OPERATING AGREEMENT of energiUS Management LLC
Exhibit 3.3
of
(a Nevada limited liability company)
THIS OPERATING AGREEMENT (this “Agreement”), to be effective as of July 25, 2008 (the “Effective Date”), is by and among energiUS Management LLC, a Nevada limited liability company (the “Company”), and energiUS LLC, a Nevada limited liability company (the “initial Member(s)”), and Xxxx X. Xxxxxxxxx (the initial “Manager(s)”).
The Company is a limited liability company formed on or about the Effective Date pursuant to Chapter 86 of Title 7 of Nevada Revised Statutes, as amended (the “Act”). The other parties to this Agreement are the Company’s Members and Managers.
The parties intend by this Agreement to define their rights and obligations with respect to the Company’s governance and financial affairs and to adopt regulations and procedures for the conduct of the Company’s activities. Accordingly, with the intention of being legally bound, they agree as follows:
1.1
Scope. For purposes of this Agreement, unless the language or context clearly indicates that a different meaning is intended, capitalized terms have the meanings specified in this Article.
1.2
(a)
“Act” means Chapter 86 of Title 7 of Nevada Revised Statutes, as amended.
(b)
“Affiliate,” with respect to a Person, means (1) a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the Person, (2) a Person who owns or controls at least ten percent of the outstanding voting interests of the Person, (3) a Person who is an officer, director, manager or general partner of the Person, or (4) a Person who is an officer, director, manager, general partner, trustee or owns at least ten percent of the outstanding voting interests of a Person described in clauses (1) through (3) of this sentence.
(c)
“Agreement” means this agreement, including any amendments.
(d)
“Articles” means the Articles of Organization filed with the Secretary of State of Nevada to organize the Company as a limited liability company, including any amendments.
(e)
“Available Funds” means the Company’s gross cash receipts from operations, less the sum of: (1) payments of principal, interest, charges and fees pertaining to the Company’s indebtedness; (2) expenditures incurred incident to the usual conduct of the Company’s business; and (3) amounts reserved to meet the reasonable needs of the Company’s business.
(f)
“Bankruptcy” means the filing of a petition seeking liquidation, reorganization, arrangement, readjustment, protection, relief or composition in any state or federal bankruptcy, insolvency, reorganization or receivership proceeding.
(g)
“Capital Account” of a Member means the capital account maintained for the Member in accordance with Article 4.5.
(h)
“Capital Investment” of a Member means an amount equal to the excess of the cumulative value of the Member’s Contributions of cash and property over the cumulative value of the Member’s Distributions of cash and property. For purposes of this definition, (1) Distributions out of Available Funds are not taken into account and (2) the value of any Contribution or Distribution of property in kind is as recorded on the Company’s books at the time of the Contribution or Distribution.
(i)
“Code” means the Internal Revenue Code of 1986, as amended.
(j)
“Company” means energiUS Management LLC and any successor limited liability company or entity.
(k)
“Competing Activity” means an activity that competes with or is benefited by the Company’s present or prospective activities. A passive investment in an Entity engaged in a Competing Activity is itself a Competing Activity only if the investor and the Entity are Affiliates.
(l)
“Contribution” means anything of value that a Member contributes to the Company as a prerequisite for or in connection with membership, including any combination of cash, property, services rendered, a promissory note or any other obligation to contribute cash or property or render services.
(m)
“Dissociation” means a complete termination of a Member’s membership in the Company in consequence of an event described in Article 3.9.
(n)
“Distribution” means the Company’s direct or indirect transfer of money or other property with respect to a Membership Interest.
(o)
“Effective Date,” with respect to this Agreement, means July 25, 2008, or the date on which the Company’s existence as a limited liability company begins, as prescribed by the Act, whichever occurs first.
(p)
“Entity” means an association, relationship or artificial person through or by means of which an enterprise or activity may be lawfully conducted, including, without limitation, a partnership, trust, limited liability company, corporation, joint venture, cooperative or association.
(q)
“Manager” means a Person, whether or not a Member, who is vested with authority to manage the Company in accordance with Article 5.
