitted to the Company as a Member upon its formation. Any change in the
name or address of a Member of which the Company Is given notice will be as set forth in the
records of the Company and Exhibit A will be deemed amended appropriately. The Managers
may substitute a new Exhibit A (indicating its effective date) to reflect such additional and/or
different information. The records of the Company will be prime facia evidence of the status of
any person as a Member.
2.4 Registered Office and Registered Agent The address of the registered office of
the Company in the State of Texas will be Cody Catalonia, 2908 Finfeather Road, Bryan, Texas
77801, and the name of the registered agent of the Company at such address will be Cody
Catalena. The Managers may at any time, and from time to time, designate a new successor
registered office or registered agent, or both.
2.5 Principal Office and Other Offices. The principal address and place of business
of the Company will be 2908 Firdeather Road, Bryan, Texas 77801 or such other place that is
consistent with the purpose of the Company as the Managers may designate from time to time
Company Agreement - Slid Pond Road Property, UC Page 4
by notice to the Members. The Company may have such other office or offices as the
Managers may designate from time to time by notice to the Members.
2.6 PuaM2. The purpose of the Company is to transact any and all lawful
businesses and engage in any lawful act or activities for which limited liability company may be
organized under the TBOC, and undertake all matters that may be incidental thereto.
2.7 Certificate: Foreign Qualification. A certificate of fomudion that meets the
requirements of the TBOC will be filed with the Secretary of State of Texas and will be
amended from time to time as required by the TBOC. Upon the request of the Managers, each
Member will Immediately execute all certificates and other documents consistent with the farms
of this Agreement that the Managers believe am necessary or desirabb for the Managers to
accomplish all filing, recording, publishing, an other acts as may be appropriate to comply with
all requirements to form, operate, qualify, and continue the Company as a (a) limed Ilablity
company under the TBOC and the laws of the State of Texas and (b) limited liability company,
or a company in which each Member has limited liability In all other jurisdictions where the
Company proposes to operate.
2.8 Term. The Company's existence will commence on the effective date of the
initial filing of the Certificate with the Secretary of State of the State of Texas and will continue
until the Company terminates pursuant to the terms of this Agreement. The Company may not
conduct business until the Certificate has been filed with the Secretary of State of the State of
Texas.
2.9 MerMer,~Conyersion. Interest Excharxte. The Company may effect or participate
in a merger, conversion, or interest exchange (as such terms are defined In the TBOC) or enter
into an agreement to do so with the consent of the Managers and of a Majorityy of the Members.
ARTICLE III
MEMBERS
3.1 Place of Meetings of Members. AN meetings of the Members shall be held at the
Principal Office of the Company or at such other place within or without the State of Texas as
may be determined by the Managers and set forth in the respective notice or waivers of notice
of such meeting or other written consent of all persons entitled to vote at such meeting.
3.2 Annual Meetings of Members. The annual meeting of the Members for the
election of Officers and the transaction of such other business as may properly come before the
meeting, shall be held on the second Tuesday of May of each year, and if a legal holiday, then
on the next full business day following, at ten o'clock (10:00) a.m., at which the Members
transact such other business as may properly be brought before the meeting. Annual meetings
of the Members shall be called In the same manner as provided in this Agreement for calling
special meetings of the Members, except that the purposes of such annual meetrW need not
be stated in the notices of such annual meetings unless and to the extent otherwise required by
applicable law with respect to such annual meetings. If the annual meeting is not held on the
date above spedffed, the Manager shall cause a meeting in lieu thereof to be held as soon
thereafter as convenient, and any business transacted or election held at that meeting shall be
as valid as if held at the annual meeting. Failure to hold the annual meeting at the designated
time shall not work a dissolution of the Company
Company Agreement - Bird Pond Road Property, LLC Page 5
`
3.3 Sogial Meetings of Members. Special meetings d the Member rmay be ~called
by the Managers or by Members owning, in the aggregate, not less than rcent T'
of the Membership Interests. Business transacted at all special meetings shag be confined to
the purposes stated in the notices of such meetings.
3.4 Notices of Meetings d Nembers. Written or printed notice stating the place,
date and time of the meeting and, in the case of special meetings, the purposes or purposes for
which such meeting Is caged, shall be delivered not less than ten (10) days nor more than sixty
(80) days prior to the date of such meeting, either personally or by mail, by or at the direction of
the Managers or the Members calling such meeting, to each Member of record entitled to vote
at such meetirg. If mailed, such notice shaA be deemed to have been delivered when
deposited in the United States mat, postage prepaid, addressed to the Member at the address
of such Member as it appears on the transfer records of the Company.
3.5 Waiver of Notice. Attendance of a Member at any meeting shell constitute a
waiver of notice of such meeting, ancept where the Member attends a meeting for the express
purpose of objecting to the transaction of business at such meeting on the ground that such
meeting Is not lawfully caned or convened. Any Member may waive notice of any meeting by
signing a written waiver to such effect before or after such meeting and such wahver shall be
effective for all purposes as satisfying all notice requirement of this Agreement or applicable
law.
3.6 Quor m of Members. A Majority In Interest of all of the Members shall constitute
a quorum at an meetings of the Members, except as otherwise provided by law or the
Certificate. Once a quorum is present at a meeting of the Members, the subsequent withdrawal
from the meeting of any Member pior to adjournment or the refusal or any Member to vote
shall not affect the presence of a quorum atthe meeting. If, however, such quorum shall not be
present at any mesiing of the Members, the Members present and entitled to vote at such
meeting shall have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until Members owning the requisite amount of Membarsl*
Interests shall be present or represented.
3.7 Voting at Meetings of Members; Impasse.
(a) At any meeting of the Members at which a quorum Is present, the vote of
the Members ovming a Majority in Interest of the Members present in person or by proxy and
entitled to vote at such meeting shall be the act of the Merdbers, unless the vote of a greater
percentage of the Membership Interests is required by law, the CertBcate of Formation or this
Agreement.
(b) In the event the Members reach an Impasse on any matter to be voted
upon by the Members, the Members agree to use good faith efforts to resoh+e the matter In the
best interest of the Company. If the Members are unable to resolve the matter between
themselves, the Members shall submit the matter to arbitration as provided below. Any such
matter in dispute shall be settled by arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association (the 'AAAJ in effect from time to time. The
arbitration proceeding, including the rendering of an award, shall take place in Houston, Texas
and be administered by the AAA by ona arbitrator. The parties agree to ad in good faith to
mutually select an arbhmto►. If the parties are unable to agreeon the selection of an arbitrator,
Company Agreement - Bird Pond Read Property, LLC Page 6
each party shall select an arbitrator and those two arbitrators shall select the arbitralor to
handle the matter. The decision of the arbitrator shall be binding on the Company, the parties
and their successors.
