Authority of the Managing Member. (a) The Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power to bind or take any action on behalf of the Company, or to exercise in its sole discretion any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement, or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests of any Subsidiary thereof. (b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law. (c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have the general power to manage or cause the management of the Company (which may be delegated to officers of the Company) to, directly or indirectly, undertake any of the following: (i) to develop and prepare a business plan each year which will set forth the operating goals and plans for the Company; (ii) to execute and deliver or to authorize the execution and delivery of contracts, deeds, leases, licenses, instruments of transfer and other documents on behalf of the Company; (iii) to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations; (iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions; (v) to engage attorneys, consultants and accountants for the Company; (vi) to develop or cause to be developed accounting procedures for the maintenance of the Company’s books of account; and (vii) to do all such other acts as shall be authorized in this Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Bakkt Holdings, Inc.), Merger Agreement (VPC Impact Acquisition Holdings)
Authority of the Managing Member. (a) The Subject to the provisions of this Agreement and the Act, the Managing Member shall conductis specifically authorized and empowered, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power to bind or take any action on behalf of the CompanyCompany without any further consent of any other Member, to do any act or to exercise in its sole discretion execute any rights and powers (including the rights and powers to take certain actions, give document or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement, enter into any contract or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests agreement of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrarynature necessary or desirable, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance opinion of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights pursuance of the Holders of Common Units under this Agreement or applicable law.
(c) Without limiting the foregoing provisions of this Section 6.1Purpose, the Managing Member shall have the general power to manage or cause the management of the Company (which may be delegated to officers of the Company) toincluding, directly or indirectlywithout limitation, undertake any of the following:
(i) to develop entering into, making and prepare a business plan each year which will set forth performing contracts, agreements and other undertakings binding upon the operating goals Company that may be necessary, appropriate or advisable in furtherance of the Purpose and plans for the Companymaking all decisions and waivers thereunder;
(ii) to execute opening and deliver or to authorize the execution maintaining bank and delivery of contractsinvestment accounts and arrangements, deeds, leases, licenses, instruments of transfer drawing checks and other documents on behalf orders for the payment of the Companymoney, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements;
(iii) purchasing CLNY Stock pursuant to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences the terms of indebtedness and to incur any other obligationsthis Agreement;
(iv) to establish and enforce limits maintaining the assets of authority and internal controls with respect to all personnel and functionsthe Company in good order;
(v) to engage attorneys, consultants and accountants for collecting sums due the Company;
(vi) to develop or cause to be developed accounting procedures the extent that funds of the Company are available therefor, paying debts and obligations of the Company;
(vii) selecting, removing and changing the authority and responsibility of lawyers, accountants, and other advisers and consultants;
(viii) obtaining insurance for the maintenance Company;
(ix) determining distributions of the Company in cash and other property solely as provided in Section 4; and
(x) doing and performing any and all other acts as may be necessary or appropriate to the conduct of the Company’s books of account; andbusiness.
(viib) The decisions made by the Managing Member may be implemented through any Member, any officer of the Company or any other Person selected by the Members. The Company shall not have any “managers” within the meaning of Section 18-101(9) of the Act.
(c) The Managing Member hereby ratifies the adoption of the regulations attached to do this Agreement as Schedule B authorizing certain officers to act on behalf of the Company, all such other acts as more particularly described in Schedule B. The officers shall have full authority to manage the day-to-day operations of the Company. No officer of the Company shall be authorized in this Agreemententitled to any compensation for his or her service as an officer of the Company.
(d) CLNY (the “Managing Member”) is hereby appointed as the “managing member” of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Colony Capital, Inc.), Limited Liability Company Agreement (Colony Capital, Inc.)
Authority of the Managing Member. (a) The Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power to bind or take any action on behalf of the Company, or to exercise in its sole discretion any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted Except as expressly provided -------------------------------- to the Company under contrary in this Agreement, or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law.