(r)
“Member” means an initial Member and any Person who subsequently is admitted as an additional or substitute Member after the Effective Date, in accordance with Article 3.1.
(s)
“Membership Interest” means a Member’s percentage interest in the Company, consisting of the Member’s right to share in Profits, receive Distributions, participate in the Company’s governance, approve the Company’s acts, participate in the designation and removal of a Manager and receive information pertaining to the Company’s affairs. The Membership Interests of the initial Members are set forth in Article 3.1(a) of this Agreement. Changes in Membership Interests after the Effective Date, including those necessitated by the admission and Dissociation of Members, will be reflected in the Company’s records. The allocation of Membership Interests reflected in the Company’s records from time to time is presumed to be correct for all purposes of this Agreement and the Act.
(t)
“Minimum Gain” means minimum gain as defined in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
(u)
“Person” means a natural person or an Entity.
(v)
“Preferred Return”, if authorized by the Members, means, notwithstanding Section 4.1(d) of this Agreement, an amount equal to a specified percentage to be paid by the Company on a Capital Contribution to the Company to be used as working capital.
(w)
“Profit” as to a positive amount, and “Loss” as to a negative amount, mean, for a Taxable Year, the Company’s income or loss for the Taxable Year, as determined in accordance with accounting principles appropriate to the Company’s method of accounting and consistently applied.
(x)
“Regulations” means proposed, temporary or final regulations promulgated under the Code by the Department of the Treasury, as amended.
(y)
“Taxable Year” means the Company’s taxable year as determined in accordance with Article 6.2.
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(z)
“Transfer,” as a noun, means a transaction or event by which ownership of a Membership Interest is changed or encumbered, including, without limitation, a sale, exchange, abandonment, gift, pledge or foreclosure. “Transfer,” as a verb, means to effect a Transfer.
(aa)
“Transferee” means a Person who acquires a Membership Interest by Transfer from a Member or another Transferee and is not admitted as a Member in accordance with Article 3.1.
(bb)
“Unit” means a corresponding percentage of Membership Interest in the Company. The Company is authorized to issue an unlimited number of Units. The Company may also issue Units with limited rights (e.g., non-voting, etc.) and/or preferred rights (e.g., Preferred Return, etc.) from time to time provided majority consent of the Company’s voting Members is obtained. At all times the aggregate Units issued and outstanding shall represent 100% of the Company’s Membership Interest.
2.1
Status. The Company is a Nevada limited liability company organized under the Act.
2.2
Name. The Company’s name is energiUS Management LLC
2.3
Term. The Company’s existence as a limited liability company will commence on the Effective Date and continue in perpetuity unless sooner terminated under the Act or this Agreement.
2.4
Purpose. The Company’s purpose is to engage in business for any lawful purpose.
2.5
Principal Place of Business; Designated Office. The Company may establish principal places of business, both within or without the State of Nevada, as deemed prudent by the Managers.
2.6
Registered Agent; Registered Office. The Company’s registered office in Nevada is located at 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, and its registered agent at that location is Nevada Corporate Headquarters, Inc. The Company may change its registered agent or registered office at any time in accordance with the Act.
3.1
(a)
Initial Members. The names, addresses and initial Membership Interests of the initial Members are as follows:
energiUS LLC
1,000 Units (100%)
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
(b)
(c)
(d)
(e)
Classes. The Company is authorized to issue Units with limited rights (e.g., non-voting, etc.) and/or preferred rights (e.g., Preferred Return, etc.) from time to time provided majority consent of the Company’s voting Members is obtained.
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3.2
Changes and Verification of Membership Interests.
(a)
(b)
3.3
(a)
(1)
(2)
Proxy Voting. A Member may act at a meeting of Members through a Person authorized by signed proxy.
(3)
(4)
(b)
3.4
Limitation on Individual Authority. A Member who is not also a Manager has no authority to bind the Company. A Member whose unauthorized act obligates the Company to a third party will indemnify the Company for any costs or damages the Company incurs as a result of the unauthorized act.