3.8 Voting at Meetings 9f Members. At any meeting of the Members at which a
quorum is present, the vote of the Members owning a Majority in Interest of the Members
prosent in person or by proxy and entitled to vote at such meeting shall be the act of the
Members, unless the vote of a greater percentage of the Membership Interests is required by
law, the Certificate of Formation or this Agreement.
3.9 Voting by Proxy. Each Member shall be authorized to vote by proxy at any
meeting of the Members. Each proxy must be executed in writing by the Member or such
Member's duty authorized attorney-In-fad. No proxy shall be valid more than eleven (11)
months after the date of its execution. Each proxy shag be revocable unless the proxy form
states conspicuously that the proxy is Irrevocable and the proxy is coupled with an interest.
3.10 Record Date. For the purpose of determining Members entitled to notice of or to
vote at any meeting of Members or any Company, or in order to make a determination of
Members for any other proper purpose, the Managers shall-fix in advance a date as the record
date for any such determination of Members. Such record date in any case shag not be more
than sixty (60) days, and in the case of a meeting of Members not less than ten (10) days, prior
to the date on which the particular action requiring such determination of Members is to be
taken. If a determination of Members entitled to vote at any meeting of Members has been
made as provided in this Section 3.10, such determination shall apply to any adjournment
thereof. The transfer books of the Company shall not be closed for the purpose of making a
determination of Members under this Section 3.10.
3.11 List of Members entitled to Vote. The Managers shall make, at least ten (10)
days before each meeting of Members, a complete list of the Members entitled to vote at such
meeting, or any adjm mment thereof, arranged In alphabetical order by the surnames of the
Members, which list shall contain the address of each such Member and the Membership
Interest held by each such Member. Such gst shall, fior a period of ten (10) days prior to such
meeting, be kept on file at the Registered Office of the Company and shag be subject to
Inspections by any Member at any time during usual business hours. Such list shag also be
produced and kept open at the time and place of the meeting and shall be subject to inspection
of any Member during the whole time of the meeting. The failure to comply with the provisions
of this Sedion 3.11, however, shall not affect the validity of any action taken at any such
meeting of the Members.
3.12 Members of Record The Company shag be entitled to treat the holder of record
of any Membership Interest as the holder in fad of such Membership Interest for all purposes,
Accordlngiy, the Company shall not be bound to recognize any equitable or other claim to or
interest in any Membership Interest on the part of any other person which Is not reflected on the
transfer records of the Company, Whether or not it shag have actual or other notice of such
claim or interest, except as expressly provided to the contrary by this Agreement or applicable
law.
3.13 Actions by Members Without a Meeting. Any action required by the TBOC or
this Agreement to be taken by the Members at a meeting may be taken by the Members without
Company Agreement - Bind Pond Road Property. LLC Pegs 7
a meeting, without prior notice and without a vote, F a written consent or consents, setting forth
the action so taken, shall be signed by Members having not less than the minimum number of
votes which would be necessary to take such action at a meeting at which all Members entitled
to vote on the action were present and voted.
3.14 Meetings by Conference Telephone Subject to the pmvisbns of this Agreement
regarding notice and waiver thereof, annual and special meetings of the Members may be
conducted by conference telephone call or other electronic means allowing all Members present
at such meeting to communicate among themselves.
ARTICLE IV
RIGHTS AND DUTIES OF MANAGERS
4.1 Manggement Powers of Managers. The powers of the Company shag be
exercised by or under the authority of and the business and affairs of the Company shall be
managed under, its designated Manager or Managers. In addition to the powers and
authorities expressly conferred by this Agreement upon the Managers, the Managers may
exercise all such powers of the Company and do all such lawful acts and things as are not
directed or required to be exercised or done by the Members by the TBOC, the Certificate or
this Agreement, including, but not limited to, contracting for or incurring debts, liabilities and
other obligations on behalf of the Company for Authorized Purposes.
4.2 Dumber of Managers The number of Managers shall not be less than one (1)
nor more than seven (7), as may be determined by action of the Members from time to time, but
no decrease In the number of Managers shall have the effect of shortening the term of any
incumbent Manager.
43 Qualification of Managers. Managers need not be residents of the State of
Texas. Managers need not be Members of the Company.
4.4 Election of Managers At the first annual meeting of the Members and at each
annual meeting thereafter, the Members shalt elect the authorized number of Managers to hold
office until the next succeeding annual meeting. Unless removed M accordance with this
Agreement, each Manager shall hold office for the terms for which such Manager is elected and
until such Manager's successor shall be elected and qualified.
4.5 Removal of Managers AD or any lesser number of the Managers may be
removed by the Members, with or without cause, at a special meeting of the Members called for
such purpose. Any such removal shall be effective immediately, regardless of whether a
successor Manager is elected simultaneously.
4.6 Vacancies. Except as otherwise provided below, any vacancy occurring In the
Managers may be filled by the affirmable wte of a majority of the remaining Managers though
less than a quorum of the Managers and any Manager elected to fill such a vacancy shell be
elected for the unexpired term of such Manager's predecessor in office; provided. however, that
any such vacancy which has not previously been irked by the remaining Managers may be filled
by vote of the Members at any special meeting of the Members called for such purpose Any
vacancy In the Managers resulting from an increase in the authoriaad number of Managers
shall be filled by vote of the Members at an annual meeting or a special meeting called for such
Company Agreement - Bird Pond Road Properly, LLC Pape 8
purpose. Any vacancy in the Managers resulting from the removal of a Manager shall be tilled
by vote of the Members at an annual meeting or a special meeting called for such purpose and
need not be made concurrently with such removal.
4.7 dace of Meetings of Managers. All meetings of the Managers may be held
either within or without the State of Texas.
4.8 Annual Meetings of Managers. The annual meeting of the Managers shall be
held, without further notice, Immediately following the annual meeting of Members, and at the
same place, or at such other time and place as shall be fixed with the written consent of all of
the Managers.
4.9 Regular Meetings of Manager. Regular meetings of the Managers may be held
without notice at such time and place either within or without the State of Texas as shall from
time to time be determined by the Managers.
