Third Amended And Restated LIMITED LIABILITY COMPANY AGREEMENT OF ALTA MESA HOLDINGS GP, LLC (A Texas Limited Liability Company) August 31, 2016
Third Amended And Restated
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXX XXXX HOLDINGS GP, LLC
(A Texas Limited Liability Company)
August 31, 2016
THE MEMBERSHIP INTERESTS REFERENCED HEREIN HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. WITHOUT REGISTRATION, THESE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT ON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR THE SUBMISSION TO THE COMPANY OF OTHER EVIDENCE SATISFACTORY TO THE Company TO THE EFFECT THAT ANY TRANSFER WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF MEMBERSHIP INTERESTS IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN this Agreement.
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TABLE OF CONTENTS |
Page |
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ARTICLE I. DEFINITIONS |
1 | |
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1.1 |
Definitions |
1 |
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1.2 |
Other Definitional Provisions |
7 |
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ARTICLE II. FORMATION |
7 | |
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2.1 |
Name and Formation |
7 |
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2.2 |
Principal Place of Business |
7 |
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2.3 |
Registered Office and Agent |
7 |
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2.4 |
Duration |
7 |
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2.5 |
Purposes and Powers |
7 |
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ARTICLE III. MEMBER MATTERS; CAPITALIZATION; Transfer Restrictions |
7 | |
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3.1 |
Members and Rights of Membership Interests |
7 |
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3.2 |
Liability of the Members |
8 |
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3.3 |
Annual and Special Meetings |
8 |
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3.4 |
Actions Without a Meeting |
8 |
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3.5 |
Limitations on Transfers |
8 |
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3.6 |
Liquidity Event |
8 |
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3.7 |
Indirect Transfer |
9 |
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3.8 |
Death of Certain Individuals |
9 |
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3.9 |
Certificates |
10 |
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ARTICLE IV. DISTRIBUTIONS |
12 | |
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4.1 |
Distributions |
12 |
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4.2 |
Limitations Upon Distributions |
12 |
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ARTICLE V. CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS |
12 | |
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5.1 |
Class A Member Contribution |
12 |
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5.2 |
Subsequent Capital Contributions |
12 |
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ARTICLE VI. MANAGEMENT BY BOARD |
13 | |
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6.1 |
General |
13 |
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6.2 |
Composition |
13 |
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6.3 |
Class B Appointees |
13 |
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6.4 |
Mandatory Unanimous Consent Matters |
14 |
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6.5 |
Valid Board |
14 |
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6.6 |
Officers |
14 |
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6.7 |
Waiver of Fiduciary Duties |
16 |
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ARTICLE VII. BOOKS, ACCOUNTS AND INFORMATION |
16 | |
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7.1 |
Records and Reports |
16 |
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7.2 |
Returns and Other Elections |
16 |
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ARTICLE VIII. DISSOLUTION AND TERMINATION |
16 | |
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8.1 |
Dissolution |
16 |
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8.2 |
Distribution of Assets Upon Dissolution |
16 |
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8.3 |
Articles of Dissolution |
17 |
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ARTICLE IX. MISCELLANEOUS PROVISIONS |
17 | |
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9.1 |
Amendments |
17 |
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9.2 |
Confidentiality |
17 |
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9.3 |
Incorporated Documents |
17 |
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TABLE OF CONTENTS (continued) |
Page |
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9.4 |
Notices |
18 |
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9.5 |
Entire Agreement |
18 |
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9.6 |
Further Assurances |
18 |
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9.7 |
Tax Matters |
18 |
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9.8 |
Governing Law; Severability; Jurisdiction |
19 |
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9.9 |
Binding Effect |
20 |
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9.10 |
Severability |
21 |
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9.11 |
Time of the Essence |
21 |
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9.12 |
No Third Party Beneficiaries |
21 |
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9.13 |
Counterparts |
21 |
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Third Amended And Restated
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXX XXXX HOLDINGS GP, LLC
(A Texas Limited Liability Company)
This Third Amended And Restated Limited Liability Company Agreement (this “Agreement”) of Xxxx Xxxx Holdings GP, LLC, a Texas limited liability company (the “Company”), is entered into by and between XXXX XXXX RESOURCES, LP, a Texas limited partnership (the “Class A Member”), and High Mesa Inc. (f/k/a XXXX XXXX INVESTMENT HOLDINGS INC.), a Delaware corporation (the “Class B Member” and together with the Class A Member, the “Members”), as of August 31, 2016 (the “Effective Date”).