3.5
Negation of Fiduciary Duties. A Member who is not also a Manager owes no fiduciary duties to the Company or to the other Members solely by reason of being a Member. However, a Member may not participate, directly or indirectly, in a Competing Activity unless they first disclose the nature of the opportunity to the other Members in a duly called meeting of Members. Upon disclosure of the opportunity, the Company shall have a 48-hour right of first refusal to evaluate the opportunity whereupon it must either accept or decline the opportunity. Upon acceptance of the opportunity the Company shall pay the Member reasonable consideration for an option to pursue the opportunity, for the Company’s own account. If a Member participates in a Competing Activity without complying with this Section 3.5, it must account to the Company for any income the Member derives from such participation.
3.6
Resignation of a Member. A Member at any time may resign from the Company by giving written notice to the Company and the other Members at least 60 days prior to the effective date of the resignation.
3.7
Expulsion of a Member. At any time there are more than two Members, the Company may expel a Member, but only for cause and with the approval of a majority in interest of the other Members. Cause for expulsion exists if the Member has materially breached or is unable to perform the Member’s material obligations under this Agreement. A Member’s expulsion from the Company will be effective upon the Member’s receipt of written notice of the expulsion.
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3.8
Transfer of Membership Interest.
(a)
Restrictions on Transfer. A Member may Transfer a Membership Interest only in compliance with this Article 3.8. An attempted Transfer of all or a portion of a Membership Interest that is not in compliance with this Article 3.8 is null and void.
(b)
(1)
the Transfer, alone or in combination with other Transfers, will not result in the Company’s termination for federal income tax purposes;
(2)
the Transfer is the subject of an effective registration under, or exempt from the registration requirements of, applicable state and federal securities laws; and
(3)
the Company receives from the Transferee the information and agreements reasonably required to permit it to file federal and state income tax returns and reports.
(c)
(1)
If at any time a Member proposes to sell a Membership Interest pursuant to a bona fide written offer from a third-party purchaser, the Member (the “seller”) will make a written offer to sell the Membership Interest to the remaining Members for the same price and on the same terms as those contained in the offer from the third party.
(2)
The remaining Members must accept the seller’s offer by written notice delivered to the seller within 30 days after the offer is received.
(3)
The remaining Members may divide the Membership Interest in any manner to which they all agree. In the absence of agreement, they will divide the Membership Interest in proportion to their Membership Interests, as of the time the offer is received.
(4)
If the remaining Members do not accept the seller’s offer, the seller may sell the Membership Interest to the third-party purchaser on the terms specified in the original offer, provided the Company is reasonably satisfied that all of the other conditions prescribed by this Article 3.8 are met. However, if the remaining Members do not accept the seller’s offer and the seller does not complete the sale to the third-party purchaser within 30 days after the remaining Members’ right to accept the offer terminated, the seller must make a new offer to the remaining Members and the provisions of this Article 3.8 again will apply.
(d)
(e)
Transferee’s Status.
(1)
Admission as a Member. A Member who Transfers a Membership Interest has no power to confer on the Transferee the status of a Member. A Transferee may be admitted as a Member only in accordance with the provisions of Article 3.1. A Transferee who is not admitted as a Member has only the rights described in this Article 3.8.
(2)
Rights of Non-Member Transferee. A Transferee who is not admitted as a Member in accordance with the provisions of Article 3.1, (i) has no right to vote or otherwise participate in the Company’s governance, (ii) is not entitled to receive information concerning the Company’s affairs or inspect the Company’s books and records, (iii) with respect to the transferred Membership Interest, is entitled to receive the Distributions to which the Member would have been entitled had the Transfer not occurred, but only at such times and in such amounts as the Company in its sole discretion may determine, and (iv) is subject to the restrictions imposed by this Article 3.8 to the same extent as a Member.
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3.9
(a)
(b)
3.10
Redemption of Dissociating Member’s Interest.
(a)
(1)
If a Member’s Dissociation is a result of Bankruptcy, death, dissolution, expulsion, resignation, or Transfer of Membership Interest, at any time within 180 days after the effective date of the Dissociation, the Company may redeem not less than all of the Member’s Membership Interest on the terms set forth in this Article 3.10.