4.10 Srteciai Meetings of Managers Special meetings of the Managers may be called
by any Manager on not less than three (3) days' notice to each Manager, either personally or by
mail, telephone, telegram or facsimile transmission. "
4.11 Notices sag Walvers of Notice. Neither the business to be transacted at nor the
purpose of, any regular or special meeting of the Managers need be specified in the notice or
waiver of notice of such meeting. Attendance of a Manager at any meeting shati constitute a
waiver of notice of such meeting, exceptwhere the Manager attends a meeting for the express
purpose of objecting to the transaction of business at such meeting on the ground that such
meeting is not lawfully called or converged. Any Manager may waive notice of any meeting by
signing a written waiver to such effect before or after such meeting and such waiver shall be
effective for all purposes as satisfying all notice requirements of this Agreement or applicable
law.
4.12 Quorum of Managers, At all meetings of the Managers, the presence of a
Majority of the Managers shall be necessary and sufficient to constitute a quorum for the
transaction of all business unless a greater number is required by law. If a quorum shall not be
present at any meeting of the Managers, the Managers present at the meeting may adjourn the
meeting from time to time, without notice other than announcement at the meeting, urd a
quorum shall be present
4.13 Voting at Meetings of Managers. The act of a Majority of the Managers present
at a meeting at which a quorum is present shall be the act of the Managers, except as
otherwise provided by law.
4.14 Comp tIon of Managers Managers, as such, shall not receive any stated
salary for their services, but shall recehea such compensation for their services as may be from
time to time approved by vote of the Members at an annual meeting or a special meeting called
for such purpose. Nothing In this Agreement shall be emstrued to preclude any Manager from
serving the Company in any other capacity and receiving compensation Poor such purposes.
4.15 Committees of Managers The Managers may designate from among the
Managers one or more committees, each of which shall be comprised of one or more
Company Agreement - Bird Pond Road Property, LLC Page 9
Managers, and may designate one or more of the Managers as alternate members of any
committee, who may, subject to any limitations imposed by the Managers, replace absent or
disqualified Managers at any meeting of that committee. Any such oommittee shall have and
may exercise all of the authority of the Managers to the extent delegated by the Managers to
such committee subject to the limitations on such delegation set forth In the TBOC.
4.16 Contracts and Obligations. Debts, liabilities and other obligations may be
incurred, and contracts and other instruments may be executed, on behalf of the Company for
any Authorized Purpose by any Manager only if, when and as such action is authorized by the
affirmative vote of a Majority of the Managers present at any meeting at mhlch there is a
quorum.
4.17 Executive Manila er. The Managers shall be authorized to establish the position
of Executive Manager (herein so caled) of the Company and to elect an Executive Manager
from among the Managers then elected and serving as such. Any such Executive Manager
who is elected by the Managers shall be responsible for supervising and conducting the day-to-
day activities of the Company and presiding at meetings of the Managers and Members and
shall perform such other duties and exercise such other authorities as rimy from time to time be
designated by resolution of the Managers. Any such Executive Manager who is elected shall
serve until the next annual meeting of the Managers and until a successor Executive Manager
is elected and qualified.
4.18 Administrative Marg. The Managers shall be authorized to establish the
position of Administrative Manager (herein so called) of the Company and to elect an
Administrative Manager from among the Managers then elected and serving as such. Any such
Administrative Manager who is elected by the Managers abed be responsible for maintaining, or
supervising the maintenance of, the books and records of the Company and recording minutes
of all meetings of the Managers and Members and shall perform such other duties and erase
such other authorities as may from time b time be designated by resolution of the Mangers.
Any such Administrative Manager who is elected shall serve until the next annual meeting of the
Managers and until a successor Administrative Manager is elected and qualified.
4.19 Officers. The Managers shall be authorized to designate one or more persons
as officers of the Company who are not Managers. Any such officer so designated by the
Managers shall perform such duties and exercise such authorities as may from time to time be
designated by resolution of the Managers. Any such officer who is designated by the Managers
shall serve until the nek annual meeting of the Managers and until a sucoessor officer is
elected and qualified.
4.20 Removal and Vacancies. Any Executive Manager, Administrative Manager or
other officer of the Company shall be subject to removal, with or without cause, at any regular
or special meeting of the Managers. Any vacancy in the position of Executive Manager,
Administrative Manager or other officer of the Company resulting from removal, resignation or
other event may be filled by the Managers at any regular or special meeting of the Managers.
Company Agreement - Bird Pond Road Property, LLC Page 10
f
ARTICLE V
CONTRIBUTIONS TO CAPITAL
5.1 Initial Contributions Concurrently with the execution of this Agreement, each
Member shall contribute the property to the capital of the Company referenced as the Initial
Contribution of such Member as set forth In Exhibit A which is attached hereto. Such property
shall be the Initial Contribution of each such Member and, upon the contribution and
incorporated herein by reference of such initial Contribution, each such Member shall receive
such Member's Membership Interest and the number of Units In the Company set out on Exhibit
A.
5.2 Additional Contributions Each Member shall contribute property to the capital of
the Company the property set opposite their respective name on Exhibit A at the times set out
therein. The obligation of each Member to complete the payment of such Members Additional
Contributions to the Company is a personal recourse obligation which is enforceable by the
Company against such Member and the successors and assigns of such Member in the
manner prescribed by the TBOC or as otherwise permitted' by law, an of which remedies shall
be cumulative and not exclusive.
5.3 Optional Contributions. If, at any time, the revenues and other funds available to
the Company are not adequate 11o meet its obligations, then the Managers shall request the
Members to approve a Call for Optional Contributions (herein so called) in the amount of the
funds required to defray such deficiency. Upon the approval of such Call for Optional
Contributions by a Majority in Interest of all of the Members, then the Managers shall promptly
request each Member in writing to make an Optional Contribution to the Company In the
amount of such Members pro rata share of such Call for Optional Contributions, determined in
accordance with the Members' respective Membership Interests. Each such Optional
Contribution shall be due and payable within ten (10) days after the Managers give the
Members such notice. The obligation of each Member to make an Optional Contribution to the
Company which Is required and authorized in the manner herein prescribed shall be a
nonrecourse obligation which is enfomeable only against the Membership Interest of the
Member failing to make such Optional Contribution by means of a forced sale of ninety percent
(90%) of such Membership Interest (the 'Offered Intereer) in consideration of the payment to
the Company of an aggregate amount equal to the defaulted Optional Contribution either (t) pio
rata (or as they may otherwise agree) to the Members who have agreed to rake their pro rate
portions of such Cal for Optional Contributions; or (1) to the extent that any portion of such
Offered Interest is not purchased by such other Members, then to one or more purchasers who
are not then Members as maybe designated by the Managers.