RECITALS
WHEREAS, the Company was formed as a manager-managed limited liability company under the laws of the State of Texas by filing articles of organization (as amended from time to time, the “Articles of Organization”) with the Texas Secretary of State on September 26, 2005; and
WHEREAS, prior to the Effective Date, the Company has been governed by the Second Amended and Restated Limited Liability Company Agreement of the Company dated August 12, 2015, as amended (the “Predecessor Agreement”); and
WHEREAS, the Members now desire to amend and restate the Predecessor Agreement pursuant to Section 9.1 of thereof on the term set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Predecessor Agreement is hereby amended and restated to read as follows:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with that Person. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
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“AMIH Unanimous Consent” means, as of any determination date, if no Conversion Event has occurred, ‘Unanimous Consent’ as such term is defined in the Certificates of Designations and in respect of the matters set forth in Section 6(c) of each thereof, or, if a Conversion Event has occurred, ‘Unanimous Consent’ as such term is defined in the Stockholders Agreement and in respect of the matters set forth in Section 10 thereof.
“Agreement” has the meaning ascribed to it in the Preamble.
“Applicable Laws” means any applicable law, statute, ordinance, rule, regulation, decision, order or determination of any governmental authority.
“Articles of Organization” has the meaning ascribed to it in the Recitals.
“Bayou City Holder” has the meaning ascribed to such term in the Stockholders Agreement.
“Breaching Class A Member” has the meaning ascribed to it in Section 3.7.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York or Texas are authorized or required by law or executive order to close.
“Board” has the meaning ascribed to it in Section 6.1.
“Capital Contributions” means any contribution to the capital of the Company in cash or property by the Members whenever made.
“Certificates of Designations” means, collectively, the Series B Certificate of Designations, the Series C Certificate of Designations and the Series D Certificate of Designations.
“Class A Member” has the meaning ascribed to it in the Preamble.
“Class A Appointees” has the meaning ascribed to it in Section 6.2.
“Class A Units” has the meaning ascribed to it in Section 3.1(a).
“Class B Member” has the meaning ascribed to it in the Preamble.
“Class B Units” has the meaning ascribed to it in Section 3.1(a).
“Class B Appointee” has the meaning ascribed to it in Section 6.2.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning ascribed to it in the Preamble.
“Company Tax Matters Member” has the meaning ascribed to it in Section 9.7(a).
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“Conversion Event” shall mean the conversion of all of the outstanding shares of preferred stock of the Class B Member held by each Highbridge Holder or Bayou City Holder into shares of common stock of the Class B Member.
“Deceased Executive” has the meaning ascribed to it in Section 3.8(a).
“Effective Date” has the meaning ascribed to it in the Preamble.
“Equity Securities” shall mean (i) any shares of capital stock or membership interests, (ii) any rights, options, warrants or similar securities to subscribe for, purchase or otherwise acquire any shares of capital stock or membership interests, and (iii) debt or other evidences of indebtedness, capital stock or other securities directly or indirectly convertible into or exercisable or exchangeable for any shares of capital stock or membership interests. For purposes of this Agreement, when either the term “Equity Securities” or the term “capital stock” is used with respect to any Person that is not a corporation, including PubCo, such term shall have the meaning that, with respect to such Person, including PubCo (which may or may not be a corporation), achieves an identical effect to the meaning of such term when it is used with respect to the Class B Member, a corporation.
“Highbridge Holder” has the meaning ascribed to such term in the Stockholders Agreement.
“Immediate Family” means, with respect to any individual, (i) that individual’s spouse, parents and lineal descendants (including by adoption) and any trust the sole beneficiaries of which are that individual or any of that individual’s spouse, parents or lineal descendants (including by adoption), and (ii) that individual’s former spouse.