(2)
The Company must exercise its right to redeem the Membership Interest by giving written notice to the Member or the Member’s successor in interest (the “seller”) within the 180-day exercise period. The notice must specify the redemption price and payment terms and indicate a closing date within 60 days after the date the notice is delivered.
(b)
(1)
The redemption price of the Membership Interest will be an amount equal to the greater of (i) the seller’s Capital Account as of the effective date of the Dissociation, adjusted to account for the seller’s share of any Profit or Loss the Company would have realized had it sold all of its assets for their fair market value on the effective date of the Dissociation or (ii) the amount that is equal to five times the Company’s average operating earnings for the previous five completed Taxable Years, multiplied by the seller’s Membership Interest.
(2)
The determination of the redemption price will be made by an independent qualified appraiser selected by the Company. The Company will pay all costs associated with the determination of the redemption price.
(c)
4.1
(a)
Initial Members. The initial Members will contribute, in proportion to their initial Membership Interests, sufficient time, capital and resources to start the Company toward achieving its purpose hereunder.
(b)
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(c)
(d)
Contributions Not Interest Bearing. Unless otherwise provided for (e.g., Preferred Return), a Member is not entitled to interest or other compensation with respect to any cash or property the Member contributes to the Company.
(e)
No Return of Contribution. Unless otherwise provided for (e.g., Preferred), a Member is not entitled to the return of any Contribution prior to the Company’s dissolution and winding up.
4.2
Allocation of Profit and Loss.
(a)
Profits. After giving effect to the special allocations required by Article 4.2(c) (the “special allocations”), the Company’s Profit for a Taxable Year, including the Taxable Year in which the Company is dissolved, will be allocated among the Members in proportion to the Members’ Membership Interests.
(b)
(c)
(1)
If a Member unexpectedly receives an adjustment, allocation, or distribution described in Sections 1.704-l(b)(2)(ii)(d)(4), (5) or (6) of the Regulations that creates or increases a deficit in the Member’s Capital Account as of the end of a Taxable Year, a pro rata portion of each item of the Company’s income, including gross income and gain for the Taxable Year and, if necessary, for subsequent years will be allocated to the Member in an amount and manner sufficient to eliminate the deficit in the Member’s Capital Account as quickly as possible.
(2)
If a Member would have a deficit in his or her Capital Account at the end of a Taxable Year that exceeds the sum of (i) the amount the Member is required to pay the Company pursuant to an obligation described in Section 1.704-l(b)(2)(ii)(c) of the Regulations and (ii) the Member’s share of Minimum Gain, a pro rata portion of each item of the Company’s income, including gross income and gain, for the Taxable Year will be allocated to the Member in an amount and manner sufficient to eliminate the deficit in the Member’s Capital Account as quickly as possible.
(3)
If there is a net decrease in the Company’s Minimum Gain during a Taxable Year, the items of the Company’s income, including gross income and gain, for the Taxable Year and, if necessary, for subsequent Taxable Years will be allocated to the Members in proportion to their shares of the net decrease in Minimum Gain. If the allocation made by this paragraph would cause a distortion in the economic arrangement among the Members and it is expected that the Company will not have sufficient income to correct that distortion, the Company may seek to have the Internal Revenue Service waive the requirement for the allocation in accordance with Section 1.704-2(f)(4) of the Regulations.
(4)
Items of the Company’s loss, deductions and expenditures described in Code Section 705(a)(2)(B) that are attributable to the Company’s non-recourse debt and are characterized as Member non-recourse deductions under Section 1.704-2(i) of the Regulations will be allocated to the Members’ Capital Accounts in accordance with Section 1.704-2(i) of the Regulations.
(5)
Items of income, gain, loss and deduction with respect to property contributed to the Company’s capital will be allocated between the Members so as to take into account any variation between book value and basis, to the extent and in the manner prescribed by section 704(c) of the Code and related Regulations.
(6)
If the special allocations result in Capital Account balances that are different from the Capital Account balances the Members would have had if the special allocations were not required, the Company will allocate other items of income, gain, loss and deduction in any manner it considers appropriate to offset the effects of the special allocations on the Members’ Capital Account balances. Any offsetting allocation required by this paragraph is subject to and must be consistent with the special allocations.