5.4 Maintenance of Capital Accounts A separate Capital Account shall be
established and maintained for each Member and shall be increased and decreased in
accordance with the following provisions:
(a) Each Members Capital Account will be increased by (t) the amount of
money contributed by such Member to the Cornpargr, (i7 the fair market value of any property
contributed by such Member to the Company; (iii) the amount of any liabilities of the Company
Company Agreement - Bird Pond Road Property, LLC Page 11
that are assumed by the Member or that are secured by any property distributed by the
Company to the Member, and (Iv) the amount of Profits allocated to such Member.
(b) Each Member's Capital Account will be decreased by (i) the amount of
money distributed to such Member by the Company; (ii) the fair market value of any property
distributed to such Member by the Comparry, (ii) the amount of any liabilities of such Member
that are assumed by the Company or that are secured by any property contributed by such
Member to the Company, and (iv) the amount of Losses allocated to such Member.
5.5 Com0ance with Code and Treasury Restulatione. The Members intend that the
terms of this Agreement regarding the computation and maintenance of the Capital Accounts of
the Members shall comply In all respects with the provisions of Section 704(b) of the IRS Code
and Treasury Regulations Section 1.704-1(b)(2)(iv) and applicable provisions of succeeding law
or regulations. The Company shads make such adjustments as may from time to time be
necessary In order to effectuate the intent of the Members with respect to such compliance.
5.6 Effect of Transfers In the event of a permitted sale or other disposition of a
Membership Interest in the Company, the Capital Account of the transferor shalt become the
Capital Account of the transferee to the extent such Capital Account relates to the transferred
portion of the Membersho Interest.
5.7 Ng Interest on Contributions, No Member shall be entitled to receive any interest
on such Member's Capital Contributions to the Company.
5.8 No Withdrawal of Contributions No Member shall have the right to withdraw all
or any part of such Member's Capital Contribution or to receive any return on or of any part of
such Member's Capital Contribution, except as may otherwise be specified in this Agreement.
5.9 No Prioritv. No Member shall have priority over any other Member, either as to
the return of Capital Contributions or as to Profits, losses or disftWions; provided however,
that this subsection shall not apply to bans which a Member has made to the Company with the
approval of the Managers and a Majority in interest of all of the Members.
5.10 Neeative Capital Aooourrts. No Member shad at any time have any liability to the
Company or the other Members for any negative balance in such Capital Accounts except to
the extent that such negatiwa balance arose as the result of distributions In violation of this
Agreement or appicable law.
5.11 Limited Liability of Members. No Member shall be liable for the debts,
obligations or liabilities of the Company beyond such Member's Agreed Contributions to the
Company. No Member shall be required to make any Capital Contribution or ban to the
Company beyond the amount of such Member's Agreed Contribution.
Company Agreement - Bird Pond Road Properly, LLC Pape 12
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 Allocations of Profits and Losses The Profits and Losses of the Company for
each Accounting Year (or portion thereof) shall be allocated among the Members in proportion
to their respective Membership Interests In the Company. Any credit available for federal
Income tax purposes shall be allocated among fie Members in the some manner.
6.2 Interim Distributions. Interim distributions of Distributable Cash shall be made at
such times as shall be determined by the Managers by the Company to the Members pro rata
in accordance with their respective Membership Interests.
6.3 Distributions on Withdrawal. A Member who has completed the payment of such
Member's Agreed Contribution to the Company and who thereafter withdraws from the
Company, and any other Member who withdraws from the Company wkh the consent of a
Majority In Interest of the remaining Members, shall receive an amount equal to the book value
of such Member's Membership Interest in the Company, determined as of the end of the
Accounting Year next preceding the effective date of such withdrawal. Such amount shall be
paid by the Company to such Member In cash without interest within one (1) year after the
effective date of such withdrawal.
6.4 Distributions on Termination Upon the dissolution, and winding-up of the
Company, Its assets shall be distributed in the manner prescribed in Section 9.6 hereof.
6.5 Limitation on Distributions Any other provision hereof to the contrary
notwithstanding, no Interim distribution, withdrawal distribution or termination distribution to any
Member shall be declared and paid unless, after the distribution is made, the fair market value
of the assets of the Company is in excess of all liabilities of the Company other than iabWties to
the Members on account of their Capital Contributions.
6,6 Distributions in Kind. Regardless of the form of a Member's Capital Contribution
to the Company, such Member shall not be entitled to demand or receive a distribution from the
Company In any form other than cash.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 Books and Records. At the expense of the Company, the Managers shall
maintain those books and records required by Sections 3.15 and 101.501 of the TBOC and
such other books and records of account as the Managers, In their reasonable discretion, deem
appropriate full and complete books and records of the operations and expenditures of the
Company at the Principal Office of the Company. Such books and records shall Include,
without limitation, the following:
(a) A current fist that states the name and malling address of each Member
and the Membership interest in the Company owned by each such Member;
Company Agreement - Bird Pond Road Property, UC Page 13
(b) Copies of the federal, state and local information or income tax returns
for each of the Company's six (a) most recent tax years;
(c) A copy of the Certificate and this Agreement, together with all
amendments or restatements thereof, executed copies of any powers of attorney and copies of
any document that creates, in the manner provided by the Certificate or this Agreement, if any,
classes or groups of Members;
(d) Unless contained in the Certificate or this Agreement, a written statement
of the following:
(1) The amount of the cash Capital Contribution and a description
and statement or the agreed value of any other Capital ConhtKWon made by each Member,
and the amount of the cash Additional Contribution and a description and statement of the
agreed value of any other Additional Contribution that the Member has agreed to make in the
future;
(2) The times at which Additional Contributions are to be made or
events requiring Additional Contributions to be made;
wound up; and
Member; and
(3) The events requiring the Company to be dissolved and its affairs
(4) The date on which each Member in the Company became a
(e) Correct and complete books and records of account of the Company
maintained in accordance with its Method of Accounting.
(f) An executed copy of any power of attorney.
7.2 Tax Returns. The Managers shall cause the timely preparation and filing of all
tax returns required to be filed by the Company pursuant to the IRS Code and all other tax
returns deemed necessary and required in each jurisdiction in which the Company does
busktess. Copies of such returns, or pertinent information therefrom, shall be furnished to the
Members within seventy-five (75) days after the end of each Ming Year of the Company.