(c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have co-existent authority with the general power to manage Members over the daily routine and ordinary management and control of the LLC business. Except as expressly provided in this Agreement or cause as expressly directed by a vote of the holders of a majority of the Ownership Interests, the Managing Member shall have no additional authority regarding management of the Company (which may be delegated to officers LLC. All of the Company) authority to manage the LLC and make all decisions and bind and obligate the LLC shall remain with the Members. The Members shall retain all rights to manage the LLC, which shall include, but not be limited to, directly or indirectly, undertake any of the following:
(ia) take all action necessary or desirable to develop acquire the Property and, own, manage and prepare a business plan each year which will operate the Business of the LLC as set forth the operating goals and plans for the Companyherein;
(iib) sell or mortgage or otherwise dispose of or encumber or take any action with regard to execute the LLC Property;
(c) acquire such insurance as the Members deem reasonable and deliver advisable;
(d) pay, collect, compromise, arbitrate or to authorize otherwise adjust any and all claims or demands of or against the LLC;
(e) act for the LLC in all transactions concerning the LLC Business and/or the LLC Property or underlying property, including execution and delivery of contracts, deeds, leases, licenses, instruments of transfer and other documents on behalf of the CompanyLLC of all documents in connection therewith;
(iiif) to make any expendituresemploy at the LLC's expense such persons, to lend or borrow moneyfirms, to assume or guaranteecompanies, or otherwise contract foragents, indebtedness employees, attorneys, accountants, financial advisors, business consultants, and such other liabilitiesprofessional personnel, to issue evidences including Affiliates of indebtedness and to incur any other obligationsthe Members;
(ivg) establish bank accounts for the LLC funds, authorize designees to establish disburse such funds on behalf of the LLC, and enforce limits of authority and internal controls with respect to all personnel and functionsfor such purpose;
(vh) to engage attorneysnegotiate with and compensate, consultants as required, any governmental authorities regarding assessments, taxes and accountants for the Companyrelated matters;
(vii) to develop invest LLC funds in any form of bank accounts, government obligations, stocks, bonds or cause to be developed accounting procedures for the maintenance of the Company’s books of account; andany other investment;
(viij) admit Members to do all such other acts the LLC as shall be authorized in this Agreement.provided herein;
Appears in 1 contract
Authority of the Managing Member. Except for situations in which the approval of one or more of the Members is specifically required by the express terms of this Agreement, and subject to the provisions of this Article V, (ai) The all management powers over the business and affairs of the Company shall be exclusively vested in the Managing Member, (ii) the Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over , and (iii) the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the sole power to bind or take any action on behalf of the Company, or to exercise in its sole discretion any rights and powers (including including, without limitation, the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, judgments or other decisions) granted to the Company under this Agreement, Agreement or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding party. Without limiting the equity interests of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member generality of the Company under foregoing, but subject to any situations in which the approval of the Members is specifically required by this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law.
(cx) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have discretion in determining whether to issue Equity Securities, the general power number of Equity Securities to manage be issued at any particular time, the purchase price for any Equity Securities issued, and all other terms and conditions governing the issuance of Equity Securities and (y) the Managing Member may enter into, approve, and consummate any Liquidity Event or cause the management other extraordinary or business combination or divestiture transaction, and execute and deliver on behalf of the Company or the Members any agreement, document and instrument in connection therewith (including amendments, if any, to this Agreement or adoptions of new constituent documents) without the approval or consent of any Member. The Managing Member shall operate the Company and its Subsidiaries in accordance in all material respects with an annual budget, business plan and financial forecasts for the Company and its Subsidiaries for each fiscal year. The Managing Member shall be the “manager” of the Company for the purposes of the Delaware Act. The Managing Member is hereby designated as authorized person, within the meaning of the Delaware Act, to execute, deliver and file the certificate of formation of the Company and all other certificates (and any amendments and/or restatements hereof) required or permitted by the Delaware Act to be filed in the Office of the Secretary of State of the State of Delaware. The Managing Member and Members hereby approve and ratify the filing of the following documents with the Secretary of State of the State of Delaware: (i) the Certificate of Formation of the Company by Xxxxx Xxxxxx, as authorized person, (ii) the Certificate of Amendment to the Certificate of Formation of the Company by Xxxxxxx Xxxxx, as authorized person, and (iii) the Certificate of Merger of the Company by Xxxxxxx Xxxxx, as authorized person. The Managing Member is hereby authorized to execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may be delegated wish to officers conduct business. Notwithstanding any other provision of this Agreement to the contrary, without the consent of any Member or other Person being required, the Company is hereby authorized to execute, deliver and perform, and the Managing Member or any officer on behalf of the Company) to, directly or indirectly, undertake any of the following:
(i) to develop and prepare a business plan each year which will set forth the operating goals and plans for the Company;
(ii) is hereby authorized to execute and deliver (a) the Merger Agreement; (b) any other document, certificate or contract relating to authorize or contemplated by the execution Corporate Conversion; and delivery (c) any amendment and any agreement, document or other instrument contemplated thereby or related thereto. The Managing Member or any officer is hereby authorized to enter into the documents described in the preceding sentence on behalf of contractsthe Company, deeds, leases, licenses, instruments but such authorization shall not be deemed a restriction on the power of transfer and the Managing Member or any officer to enter into other documents on behalf of the Company;
(iii) to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations;
(iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions;
(v) to engage attorneys, consultants and accountants for the Company;
(vi) to develop or cause to be developed accounting procedures for the maintenance of the Company’s books of account; and
(vii) to do all such other acts as shall be authorized in this Agreement.