“Indirect Permitted Transferee” means, subject to Section 3.8, with respect to any Class A Member or any owner of a Class A Member, (a) Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, (b) a member of the Immediate Family of an individual that directly or indirectly owns Equity Securities in such Class A Member; provided, that, either Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, as applicable, for so long as such individual is living, must retain, directly or indirectly, voting control of the Units held by such Class A Member pursuant to a voting agreement that is delivered to the Company, the Highbridge Holders and the Bayou City Holders within five (5) Business Days after the applicable Transfer, and (c) any owner or Affiliate of such Class A Member; provided, that, either Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, as applicable, for so long as such individual is living, must retain, directly or indirectly, voting control of the Units held by such Class A Member pursuant to a voting agreement that is delivered to the Company, the Highbridge Holders and the Bayou City Holders within five (5) Business Days after the applicable Transfer.
“Indirect Transfer” means, with respect to any Class A Member, any single or series of related transactions that result in a Person (or Persons acting in concert), other than an Indirect Permitted Transferee of the Class A Member in question, who did not directly or indirectly own Equity Securities in such Class A Member prior to the consummation of such single or series of related transactions acquiring or owning, directly or indirectly, any Equity Securities in such Class A Member.
“IPO” has the meaning set forth in the definition of “Liquidity Event.”
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“Liquidity Event” means the first to occur, in one or a series of related transactions, of (i) a disposition of all or substantially all of the assets of the Class B Member and its Subsidiaries to a Person that is not an Affiliate of the Class B Member, whether by virtue of an asset sale or a transfer of Equity Securities (whether through a sale, merger consolidation, share exchange or otherwise), except to the extent described in clause (ii) of this definition, (ii) a disposition of all of the Equity Securities of the Class B Member, held directly or indirectly, by the holders thereof (through a sale, merger, consolidation, share exchange or otherwise), (iii) the consummation of a firm underwritten initial public offering registered under the Securities Act of any class of Equity Securities of the Class B Member (or any successor thereto) or any of its Subsidiaries that hold all or substantially all of the Company’s assets on a consolidated basis (an “IPO”) that is not a Qualified IPO and, (iv) a Qualified IPO, and (a) in the case of (i), the distribution by the Class B Member to the holders of Equity Securities of the Class B Member of all or substantially all of the proceeds received by the Class B Member and its Subsidiaries pursuant to such transaction, and (b), in the case of (iii) or (iv), if the IPO or Qualified IPO is of a Subsidiary of the Class B Member or a holding company parent of the Class B Member (the “PubCo”), then either (x) the distribution by the Class B Member (or its holding company parent) to the holders of Equity Securities of the Class B Member the residual traded securities of PubCo or (y) if PubCo is not owned directly by the stockholders of the Class B Member, the distribution to the stockholders of the Class B Member of the maximum amount of cash proceeds, if any, of such IPO or Qualified IPO, as the case may be, that the managing underwriters advising PubCo, in their reasonable discretion, conclude in writing can be distributed to the stockholders of the Class B Member without adversely affecting the price per share of the Equity Securities being sold in connection with such IPO or Qualified IPO, as the case may be.
“Majority Board Consent” means, as of any determination date, the affirmative vote of the Managers then constituting more than fifty percent (50%) of the Board based on the number of Managers at a duly called and convened meeting of the Board or the affirmative written consent in lieu of a meeting executed by the Managers then constituting more than fifty percent (50%) of the Board based on the number of Managers.
“Managers” has the meaning ascribed to it in Section 6.2.
“Members” has the meaning ascribed to it in the Preamble.
“Original Membership Interests” has the meaning ascribed to it in Section 5.1.
“Partnership” means Xxxx Xxxx Holdings, LP, a Texas limited partnership.
“Partnership Agreement” means the Fourth Amended and Restated Limited Partnership Agreement of the Partnership by and among the Company, the Class B Member, and the limited partners named therein dated the Effective Date, as amended, restated or modified from time to time.
“Partnership Tax Matters Member” has the meaning ascribed to it in Section 9.7(b).
“Passing Holder” and “Passing Holders” has the meaning set forth in Section 3.8(b).
“Passing Interest” has the meaning set forth in Section 3.8(a).
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“Passing Interest Notice” has the meaning set forth in Section 3.8(b).