7.3 Tax Elections. All tax elections permitted to be made by the Company under
federal, state or local laws shall be made by the Managers with the oonsent of a Majority In
Interest of all of the Members.
7.4 Tax Matters Partner. To the full extent permitted by the IRS Code and/or other
applicable law, the Members hereby designate Cody Catalena as the 'Tax Matters Partner' of
the Company as that term is defined in Section 6231(a)(7) of the IRS Code. The Tax Matters
Partner shall be authorized to represent the Company and the Members In any administrative or
judicial proceeding involving the federal income tax liabilities of the Members resulting from the
activities of the Company. Costs and expenses incurred by the Tax Matters Partner in
connection with any such proceeft, including without limitation legal and accounting fees and
expenses, shall be borne by the Company.
Company Agreement -Bird Pond Road Property, UC Pogo 14
ARTICLE VIII
RIGHTS POWERS AND OBLIQATIONS OF MEMBERS
8.1 Authority: UablIfty to Third Parties. No Member (other than a Manager or an
officer) has the authority or power to act for or on behaff of the Company, to do any act that
would be binding on the Company, or to incur any expenditures on behalf of the Company. No
Member (including any Member who is a Manager) shall be liable for the debts. obligations or
liabilities of the Company, including under a judgment decree or orderof a court.
8.2 Restrictions on Transfers. Except as specifically provided herein, the Members
may not sell, assign, transfer, encumber, abandon, or dispose of, by operation of law or
otherwise, any interest in the Company or property or assets of the Company without the
written consent of the Managers. Additionally, any such disposition must comply with the
provisions hereinafter stated in this Article VIII.
8.3 Effect of Transfer of Membership Interest The transfer of a Membership
Interest does not entitle the transferee to become, or to w(erclse rights or powers of, a Member.
A transfer only entitles the transferee to receive cash distributions and allocations of Company's
profits and losses to the extent of the Membership Interest transferred. Until the transferee Is
admitted as a Member, the transferor Member shall continue to be a Member and to be entitled
to exercise any rights or powers of a Member with respect to the Membership Interest
transferred. The Company will not be required to recognize the Interest of any transferee, who
has obtained a purported interest as the result of a Transfef that Is not in accordance with this
Agreement. If the ownership of an Membership Interest is in doubt, or if there is reasonable
doubt as to who is entitled to a distribution of the income realized from an Membership Interest;
the Company may accumcdate the income until this Issue is finally determined and resolved by
either agreement of the persons chiming ownership (to which agreement the Company may be
a party at the Managers` discretion) or a determination of court having jurisdiction.
Accumulated income will be credited to the Capital Account of the Person who is shown as a
Member of record for the Membership Interest in question.
8.4 Admission of Transferee as Member. A transferee of a Member's Membership
Interest shall not be admitted as a Member with respect to such transferred Membership
Interest without obtaining the unanimous written consent of all Members. A transferee of a
Members Membership Interest desiring to be admitted as a Member must execute a
counterpart of, or an agreement adopting, this Agreement. Upon admission of the transferee
as a Member, the transferee shall have, to the extent of the Membership Interest transferred,
the rights and powers and shall be subject b the restrictions and liabilities of a Member under
this Agreement, the Cert'ficate of Formation and the Ad. The transferee shall also be liable, to
the extent of the Membership Interest transferred, for the unfulfilled obligations, ff any, of the
transferor Member to make Capital Contributions, but shall not be obligated for liabilities
unknown to the transferee at the time he was admitted as a Member and that could not be
ascertained from this Agreement. Whether or not the transferee of a Membership Interest
becomes a Member, the transferor Member is not released from any liability to the Company
under this Agreement, the Cert#icate of Formation or the Act.
Company Agreement - BIM Pond Road Property, LLC Page fS
8.5 Right of First Re usal.
(a) In the event any of the Members or any liquidator, receiver, trustee in
bankruptcy or similar authority having control over a Member or a Members assets (the "Soling
Members) shall desire to sell all or any portion of its Interest In the Company to any third party
and it shall have received a bona fide written offer therefor which is acceptable to it, it shall, no
less than thirty (30) days prior to the date of the proposed sale, give written notice (the"Notice
of Sale") to the Managers. The Notice of Sale shall state that a bona fide offer has been
received by the Selling Member from such third party and shall contain the following
information:
offered for sale;
(1) the portion of the Selling Members Interest In the Company
(2) the price, terms and conditions of sale;
(3) the name and address of the third party to whom such interest is
proposed to be sold; and
(4) a copy of the written offer.
(b) The Notice of Sale shall further contain an affirmative offer by the Selling
Member to sell its interest in the Company, or the portion thereof offered for sale, to the
Company for the same consideration and upon the same terms and conditions set forth In the
Notice of Sale.
(c) The Company shall have the option, for a period of thirty (30) days from
the date such Notice of Sale is provided to It, within which to exercise is option to purchase the
Selling Members IntenesL If the Company elects to acquire the Selling Members Interest. it
shall notify such Soling Member of such election in writing prior to the expiration of the thirty
(30) day period. The dosing shall take place at the offices of the Company at such time, not
later than fiffsen (15) days after expiration of the option period, as the Soling Member and the
Company may agree to in writing.
(d) In the event the Company does not exercise Its option to purchase the
Membership Interest of the Selling Member, the Members of the Company, other than the
Selling Member (the "Acquiring Members"), shall have the option to purchase the Membership
Interest the Cam pony did not purchase in accordance with the terms of the Notice of Sale and
in accordance with their proportionate Interest In the Company. Such option shall be exercised
by sending written notice thereof to the Selling Member and the Comp any within thirty (30) days
after the expiration of the option of the Company.
(e) In the event that neither the Company nor the Acquiring Members
exercise their option to purchase the Membership Interest of the Selling Member, the Soling
Member shall have the right to sell such Membership Interest strictly in accordance with the
terms of the Notice of Sale. If no such sale is made within ninety (90) days fdlowing expiration
of the option period, a new Notice of Sale shal be required in the manner provided
Company Agreemenf - BW Pond Road Property, LLC Page 16
hersinbefore. Notwithstanding any sale pursuant to this Section 8.5, any transferee must
comply with the provisions of Section 8.4 hereof to be admitted as a substitute Member.