Appears in 1 contract
Authority of the Managing Member. (a) The Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power authority on behalf and in the name of the Company to bind or perform all acts necessary and desirable to the objects and purposes of the Company, subject only to the restrictions expressly set forth in this Agreement (including Sections 4.3 and 4.4 ) and subject to the rights of the Company Liquidator to liquidate the Company and take any action all actions incidental thereto during the Liquidation Period. Subject to such restrictions, the authority of the Managing Member shall include the authority to:
(i) engage in transactions and dealings on behalf of the Company, or to exercise in its sole discretion including transactions and dealings with any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement, Member or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests Affiliate of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law.
(c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have the general power to manage or cause the management of the Company (which may be delegated to officers of the Company) to, directly or indirectly, undertake any of the following:
(i) to develop and prepare a business plan each year which will set forth the operating goals and plans for the Company;
(ii) call meetings of Members or any class or series thereof;
(iii) make Distributions on account of Member Interests in accordance with the provisions of this Agreement and the Act, provided, that all such Distributions shall be in cash unless otherwise consented to execute by all Members;
(iv) appoint (and deliver or to authorize the execution dismiss from appointment) officers, attorneys and delivery of contracts, deeds, leases, licenses, instruments of transfer and other documents agents on behalf of the Company, and engage (and dismiss from engagement) any and all persons providing legal, accounting or financial services to the Company, or such other Persons as the Managing Member deems necessary or desirable for the management and operation of the Company;
(iii) to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations;
(iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions;
(v) incur and pay all expenses and obligations incident to engage attorneys, consultants the operation and accountants for management of the Company;
(vi) subject to develop the provisions of Section 11, effect a dissolution of the Company after the occurrence of a Termination Event and, to the extent provided in Section 11, act as Company Liquidator for the purpose of winding up the Company's affairs, all in accordance with the provisions of this Agreement and the Act;
(vii) bring and defend (or settle) on behalf of the Company actions and proceedings at law or equity before any court or governmental, administrative or other regulatory agency, body or commission or any arbitrator or otherwise;
(viii) prepare or cause to be developed accounting procedures prepared reports, statements and other relevant information for distribution to Members as may be required by this Agreement or the maintenance of Act and any additional information determined to be appropriate by the Managing Member from time to time;
(ix) execute, deliver and perform the Company’s books of account's obligations under any Operative Documents to which the Company is a party, including any certificates and other documents and instruments related thereto;
(x) prepare and file all necessary returns and statements and pay all taxes, assessments and other impositions applicable to the Company Property pursuant to Section 8.2; and
(viixi) to execute all other documents or instruments, perform all duties and powers and do all such other acts as shall be authorized things for and on behalf of the Company in this Agreementall matters necessary or desirable for or incidental to the foregoing.