(d)
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4.3
Tax Allocations. For federal income tax purposes, unless the Code otherwise requires, each item of the Company’s income, gain, loss or deduction will be allocated to the Members in proportion to their allocations of the Company’s Profit or Loss.
4.4
(a)
(b)
4.5
(a)
(1)
increased by: (i) the amount of any money the Member contributes to the Company’s capital; (ii) the fair market value of any property the Member contributes to the Company’s capital, net of any liabilities the Company assumes or to which the property is subject; and (iii) the Member’s share of Profits and any separately stated items of income or gain; and
(2)
decreased by: (i) the amount of any money the Company distributes to the Member; (ii) the fair market value of any property the Company distributes to the Member, net of any liabilities the Member assumes or to which the property is subject; and (iii) the Member’s share of Losses and any separately stated items of deduction or loss.
(b)
(c)
(d)
(e)
Compliance with Code. The requirements of this Article 4.5 are intended and will be construed to ensure that the allocations of the Company’s income, gain, losses, deductions and credits have substantial economic effect under the Regulations promulgated under Section 704(b) of the Code.
5.1
Management by Members. Management of the Company shall be conducted by Managers. Members shall appoint Managers (who may also be Members) from time to time as necessary to carry on the Company’s business.
5.2
Time Devoted to Business. A Manager will devote sufficient time and attention to the Company’s activities as may be reasonably necessary to fulfill the Company’s business adjectives.
5.3
(a)
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(b)
(1)
The Managers are authorized on the Company’s behalf to make all decisions as to (i) the development, sale, lease or other disposition of the Company’s assets; (ii) the purchase or other acquisition of other assets of all kinds; (iii) the management of all or any part of the Company’s assets and business; (iv) the borrowing of money and the granting of security interests in the Company’s assets (including loans from Members); (v) the prepayment, refinancing or extension of any mortgage affecting the Company’s assets; (vi) the compromise or release of any of the Company’s claims or debts; (vii) the employment of Persons for the operation and management of the Company’s business; and (viii) all elections available to the Company under any federal or state tax law or regulation.
(2)
Each Manager on the Company’s behalf may execute and deliver (i) all contracts, conveyances, assignments, leases, subleases, franchise agreements, licensing agreements, management contracts and maintenance contracts covering or affecting the Company’s assets; (ii) all checks, drafts and other orders for the payment of the Company’s funds; (iii) all promissory notes, mortgages, deeds of trust, security agreements and other similar documents; (iv) all articles, certificates and reports pertaining to the Company’s organization, qualification and dissolution; (v) all tax returns and reports; and (vi) all other instruments of any kind or character relating to the Company’s affairs.
5.4
(a)
(b)
(c)
(d)
5.5
Required Member Approval. Notwithstanding any other provision of this Agreement, without the approval of Members whose aggregate Membership Interest exceeds 50 percent, the Managers may take no action with respect to: (a) the sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the Company’s assets; (b) the Company’s merger with or conversion into another Entity; (c) an undertaking involving a debt or obligation in excess of $100,000.00; (d) the compromise of a dispute involving an amount in controversy in excess of $100,000.00; (e) a transaction involving a conflict of interest between a Manager and the Company, including the establishment of the Manager’s compensation; (f) acceptance of an additional Contribution voluntarily tendered by any Member; (g) redemption of a Membership Interest; (h) extraordinary Distributions; and (i) the indemnification of a Manager.
5.6
Agency Power and Authority. A Manager apparently acting for the Company in the usual course of its business has the power to bind the Company and no person has an obligation to inquire into the Manager’s actual authority to act on the Company’s behalf. However, if a Manager acts outside the scope of the Manager’s actual authority or in contravention of a decision of the Managers, the Manager will indemnify the Company for any costs or damages it incurs as a result of the unauthorized act.
5.7
(a)
(1)
Exculpation. A Manager will not be liable to the Company or any Member for an act or omission done in good faith to promote the Company’s best interests, unless the act or omission constitutes gross negligence, intentional misconduct or a knowing violation of law.