“Permitted Transfer” means (1) a Transfer pursuant to and in accordance with Section 3.6, (2) a direct Transfer pursuant to and in accordance with Section 3.8, (3) a Transfer to be made in connection with an IPO or Qualified IPO; or (4) a Transfer at any time of all or any portion of a Class A Member’s Units to: (a) if such Class A Member is an individual, any members of such Class A Member’s Immediate Family; provided, that, Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, as applicable, for so long as such individual is living, must retain, directly or indirectly, voting control of such Immediate Family Member’s Units pursuant to a voting agreement that is delivered to the Company, the Highbridge Holders and the Bayou City Holders within five (5) Business Days after such Transfer; (b) if such Class A Member is a trust, the beneficiary or beneficiaries thereof; (c) if such Class A Member is an individual, the guardian or legal representative of a Class A Member as to whose estate a guardian or legal representative is appointed and to the executor or administrator of the estate of a deceased Stockholder; (d) another Class A Member; (e) if such Class A Member is an entity, any owner or Affiliate of such Class A Member; provided, that, if such transferee is an owner or Affiliate of such Class A Member, Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, as applicable, for so long as such individual is living, must retain, directly or indirectly, voting control of such Class A Member’s Units pursuant to a voting agreement that is delivered to the Company, the Highbridge Holders and the Bayou City Holders within five (5) Business Days after such Transfer.
“Permitted Transferee” means any Person to whom a Class A Member Transfers its Units in a Permitted Transfer.
“Person” shall mean any individual, corporation, general partnership, limited partnership, limited liability partnership, joint venture, association, joint-stock company, trust, limited liability company, unincorporated organization, other entity or government or any agency or political subdivision thereof.
“PIK Dividends” means, collectively, the PIK Dividends (as defined in the Series B Certificate of Designations) and the PIK Dividends (as defined in the Series C Certificate of Designations).
“Predecessor Agreement” has the meaning ascribed to it in the Recitals.
“Preferred Manager” has the meaning set forth in Section 6.2.
“PubCo” has the meaning set forth in the definition of “Liquidity Event”.
“Qualified IPO” means an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8 (or any successor form)) of the common equity of the Class B Member or any of its direct or indirect shareholders (or a corporate successor of any of the foregoing) that constitutes a Qualified IPO as defined in the Certificates of Designations.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
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“Series B Certificate of Designations” means the Second Amended and Restated Certificate of Designations of Series B Convertible Preferred Stock of the Class B Limited Partner filed with the Delaware Secretary of State on or about the date hereof, as amended, restated or modified from time to time.
“Series C Certificate of Designations” means the Amended and Restated Certificate of Designations of Series C Convertible Preferred Stock of the Class B Limited Partner filed with the Delaware Secretary of State on or about the date hereof, as amended, restated or modified from time to time.
“Series D Certificate of Designations” means the Certificate of Designations of Series D Convertible Preferred Stock of the Class B Limited Partner filed with the Delaware Secretary of State on or about the date hereof, as amended, restated or modified from time to time.
“Stockholders Agreement” means the Second Amended and Restated Stockholders Agreement by and among the Class B Member and the equityholders of the Class B Member dated the date hereof, as amended, restated or modified from time to time.
“Subject Holder” has the meaning set forth in Section 3.8(b).
“Subsidiary” of a Person shall mean any other Person of which more than fifty percent (50%) of the outstanding Equity Securities having ordinary voting power under ordinary circumstances to elect a majority of the board of directors or similar governing body of such other Person (irrespective of whether at such time Equity Securities of any other classes of such other Person shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly controlled by such Person, by such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person. Unless otherwise indicated herein, each reference to the term “Subsidiary” shall mean a Subsidiary of the Company. For the avoidance of doubt, the Partnership and all of its Subsidiaries shall constitute Subsidiaries of the Company for purposes of this Agreement.
“Surviving Party” has the meaning set forth in Section 3.8(c).
“TBOC” means the Texas Business Organization Code, as the same may be amended from time to time.
“Transfer” means, with respect to any Units, any assignment, sale, transfer, conveyance, pledge, grant of an option or other disposition or act of alienation of such or of any interest therein, whether voluntary or involuntary or by operation of law.