Appears in 1 contract
Samples: Company Agreement (Calair LLC)
Authority of the Managing Member. 4.2.1 In addition to any other rights and powers that the Managing Member may have hereunder, the Managing Member, in its capacity as such, shall have all of the rights and powers that are necessary for or convenient or incidental to the accomplishment of the Company’s purposes and the conduct of the Company’s business, which rights and powers shall include (awithout limitation) The the following:
(1) To make expenditures of Company funds in accordance with this Agreement and the reasonable needs of the Company’s business;
(2) To borrow money and issue evidences of indebtedness (and to issue guarantees of indebtedness), including borrowings from one or more of the Members, and to secure the same by mortgage, deed of trust, pledge or other lien on any assets of the Company and to pay, prepay, repay, extend and amend or otherwise modify the terms of any such borrowings or evidences of indebtedness;
(3) To negotiate, execute, deliver, perform, modify, supplement, amend and terminate any contract, instrument or other document necessary for, or convenient or incidental to, the accomplishment of the Company’s purposes and the carrying on of the Company’s business, including but not limited to agreements with architects, contractors, cost estimators and other real estate professionals, purchase and sale agreements, notes, security agreements and lease agreements;
(4) To employ executive, administrative and support personnel in connection with the business of the Company, to pay salaries, employee benefits, fringe benefits, bonuses and any other form of compensation or employee benefit to such Persons, at such times and in such amounts as may be determined in the reasonable discretion of the Managing Member, and to reimburse the Managing Member for expenses incurred by it (directly or indirectly) in order to provide executive, administrative and support services in connection with the business of the Company;
(5) To hire or otherwise employ and enter into employment consulting agreements in connection therewith, such agents, contractors, subcontractors, employees, accountants, attorneys, consultants and other persons necessary or appropriate to carry out the day-to-day management and operations of the Company, and enter into employment and consulting agreements in connection therewith, and to pay reasonable fees, expenses, salaries, wages and other compensation to such Persons;
(6) To pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend, contest or compromise, upon such terms as they may determine and upon such evidence as they may deem sufficient, any obligation, suit, liability, cause of action or claim, including taxes and assessments, either in favor of or against the Company;
(7) To establish and maintain reserves for such purposes and in such amounts as the Managing Member shall conduct, direct deem appropriate from time to time;
(8) To pay any and exercise full control over all activities fees and to make any and all expenditures which the Managing Member shall deem necessary or appropriate in connection with the organization of the Company. All , the management powers over of the affairs of the Company, and the carrying out of its obligations and responsibilities under this Agreement;
(9) To cause the Company and its properties and assets to be maintained and operated in such manner as the Managing Member may determine, subject, however, to obligations imposed by applicable laws or contracts of the Company;
(10) To cause to be obtained and continued in force policies of insurance required by any agreement relating to the Company’s business or any part thereof, or reasonably determined by the Managing Member to be in the best interest of the Company;
(11) To ask for, collect and receive any fees, issues, proceeds, profits and income from operations of or services rendered by the Company and sales or other dispositions of the assets of the Company, or any part or parts thereof, and to disburse Company funds for Company purposes to those Persons entitled to receive the same;
(12) To establish, maintain and supervise the deposit of any monies or securities of the Company with federally insured banking institutions, brokerage houses or other institutions as may be selected by the Managing Member, in accounts in the name of the Company, and to make expenditures from such accounts in accordance with this Agreement upon such signature or signatures as the Managing Member may determine;
(13) To establish and maintain Capital Accounts for the Members, allocate profits, losses and other items and make distributions to the Members, all as provided herein;
(14) To perform all acts and file all documents (including without limitation registrations, license applications, foreign qualifications, disclosure forms and tax returns) necessary to comply with laws, rules and regulations applicable to the Company or the conduct of its business;
(15) To undertake such obligations (including without limitation financial and/or performance guarantees) and agree to provide such services (including without limitation development and supervisory management services) as may be necessary or appropriate in connection with the syndication or financing of the Project;
(16) To make elections for the Company pursuant to Section 13.4 or otherwise; and
(17) To conduct the affairs of the Company shall be vested with the general objective of financial gain.