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(2)
Justifiable Reliance. A Manager may rely on the Company’s records maintained in good faith and on information, opinions, reports or statements received from any Person pertaining to matters the Manager reasonably believes to be within the Person’s expertise or competence.
(b)
(1)
(2)
Company Opportunities. A Manager, regardless of whether they are also a Member, must follow the disclosure procedure outlined for Members in Section 3.5 of this Agreement, in the disclosure of business opportunities that the Manager believes or has reason to believe the Company would consider accepting if brought to its attention. If the Company declines to accept the opportunity, the Manager may pursue it for the Manager’s own account. If the Manager fails to disclose the opportunity, the Manager will account to the Company for any income the Manager derives from the opportunity and will indemnify the Company for any loss the Company incurs as a result of the failure to disclose.
(c)
5.8
Indemnification of Managers. The Company may but is not required to indemnify each Manager for all expenses, losses, liabilities and damages the Manager actually and reasonably incurs in connection with the defense or settlement of any action arising out of or relating to the conduct of the Company’s activities, except an action with respect to which the Manager is adjudged to be liable for breach of a fiduciary duty owed to the Company or the Members under the Act or this Agreement.
5.9
Compensation. The Company will compensate a Manager for services rendered to or on behalf of the Company. The amount of the compensation will be commensurate to the value of the services and may be determined with or without regard to Profit or other indicators of the results of operations. Compensation paid to a Manager will be treated as an expense for purposes of determining Profit. The Company will also reimburse each Manager for reasonable expenses properly incurred on the Company’s behalf.
5.10
(a)
(b)
(c)
(d)
Vacancy. If a Manager for any reason ceases to act, the Members will promptly elect a successor, to serve until a successor is elected and qualified.
ARTICLE 6: RECORDS AND ACCOUNTING
6.1
(a)
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(b)
Member Access. A Member and the Member’s authorized representative will have reasonable access to and may inspect and copy all books, records and other materials pertaining to the Company or its activities. The exercise of such rights will be at the requesting Member’s expense.
(c)
6.2
(a)
(b)
Taxable Year. The Company’s Taxable Year is the Company’s annual accounting period, as determined by the Managers in compliance with Sections 441, 444 and 706 of the Code.
6.3
(a)
Members. As soon as practicable after the close of each Taxable Year, the Company will prepare and send to the Members such reports and information as are reasonably necessary to (1) inform the Members of the results of the Company’s operations for the Taxable Year and (2) enable the Members to completely and accurately reflect their distributive shares of the Company’s income, gains, deductions, losses and credits in their federal, state and local income tax returns for the appropriate year.
(b)
6.4
(a)
(1)
the amount withheld will be considered a Distribution to the Member; and
(2)
if the withholding requirement pertains to a Distribution in kind or an allocation of Profit, the Company will pay the amount required to be withheld to the governmental agency and promptly take such action as it considers necessary or appropriate to recover a like amount from the Member, including offset against any Distributions to which the Member would otherwise be entitled.
(b)
7.1
(a)
Enumeration. The Company will dissolve upon the first to occur of:
(1)
the vote of the Members to dissolve the Company;
(2)
any event that makes the Company ineligible to conduct its activities as a limited liability company under the Act; or
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(3)
any event or circumstance that makes it unlawful or impossible for the Company to carry on its business.
(b)
7.2
(a)
Appointment of Liquidator. Upon the Company’s dissolution, the Managers will appoint a liquidator, who may but need not be a Member. The liquidator will wind up and liquidate the Company in an orderly, prudent and expeditious manner in accordance with the following provisions of this Article 7.2.
(b)
(c)
(d)
(e)
8.1
(a)
(b)
8.2
Power of Attorney. Each Member appoints each Manager, with full power of substitution, as the Member’s attorney-in-fact, to act in the Member’s name to execute and file (a) all certificates, applications, reports and other instruments necessary to qualify or maintain the Company as a limited liability company in the states and foreign countries where the Company conducts its activities, (b) all instruments that effect or confirm changes or modifications of the Company or its status, including, without limitation, amendments to the Articles, and (c) all instruments of transfer necessary to effect the Company’s dissolution and termination. The power of attorney granted by this Article 8.2 is irrevocable, coupled with an interest and will survive the death of the Member.