“Unanimous Consent” means, as of any determination date, the affirmative vote or written consent of all of the Managers then constituting the entire Board at a duly called and convened meeting of the Board or affirmative written consent in lieu of a meeting executed by all of the Managers then constituting the entire Board. For purposes of clarity, except as otherwise provided in Section 6.2, a Unanimous Consent requires the consent (whether at a meeting or as part of a unanimous written consent) of each Preferred Manager then entitled to serve on the Board and cannot be obtained during any period that a Preferred Manager then entitled to serve on the Board is not then serving on the Board.
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“Voting Agreement” has the meaning set forth in Section 3.8(c).
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2.1 Name and Formation. The name of the Company is “Xxxx Xxxx Holdings GP, LLC”. The Company was formed as a limited liability company on September 26, 2005. |
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2.4 Duration. The period of duration of the Company is perpetual from the date its Articles of Organization were filed with the Secretary of State of Texas, unless the Company is earlier dissolved in accordance with either the provisions of this Agreement or the TBOC. |
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(a) The purposes for which the Company is organized is to acquire and own a partnership interest in the Partnership and to serve as the general partner thereof, and to transact any or all lawful business incidental or related thereto for which limited liability companies may be organized under the TBOC. |
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(b) The Company shall have any and all powers which are necessary or desirable to carry out the purposes and business of the Company, to the extent the same may be legally exercised by limited liability companies under the TBOC. |
Class B Units, and shall have and may exercise in accordance with this Agreement all of the rights and powers, and shall have all of the obligations, of the Class B Units. |
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(b) The Class A Units shall have 100% of the economic interests in the Company and each item of income, gain, loss, deduction and credit of the Company shall be allocated and distributed to the Class A Member in the manner and at the times provided for in this Agreement. |
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(c) The Class B Units shall have no economic interest in the Company and shall not be entitled to receive any allocation or distribution of any item of income, gain, loss, deduction and credit of the Company. |
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(d) Except as provided in Section 6.4, any action requiring approval of the Members shall require the approval of the Class A Member. |
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3.2 Liability of the Members. The Members shall not be liable for the debts, liabilities or obligations of the Company in excess of their respective Capital Contributions. |
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3.5 Limitations on Transfers. The Class A Member shall not Transfer any of its Class A Units without the prior written consent of the Class B Member. |
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(b) Mandatory Contribution. If the Class A Member receives a “Liquidity Event Notice” in respect of an IPO or a Qualified IPO, the Class A Member shall contribute all of its outstanding Class A Units to the Class B Member in connection therewith at the instruction of the Class B Member, pursuant to a Contribution Agreement that is in the form attached hereto as Exhibit B. |
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(a) Upon the death of Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx (the “Deceased Executive”), all or any portion of the Units held directly or indirectly by such Deceased Executive (including, for purposes of clarity, the Units of any Class A Member over or with respect to which such Deceased Executive possessed or held (including, pursuant to the definition of Permitted Transfer, any Class A Member over which such Deceased Executive was required to possess or hold), directly or indirectly, voting control of the Units held by such Class A Member, whether under a Voting Agreement or otherwise) (such Units being referred to herein as the “Passing Interest”) shall be subject to the provisions of this Section 3.8. |
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(b) Upon such Deceased Executive’s death, the Company shall give prompt written notice to the Class B Member, the Highbridge Holders and the Bayou City Holders of such event (the “Passing Interest Notice”), which such notice shall contain the names and addresses for purposes of notice of (i) if all or any portion of the Passing Interest that is directly held by such Deceased Executive’s personal representative (the personal representative of the Deceased Executive’s estate, the “Personal Representative”) and (ii) if all or any portion of the Passing Interest is directly held by any Class A Member (any
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such Class A Member, a “Subject Holder” and together with each other Subject Holder, if any, and the Personal Representative, if any, collectively referred to herein as the “Passing Holders” and individually referred to herein as a “Passing Holder”). |