(f) Notwithstanding anything to the contrary contained in this Section 8.5, no
Member who is in breach of this Agreement, which breach is still continuing, shall be entitled to
exercise any rights under this Section 8.5.
8.6 Closing. Any sale and purchase of Membership Interests in accordance with the
provisions of this Article shall be dosed within ten (10) days after the determination of which of
the Members Is to purchase the Membership Interest of the other as above provided and all
requisite documents, Instruments and papers shall be signed at the offices of the Company on
the day fixed for such dosing.
8.7 Failure to Close. In the event that any Member shall, by operation of the
provisions of this Article, have elected to purchase the Membership Interest of any other
Member and shall fail to dose such purchase and sala within the time period provided in this
Article (through no fault of the selling Member), the selling Member shall have the option, In
addition to and not in Neu of any other rights or remedies, to acquire the Membership Interest of
the Member who was to purchase his Membership Interest upon substantially the same terms
and conditions as the selling Member would have been required to sell his Membership Interest;
provided, however, the purchase price per share for such Membership Interest shall be reduced
by twenty-five peroant (25%). Such option shall be exercisable for a period of thirty (30) days
after the scheduled closing date.
8.8 Purchase on Death Upon the death of a Member ("Deceased Memberr), such
Deceased Member's legal representatives or successors In Interest shall be treated as
transferees who have been admitted as Members.
8.9 Purchase on Termination.
(a) In the event a Member resigns or his employment with the Company is
terminated with or without cause ("Temhinatled Member"), then the Company shall have the
option to purchase all of the Membership Interest of the Terminated Member. Such option shall
be exercised by sending written notice to the Terr(inated Member and shall a)pire ninety (90)
days after the effective date of such resignation or termination. The purchase price for such
Membership Interest shall be that amount which would have been payable pursuant to the
provisions of Section 8.8 had the Terminated Member died on the effective date of such
resignation or termination.
(b) Upon the failure of the Company to exercise its option to purchase all of
the Membership Interest of the Terminated Member, the other Members shall have the option to
purchase the Membership Interest of the Terminated Member which the Company did not
purchase at the same price and terms available to the Company. Such option shell be
exercised by sending written notice thereof to the Terminated Member and the Company within
thirty (30) days after the expiration of the option of the Company.
(c) If the Company and/or the Members fall to exercise their opions to
purchase all of the Membership Interest of the Terminated Member prior to the expiration of
Company Agreement - Bird Pond Road Property, LLC Page 17
their respective options, then all of the Interest of the Terminated Member shall be retained by
him and remain subject to the terms of this Agreement.
8.10 Purchase on Transfer by Operation of Law.
(a) In the event a Transfer of Membership Interest of a Member is effected
(and is not void as otherwise provided In this Agreement) by operation of law (other than death
of the Member, divorce of the Member, or resignation or termination of the Memeber)
Including, but not Omited to, any bankruptcy proceedings or any appointment of a receiver of the
assets of such Member ("Transferring Member"), the Transferring Member shall send to the
Company, within fire (8) dam after such transfer, notice of such transfer ("Transfer Notice"),
which Includes the name and address of the transferee of such Interest ("Transferee").
(b) The Company shall have the option to purchase all of the Membership
Interest of the Transferring Member, wMch was transferred ("Transferred Interest") to the
Transferee. Such option shall be exercised by sending written notice W the Transferring
Member and to the Transferee and shall expire ninety (90) days after the Transfer Notice is
received by the Company. The purchase price for the Transferred Interest shall be that amount
which would have been payable pursuant to the provisiorfs"of Section 8.8 had the Transferring
Member died on the date of such transfer.
(c) Upon the fallure of the Company to exercise its option to purchase all of
the Transferred Interest, the remaining Members shall have the option to purchase the
Transferred Interest which the Company did not purchase at the same price and tears
available to the Company. Such option shall be exercised by sending written nottae thereof to
the Transferee within one hundred and twenty (120) days after the Transfer Notice Is received
by the Company.
(d) If the Company andlor Members fail to exercise their options to purchase
all of the Transferred Interest prior to the expiration of their respective options, then all of the
Transferred Interest shall be retained by the Transferee subject to the terms and conditions of
this Agreement and such Transferee shag thereupon be considered a 'Member" as that term is
used and defined herein. Such Transferee shag execute such documents as are reasonably
requested by the Company to evidence the above.
8.11 Other Business The Members may engage In or possess interests in other
business ventures (unconnected with the Company) of every kind and description,
independently or with others, including businesses competitive with that of the Company.
Neither the Company nor the other Members shall have any rights in or to such independent
ventures or the income or profits therefrom.
ARTICLE IX
WINDING UP AND TERMINATION
9.1 Event Requiring a WindiM W. Except as set out below, upon the happening of
the first to occur of the following events. The Company will begin to wind up its affairs:
Company Agreement - Bird Pond Road Property, LLC Page 9s
(a) Upon the execution of an instrument approving the winding up of the
Company by all of the Managers or all of the Members;
(b) Upon the death, retirement, resignation, expulsion, bankruptcy, legal
incapacity or termination of any Member or the occurrence of any other event which terminates
the membership in the Company of any Member, unless there is at least one remaining
Member and the business of the Company is continued by the consent of all of the remainkg
Members within ninety (90) days after the occurrence of such event; or
(c) The last remaining Member discontinues being a Member of the
Company.
(d) The occurrence of a non-waivabip event under the terms of the TBOC
which requires the winding up of the Company
9.2 Revocation. If an event of the type described in Section 9.1(a) occurs or any
other voluntary act of the Members which require a winding up of the Company, the event may
be revoked at any time prior to the termination of the Company by a determination of Majority of
the Members.
9.3 Cancellation
(a) If an event of the type described in Section 9.1(c) occurs, the event may
be cancelled, in writing, at any time within 1 year after the occurrence of such event if (a) the
personal representative of the last Member agrees in writing to (i1 a continuation of the
Company and (ii) the admission of the personal representative of the Member or Its nominee or
designee as a Member, or (b) a new Member is admitted to the Company by either the personal
representative of the last Member, the Managers, or a Majority of the Assignees (in the case
only, allowing the assignees of such Membership Interest to vote the Units of the Membership
Interest they have been assigned).
(b) If an event of the type described in Section 9.1(d) occurs, the event may
be cancelled, in writing, at any time wilt 1 year after the occurrence of such event if such
action meets the requirements of Section 11.152(d) of the TBOC.