8.3
Nominee. Title to the Company’s assets may be held in the name of the Company or any nominee (including any Manager or any Member so acting), as the Company determines. The Company’s agreement with any nominee may contain provisions indemnifying the nominee for costs or damages incurred as a result of the nominee’s service to the Company.
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8.4
Investment Representation. Each Member represents to the Company and the other Members that (a) the Member is acquiring a Membership Interest in the Company for investment and for the Member’s own account and not with a view to its sale or distribution and (b) neither the Company nor any other Member has made any guaranty or representation upon which the Member has relied concerning the possibility or probability of profit or loss resulting from the Member’s investment in the Company.
8.5
Resolution of Disputes – Mediation. The parties will endeavor in good faith to resolve all disputes arising under or related to this Agreement by mediation according to the then prevailing rules and procedures of the American Arbitration Association prior to seeking redress in a court of competent jurisdiction.
8.6
Notices. Notices contemplated by this Agreement may be sent by any commercially reasonable means, including hand delivery, first class mail, fax, E-mail or private courier. The notice must be prepaid and addressed as set forth in the Company’s records. The notice will be effective on the date of receipt or, in the case of notice sent by first class mail, the fifth day after mailing.
8.7
Resolution of Inconsistencies. If there are inconsistencies between this Agreement and the Articles, the Articles will control. If there are inconsistencies between this Agreement and the Act, this Agreement will control, except to the extent the inconsistencies relate to provisions of the Act that the Members cannot alter by agreement. Without limiting the generality of the foregoing, unless the language or context clearly indicates a different intent, the provisions of this Agreement pertaining to the Company’s governance and financial affairs and the rights of the Members upon Dissociation and dissolution will supersede the provisions of the Act relating to the same matters.
8.8
Provisions Applicable to Transferees. As the context requires and subject to the restrictions and limitations imposed by Articles 3.8 and 3.9, the provisions of this Agreement pertaining to the rights and obligations of a Member also govern the rights and obligations of the Member’s Transferee.
8.9
Additional Instruments. Each Member will execute and deliver any document or statement necessary to give effect to the terms of this Agreement or to comply with any law, rule or regulation governing the Company’s formation and activities.
8.10
Computation of Time. In computing any period of time under this Agreement, the day of the act or event from which the specified period begins to run is not be included. The last day of the period is included, unless it is a Saturday, Sunday or legal holiday, in which case the period will run until the end of the next day that is not a Saturday, Sunday or legal holiday.
8.11
Entire Agreement. This Agreement and the Articles comprise the entire agreement among the parties with respect to the Company. This Agreement and the Articles supersede any prior agreements or understandings with respect to the Company. No representation, statement or condition not contained in this Agreement or the Articles has any force or effect.
8.12
Waiver. No right under this Agreement may be waived, except by an instrument in writing signed by the party sought to be charged with the waiver.
8.13
General Construction Principles. Words in any gender are deemed to include the other genders. The singular is deemed to include the plural and vice versa. The headings and underlined paragraph titles are for guidance only and have no significance in the interpretation of this Agreement.
8.14
Binding Effect. Subject to the provisions of this Agreement relating to the transferability of Membership Interests and the rights of Transferees, this Agreement is binding on and will inure to the benefit of the Company, the Members and their respective distributees, successors and assigns.
8.15
Governing Law. Nevada law governs the construction and application of the terms of this Agreement.
8.16
Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original.
* * * * *
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Signed on the respective dates set forth below, to be effective as of the Effective Date.
COMPANY:
a Nevada limited liability company
By: /s/ Xxxx X. Xxxxxxxxx
Date: July 25, 2008
Xxxx X. Xxxxxxxxx
Manager
INITIAL MEMBERS:
energiUS LLC
a Nevada limited liability company
By: /s/ Xxxx X. Xxxxxxxxx
Date: July 25, 2008
Xxxx X. Xxxxxxxxx
Member
INITIAL MANAGERS:
/s/ Xxxx X. Xxxxxxxxx
Date: July 25, 2008
Xxxx X. Xxxxxxxxx, individually
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