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(c) If, following the delivery of any Passing Interest Notice, either Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxxxxxxx, as applicable (the “Surviving Party”), survives such Deceased Executive, then, within thirty (30) days after delivery of such Passing Interest Notice, each Passing Holder shall transfer voting control of the Passing Interest to the Surviving Party, and the Passing Interest may be transferred or retained, as applicable, to, or by such Persons who would have otherwise held such Passing Interest had such Passing Interest not been subject to the provisions of this Section 3.8, and such Persons may hold such portion of such Passing Interest subject to the terms and conditions hereof, including entering into a Voting Agreement. If the Transfer of such portion of such Passing Interest is in connection with an Indirect Transfer, after giving effect to such Indirect Transfer (but prior to giving effect to any future Indirect Transfer or Transfer), the holders of such portion of such Passing Interest will be considered for all purposes hereunder an Indirect Permitted Transferee with respect to such Passing Interest. If the Transfer of such portion of such Passing Interest is in connection with a direct Transfer after giving effect to such direct Transfer (but prior to giving effect to any future Indirect Transfer or Transfer), such Transfer will be considered a Permitted Transfer for all purposes hereunder and the holders of such portion of such Passing Interest will be considered for all purposes hereunder a Permitted Transferee with respect to such Passing Interest. A “Voting Agreement” is an agreement between the Passing Holder and the Surviving Party, whereby voting control of the Passing Interest is held by the Surviving Party. The Surviving Party will provide a copy of the Voting Agreement to the Company, the Highbridge Holders and Bayou City Holders within forty-five (45) days of the end of such thirty (30)-day period. If the Surviving Party is a party to a Voting Agreement and such individual dies, then the provisions of this Section 3.8 shall apply with respect to the Units held by the Passing Holder and its successors, assigns and transferees. |
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(d) Notwithstanding the foregoing Section 3.8(c), if following the delivery of any Passing Interest Notice, neither Xxxxxxx X. Xxxxx nor Xxxxxx X. Xxxxxxxxx is still living, then, each Passing Holder shall be subject to, and upon the request of the Highbridge Holders or the Bayou City Holders, shall enter into, a voting agreement substantially in the form of the voting agreement attached as an exhibit to the Stockholders Agreement with conforming changes. |
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(a) The Company shall provide each owner of membership interests in the Company a certificate in such form as is approved by the Company and conforms with applicable law, certifying the membership interests owned by it. Further, for purposes of providing for transfer of, perfecting a lien or encumbrance in, and other relevant matters related to a membership interest, a membership interest will be deemed to be a “security” subject to the rules set forth in Chapters 8 and 9 of the Texas Uniform Commercial Code and any similar Uniform Commercial Code provision adopted by any other relevant jurisdiction. |
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(b) In the absence of a more restrictive legend, all certificates evidencing membership interests will be stamped or typed in a conspicuous place with the following legend: |
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. WITHOUT REGISTRATION, THESE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT ON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR THE SUBMISSION TO THE COMPANY OF OTHER EVIDENCE SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY TRANSFER WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED THEREUNDER.
ANY SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE OR DISPOSITION OF THE MEMBERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE OR ANY INTEREST THEREIN IS SUBJECT TO THE TERMS AND PROVISIONS OF THE Third Amended And Restated LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY DATED AS OF AUGUST [ ], 2016.
(c)The Company may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the Person claiming the certificate to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Company may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or its legal representative, to advertise the same in such manner as it will require and/or to give the Company a bond in such sum 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, stolen or destroyed.
(d)Upon surrender to the Company or its transfer agent, if any, of a certificate representing membership interests duly endorsed or accompanied by proper evidence of succession, assignation or transfer in accordance with this Agreement and of the payment of all taxes applicable to the transfer of said membership interest, the Company will be obligated to issue a new certificate to the Person entitled thereto, cancel the old certificate and record the transaction upon its books, provided, however, that the Company will not be so obligated unless such transfer was made in compliance with the provisions of this Agreement and any applicable state and federal laws.
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(e)The Company will be entitled to recognize the exclusive right of a Person registered on its books as the owner of the indicated membership interests and will not be bound to recognize any equitable or other claim to or interest in such membership interests on the part of any Person other than such registered owner, whether or not it will have express or other notice thereof, except as otherwise provided by law.