9.4 Interim Manager. If an event requiring winding up occurs and there is no
remaining Manager, a Majority of the Members may appoint an interim manager of the
Company, who will have and may exercise only the rights, powers, and duties of the Managers
necessary to preserve the Company assets, until new Managers, If any, are elected.
9.5 Effect of Event Reguidng a Winding Up. If an event requiring a warding up
occurs and Is not canceled or revoked, the Company will begin winding up its affairs and will
continue until the ash have been distributed as set out below:
9.6 Winding Us) and Termination
(a) General. As expeditiously as possible foloWng the occurrence of an
event requiring a winding up, the Managers will proceed to wind up the affairs of the Company,
Company Agreemera - Bird Pond Road Praperiy, LLC Page 19
liquidate assets, pay liabilities, and matte liquidating distribbuffons to the Members, in the
following order of priority:
(1) the Managers shall cause an aooounting to be made by a
recognized firm of certified public accountants of the Company's assets, liabilities, and
operations through the lest day of the calendar month In which the event requiring winding up
occurs;
(2) the Managers will use commercially reasonable efforts to
maximize the value of the Company assets and than to sell Company assets. Any resulting
Profits or Losses from each sale will be computed and allocated to the Capital Accounts of the
Members in the manner described In Article 6;
(3) the Managers shall cause the notice described in Section 11.052
of TBOC to be mailed to each known creditor of and claimant against the Company in the
manner described in that Section);
(4) the Managers will pay. to the extent there are funds available
therefor, all of the Company's obligations and establish sGch reserves as the Managers deems
prudent (the'Liquidatbn Reserve");
Members as follows:
(5) all remaining assets of the Company shag be distributed to the
(A) with respect to all Company property that has not been
sold, the fair value of that property shall be determined and the
Capital Accounts of the Members shall be adjusted to reflect the
manner in which the unrealized income, gain, loss, and deduction
inherent in property that has not been reflected in the Capital
Accounts previously would be allocated among the Members if
there were a taxable disposition of that property for the fair value
of that property on the date of distribution; and
(B) Company property shall be distributed among the
Members In accordance with the positive capital account balances
of the Members, as determined after taking Into account all capital
account adjustments for the taxable year of the Company during
which the liquidation of the company occurs; and those
distributions shall be made by the end of the taxable year of the
Company during which the liquidation of the Company occurs (or,
if later, 90 days after the date of the iqukation).
(C) AN distributions in kind to the Members shall be made
subject to the liability of each $wIrlbutee for costs, expenses, and
liabilities theretofore incurred or for which the Company has
committed prior to the date of termination and those costs,
expenses, and liabilities shall be allocated to the distributee
pursuant to this Article.
Company Agreement - Bird Pond Road property, LLC page 20
(D) all remaining cash and other Company property (other
than the Liquidation Deserve) will be distributed among the
Members as set out in Article 8.
(E) The distribution of cash and/or property to a Member in
accordance with this Article constitutes a complete return to the
Member of Its Capital Contributions and a complete distribution to
the Membersof Its; Membership Interest.
(b) Powers. Until final distribution, the Managers will continue to operate the
Company properties wth all of the power and authority of the Managers.
(c) Cost of IJauldation. The costs of liquidation will be borne as a Company
expense.
(d) Termination: Release of Liarldation Reserve. At the time such
distributions are made and the Liquidation Reserve established in accordance with subsection
(a), the Company will terminate, but if at any time thereafter any of the funds in the 1-4uklation
Reserve are released because, in the opinion of the Managers, the need for such reserve has
ended, such funds will be distributed in accordance with subsection (a).
(e) No Recourse. No Member will have any recourse against the Company
or any other Member for the aetum of its Capital Contributions or any distributions not required
by this Agreement.
9.7 Cancellation of Certificate. On completion of the distribution of Company assets
as provided herein, the Company is terminated, and the Managers (or such offm person or
persons as the TBOC may require or permit) will cause the cancellation of the Certificate and
any other filings made by the Company and wig take such other actions as may be necessary to
terminate or reflect the termination of the Company.
9.8 Iplstributlons in Kind. If any assets of the Company are distributed in kind, such
assets shall be distributed to the Members entitled thereto as tenants in common in the some
proportions as the Members would have been entitled to cash distributions IF such property has
been sold for cash and the not proceeds thereof distributed to the Member. In the event that
distributions in kind are made to the Members upon termination and liquidation of the Company,
the Capital Account balances of such Members shaft be adjusted to reflect the Members'
allocable share of gain or loss which would have resulted if the distributed property had been
sold at its fair market value.
ARTICLE X
CERTIFICATES REPRESENTING MEMBERSHIP INTEREST
10.1 Form of Certificates. The Company shag deliver certificates representing all
Units to which Members are entitled. Certificates representing Units shall be in such form as
shag be determined by the Members and shag be numbered consecutively and entered in the
books of the Company as they are Issued. Each certificate shall state on the face thereof that
the Company Is organized under the law of this State, the holder's name and the number of
Company Agreement - Blvd Pond Road Pfoptfly. LLC Page 21
Units. They shall be signed by the Manager(s) or by the President or a Vice President and the
Secretary or an Assistant Secretary, and may be seated with the seal of the Company or a
facsimile thereof if the Company shalt then have a seal.
102 Lost Certificates. The Members may direct that a new certificate be Issued in
place of any certificate theretofore issued by the Company alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to
be lost or destroyed. When authorizing the issue of a new certificate, the Members, in its
discretion and as a condition precedent to the issuance thereof, may require the owner of the
lost or destroyed certificate, or his legal representative, to advertise the same in such manner
as it shall require and/or give the Company a bond in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be made against the
Company with respect to the certificate alleged to have been lost or destroyed.
10.3 Transfer of Membership Interest Units may be transferable only on the books of
the Company by the holder thereof in person or by has duly authorized attorney and, upon
surrender to the Company or to the transfer agent of the Company of a certificate representing
the Units duly endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, it shall be the duty of the Company or-the transfer agent of the Company
to issue a new certificate to the person entitled thereto (provided such person has complied with
the requirements of this Agreement, and the transfer has been approved by a Majority in
Interest of the Members) cancel the old certificate, and record the transaction upon Its books.