4.2.2 Any Person dealing with the Company may rely upon a certificate signed by or on behalf of the Managing Member as to:
(1) the identity of the Members;
(2) the existence or non-existence of any fact or facts which constitute conditions precedent to acts by the Managing Member or in any other matters germane to the affairs of the Company;
(3) the Persons who are authorized to execute and deliver any instrument or document of the Company; or
(4) any act or failure to act by the Company or, as to any other matter whatsoever involving the Company or any Member.
4.2.3 Any document executed by or on behalf of the Managing Member. The Managing Member shall have , while acting in the power to bind or take any action name and on behalf of the Company, or shall be deemed to exercise in its sole discretion any rights and powers (including be the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement, or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member action of the Company under this Agreement, the Members and the Managing vis-a-vis any third parties (including any Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and as a third party for such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable lawpurpose).
(c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have the general power to manage or cause the management of the Company (which may be delegated to officers of the Company) to, directly or indirectly, undertake any of the following:
(i) to develop and prepare a business plan each year which will set forth the operating goals and plans for the Company;
(ii) to execute and deliver or to authorize the execution and delivery of contracts, deeds, leases, licenses, instruments of transfer and other documents on behalf of the Company;
(iii) to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations;
(iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions;
(v) to engage attorneys, consultants and accountants for the Company;
(vi) to develop or cause to be developed accounting procedures for the maintenance of the Company’s books of account; and
(vii) to do all such other acts as shall be authorized in this Agreement.
Appears in 1 contract
Samples: Operating Agreement
Authority of the Managing Member. (a) The Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power to bind or take any action on behalf of the Company, or to exercise in its sole discretion any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted Except as expressly provided to the Company under contrary in this Agreement, or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests of any Subsidiary thereof.
(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law.
(c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have co-existent authority with the general power to manage Members over the daily routine and ordinary management and control of the LLC Business. Except as expressly provided in this Agreement or cause as expressly directed by a vote of the holders of a majority of the Ownership Interests, the Managing Member shall have no additional authority regarding management of the Company (which may be delegated to officers LLC. All of the Company) authority to manage the LLC and make all decisions and bind and obligate the LLC shall remain with the Members. The Members shall retain all rights to manage the LLC, which shall include, but not be limited to, directly or indirectly, undertake any of the following:
(ia) take all action necessary or desirable to develop acquire the Property and prepare a business plan each year which will own, manage and operate the Business of the LLC as set forth the operating goals and plans for the Companyherein;
(iib) sell or mortgage or otherwise dispose of or encumber or take any action with regard to execute the LLC property;
(c) acquire such insurance as the Members deem reasonable and deliver advisable;
(d) pay, collect, compromise, arbitrate or otherwise adjust any and all Claims or demands of or against the LLC;
(e) act for the LLC in all transactions concerning the LLC Business and/or the LLC Property or underlying property, including execution on behalf of the LLC of all documents in connection therewith;
(f) employ at the LLC’s expense such persons, firms, companies, agents, employees, attorneys, accountants, financial advisors, business consultants, and such other professional personnel, including Affiliates of the Members;
(g) establish bank accounts for the LLC funds, authorize designees to authorize disburse such funds on behalf of the LLC, and for such purpose;
(h) negotiate with and compensate, as required, any governmental authorities regarding assessment, taxes and related matters;
(i) invest LLC funds in any form of bank accounts, government obligations, stocks, bonds or any other investment;
(j) admit Members to the. LLC as provided herein;
(k) distribute to Members their share of Distributable Net Proceeds;
(1) perform all other acts reasonable and necessary in connection with the LLC business. The execution and delivery of contractsany instrument described above that is signed by any Member shall be sufficient to bind the LLC. Notwithstanding the above, deeds, leases, licenses, instruments of transfer and other documents on behalf Members holding a majority of the Company;
(iii) to make Ownership Interests shall approve any expenditures, to lend action regarding the Property or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations;
(iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions;
(v) to engage attorneys, consultants and accountants for the Company;
(vi) to develop or cause to be developed accounting procedures for the maintenance Business of the Company’s books LLC which falls outside of account; and
(vii) to do all such other acts as shall be authorized in this Agreementthe routine day-to-day management of the LLC.
Appears in 1 contract