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4.1 Distributions. Subject to Section 4.2 and the other provisions of this Agreement, the Company shall make distributions to the Class A Member at such times as determined by the Class A Member. |
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(a) No distribution shall be declared and paid unless, if after the distribution is made, the value of assets of the Company would exceed the liabilities of the Company, except liabilities to the Class A Member on account of its Capital Contributions. |
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(b) Notwithstanding anything to the contrary contained in this Agreement, without first obtaining the Unanimous Consent of the Board, the Company shall not cause or permit the Partnership to make any distribution of cash or property to any holder of Class A Units (as defined in the Partnership Agreement) unless, at the time of such distribution, no PIK Dividends are accrued and unpaid at such time. Notwithstanding the foregoing, to the extent a tax distribution is made from the Partnership to the Company pursuant to Section 4.2 of the Partnership Agreement, the Company shall distribute the same to the Class A Member promptly upon receipt of such distribution. |
shall make all decisions and take all actions for the Company in its individual capacity and in its capacity as general partner of the Partnership. Notwithstanding any provision contained in this Article VI, all actions of the Managers provided for herein may be taken by written consent without a meeting, or any meeting thereof may be held by means of a conference telephone. Any such action that may be taken by the Managers without a meeting shall be effective only if the written consent or consents are in writing, set forth the action so taken, and are signed by the number of Managers constituting not less than the minimum amount of Managers that would be necessary to take such action at a meeting at which the Managers entitled to vote on the action were present and voted. |
any Subsidiary or otherwise) to, in its individual capacity or in its capacity as general partner of the Partnership, take, or cause or permit any of its officers or Subsidiaries to take, any action that would require AMIH Unanimous Consent if the Class B Member or any of its Subsidiaries were to take the same or similar action. |
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(a) Subject to Sections 6.4 and 6.5, the Board may appoint such officers of the Company as it deems necessary. Each officer shall be appointed for such term and shall exercise such powers, perform such duties and have such authority as determined from time to time by the Board. The Board may appoint a Chief Executive Officer, President, one or more Vice Presidents, a Secretary, Treasurer, Chief Financial Officer and any other officers or assistant officers as it deems appropriate. Any two or more offices may be held by the same person. |
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(b) Except as modified by the Board by written resolution, officers will have such powers and duties generally pertaining to their offices and such powers and duties as conferred by this Agreement. |
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(i) Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the Members and exercise and perform such other powers and duties as may from time to time be assigned to the Chief Executive Officer by the Board or by this Agreement. |
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(ii) President. The President of the Company, subject to the control of the Board, shall have the responsibility for the general direction of the affairs of the Company, and general supervision over its other officers, responsibility for the general direction of the operational affairs of the Company, and general overall responsibility for the day-to-day operations of the Company. The President may sign in the name of the Company (1) all contracts or other instruments authorized by the Board and (2) all contracts or instruments in the usual and regular course of business of the Company, except in cases where the signing thereof shall be expressly delegated by the Board or by this Agreement to another officer or agent of the Company or when the Board shall have expressly provided that the President shall not have such authority. In addition, the President shall perform all duties incident to the office of President and such other duties as from time to time may be assigned to him or her by the Board or as prescribed by this Agreement. |
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(iii) Vice Presidents. At the request of the President, or in his or her absence or disability, the Vice Presidents, in the order of their election, shall perform the duties of the President, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the President. The Vice Presidents shall
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perform such duties and exercise such powers as may from time to time be assigned to them by the Board or the President. |
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(iv) Secretary. The Secretary shall keep the minutes of all meetings of the Members and shall have general charge of such books and records of the Company as the Board may direct, and in general shall perform all duties and exercise all powers incident to the office of Secretary and such other duties and powers as the Board or the President may from time to time assign to or confer on the Secretary. |
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(v) Treasurer. The Treasurer shall have control of and shall be responsible for all matters pertaining to the accounts and finances of the Company and shall direct the manner of certifying the same, including the manner of keeping all vouchers for payments by the Company and all other documents relating to such payments; all operating and financial statements of the Company and its various committees; the books of account of the Company, their arrangements and classification; the accounting and auditing practices of the Company; all matters relating to taxation; the care and custody of all monies, funds and securities of the Company; and the collection of all accounts and the maintenance of full and accurate accounts of all receipts, disbursements and contributions of the Company. The Treasurer shall have the power to endorse for deposit or collection or otherwise all checks, drafts, notes, bills of exchange or other commercial papers payable to the Company, and to give proper receipts or discharges for all payments to the Company. The Treasurer shall perform such duties and exercise such powers, as are incident to the Office of Treasurer and such other duties and powers as the Board or the President may from time to time assign to or confer on the Treasurer. |