10.4 Restriction on Transfer. Any restrictions imposed by the Company on the sale or
other disposition of its Membership Interest and on the transfer thereof must be copied at length
or in summary form and placed oonspicuously on the face of each certificate representing
Membership Interest t0 which the restriction apples. The certificate may, however, state on the
face that such a restriction exists pursuant to a specified document and that the Company will
furnish a copy of the document to the holder of the certificate without charge upon written
request to the Company at its principal place of business.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Noticea. Any notice, demand or communication required or permitted to be
given by any provision of this Agreementshell be made in writing, shall be sent or addressed as
set forth below and shall be deemed to have been suMclenty given or served for al purposes
(1) upon actual receipt thereof, If given by regular mail, personal delivery, courier service,
telegram, telex, facsimile transmission or other commercially reasonable means; and (n) upon
the earfier of actual receipt of three (3) business days after being deposited in a receptacle for
the deposit of mail regularly maintained by the U.S. Postal Service, IF given by registered or
certified mail, return receipt requested, with postage and charges prepaid Notices and other
communications to the Company shall be sent or addressed to its Principal Office and notices
and other communications to the Members shall be sent or addressed to their last known
address as it appears on the records of the Company. The Company and any Member shall be
entitled to change any such address for notice purposes upon giving not less than ten (10)
days' prior written notice of such change of address to the Company or the Member, as may be
applicable.
Company Agreement - Bind Pond Road Property, LLC Page 22
112 Governing Low. This Agreement and the constriction. interpretation and
application thereof, shall be governed exclusively by the TBOC and other applicable laws of the
State of Texas.
11.3 No Partition Action. No Member (or former Member) shall have any right to
maintain any action for partition with respect to the property of the Company or with respect to
any assets distributed to the Members in kind as tenants in common upon the winding up and
termination of the Company.
11.4 Cautions and Headings. The captions and headings used in this Agreement are
for convenience of reference only and shall not be taken into account in construing the meaning
and/or Intent of this Agreement.
11.5 Amendment of Certificate The Certificate may be amended. supplemented or
restated only by written consent of a Majority in Interest of all of the Members. Upon obtaining
the approval of any such amendment, supplement or restatement as to the Certificate, the
Managers shall cause an amended certificate of formation to be prepared, executed and filed in
accordance with the TBOC.
11.8 Amendment of this Aaree ment Except as herein otherwise expressly provided,
this Agreement may be amended. supplemented or restated only by written consent of a
Majority in Interest of al of the Members.
11.7 Number and Gender. Where the context so Indicates, the singular shall Include
the plural, the use of any gender shall include all other genders and any reference to the term
"person" shall include an individual and a corporation, limited liability company, assoclatlon,
partnership, joint venture, estate, trust or any other entity.
11.8 Binding Effect. Except as herein otherwise expressly provided, this Agreement
shall be binding upon and" inure to the benefit of the Managers and the Members and their
respective heirs, legal representatives, executors, administrators, distributes, successors and
assigns.
11.9 Seyerabiity, g any one or more of the provisions contained in this Agreement for
any reason are held t0 be Invalid, illegal or unenforceable In any respect, such invalidity,
illegality or unenforceabilty shalt not affect any other provisions hereof and this Agreement shag
be construed as if such irnalid, Illegal or unenforceable provisions had never been contained
herein.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an orlgkW and shall be binding upon the Manager or Member who
executed same, but all of such counterparts together shy ccwa tuta ona instrument VW Wor
be sufficiently evidenced by one counterpart.
Company Agreement - Bind Pond Road Property, LLC Page 23
IN WITNESS WHEREOF, the undersigned Members and Managers have adopted and
signed this Agreement as of the date first written above.
AL &I a ^jzftdQ
CODY TALENA, Manager
METE CATALENA, Manager
MEMBERS:
CODY ALENA
Company Agreement - Bird Pond Road Property, LLC Page 24
EXHIBIT A
NAMES, AGREED CONTRIBUTIONS,
MEMBERSHIP INTERESTS AND PERCENTAGE OWNERSHIP OF MEMBERS
Names and
Initial
Addresses
C°nIri¢uton
Cody Catalans
$QD.00
2110 Frost or
Collage Stason, TX 7780
Pate Catalano
S350M
1001 Bkd Pond Road
College Station. TX 77845
NaW4
1 w
M-00
Addmu:
Z~2
IQ✓t
Name: d k UsY :s FC D Z-"
Address- v31 t X7550100
CJ'rss~k-13c 79~e9
Company Agreement - Bird Pond Road Property, LLC
Percentage Membership Percentage
Contributcyns In Ownenhip
$400.00 400 Units 40%
$360.OD 350 Units 35%
5200.00 200 Units 20%
550.00 50 Units 5%
Pape 25
y
979 693 8819 THE ELLISON FIRM 01:59:23 p.m. 05-15-2006 516
FILED
In the Office of the
Secretary of State of Texas
MAY 15 2006
• CERTIFICATE OF FORMATION ~~a
(Limited Liability Company) Mons Section
BIRD POND ROAD PROPERTY, LLC
1, the undersigned natural person of the age of eighteen years or more, acting as the
organizer of a limited liability company under the Texas Business Organizations Code, do
hereby adopt the following Certificate of Formation for such Company:
ARTICLE I
The filing entity being formed is a limited liability company.
ARTICLE II
The name of the entity Is Bird Pond Road Property, LLC (the "Company").
ARTICLE III
0
The purpose for which the Company is organized is to transact any or all lawful business
for which limited liability companies may be organized under the Texas Business Organizations
Code.
ARTICLE IV
The period of duration of the Company Is perpetual.
ARTICLE V
The address of the Company's principal place of business in Texas Is as follows:
2908 Finfeather Road
Bryan, Texas 77801
ARTICLE VI
The name and address of the Company's initial registered agent and registered office in
Texas are as follows:
Cody Catalena
2908 Finfeather Road
Bryan, Texas 77801
r 1
U
1
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3.8.10
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•
ARTICLE VII
The Company Is to be managed by one or more managers. The names and addresses
of the persons who are to serve as managers until the first annual meeting of the members or
until their successors are elected and qualified are as follows:
Cody Catalena
2908 Finfeather Road
Bryan, Texas 77801
Pete Catalena
2908 Finfeather Road
Bryan, Texas 77801
ARTICLE VIII
The name and address of the organizer of the Company are as follows:
Bradley T. Sharpe
The Ellison Firm
302 Holleman Drive East, Suite 76
• College Station, Brazos County, Texas 77840-7000
The undersigned organizer executed this document on May 15, 2006, subject to the
penalties imposed by law for the submission of a materially false or fraudulent instrument.
Bradley . Sharpe, O anizer