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(vi) Chief Financial Officer. The Chief Financial Officer shall have the duty of oversight over all Company financial matters, including supervision over the duties of the Treasurer and controller of the Company. The Chief Financial Officer shall perform such duties and exercise such powers as are incident to the office of Chief Financial Officer, and such other duties and powers as the Board or the President may from time to time to assign to or confer on the President. |
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(c) Subject to the other provisions of this Agreement, the compensation of all officers of the Company shall be fixed by the Board. |
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(d) Each officer of the Company shall hold office until his successor is chosen and qualified or until his death, resignation or removal from office. Any officer appointed by the Board may be removed either with or without cause by the Board at any time, but such removal shall be without prejudice to the contractual rights, if any, of the individual so removed. If for any reason an officer’s position becomes vacant, the vacancy may be filled by the Board. |
investments of any and every type and description, with no duty or obligation (i) to refrain from engaging in such activities, (ii) to offer the right to participate in such activities to the Company or (iii) to account to, or to share the results or profits of such activities with the Company. Any doctrine of “company opportunity” or similar doctrine is hereby expressly disclaimed. The Members hereby waive any and all fiduciary duties that, absent such waiver, may be implied by law, and in doing so, recognize, acknowledge and agree that their duties and obligations to one another and to the Company are only as expressly set forth in this Agreement or the non-waivable provisions of applicable law. |
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7.1 Records and Reports. The Company shall maintain records and accounts of all operations and expenditures of the Company and all records required to be maintained pursuant to the TBOC. |
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(a) The Company shall be dissolved upon the Unanimous Consent of the Board. |
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(b) Upon dissolution of the Company, the business and affairs of the Company shall be wound up, and the assets of the Company shall be liquidated under this ARTICLE VIII. |
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(c) Dissolution of the Company shall be effective as of the day on which the event occurs giving rise to the dissolution, but the Company shall not terminate until there has been a winding up of the Company’s business and affairs, and the assets of the Company have been distributed as provided in Section 8.2. |
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(d) Upon dissolution of the Company, the Members may cause any part or all of the assets of the Company to be sold in such manner as the Members shall determine in an effort to obtain the best prices for such assets; provided, however that the Members may distribute assets of the Company in kind to the extent practicable. |
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8.2 Distribution of Assets Upon Dissolution. In settling accounts after dissolution, the assets of the Company shall be paid in the following order: |
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(a) First, to creditors, in the order of priority as provided by applicable law, except those to any Member on account of its Capital Contributions; and |
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(b) Second, any remainder shall be distributed to the Class A Member. |
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(a) Except as expressly set forth to the contrary in this Agreement, all notices, requests or consents provided for or required to be given hereunder shall be in writing and shall be deemed to be duly given if personally delivered or mailed by certified mail, return receipt requested, or nationally recognized overnight delivery service with proof of receipt maintained, at the address set forth on Exhibit A (or any other address that any such party may designate by written notice to the other parties). |
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(b) Any such notice shall, if delivered personally, be deemed received upon delivery; shall, if delivered by certified mail, be deemed received upon the earlier of actual receipt thereof or five Business Days after the date of deposit in the United States mail, as the case may be; and shall, if delivered by nationally recognized overnight delivery service, be deemed received upon the first Business Day after the date of deposit with the delivery service. |
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(c) Whenever any notice is required to be given by applicable law, the Articles of Organization or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. |
services and costs associated therewith. The Company Tax Matters Member shall keep the other Members informed as to the status of any audit of the Company’s tax affairs. |
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(b) The Class B Member shall have the sole and exclusive right to cause the Company to act in its capacity as the “Tax Matters Partner” pursuant to Section 11.7 of the Partnership Agreement (the “Partnership Tax Matters Member”). The Partnership Tax Matters Member is authorized to cause the Company to take such actions and to execute and file all statements and forms on behalf of the Partnership in its capacity as Tax Matters Partner which may be permitted or required by the applicable provisions of the Code or Treasury Regulations issued thereunder. The Partnership Tax Matters Member is authorized to cause the Company to make any election permissible under law (including the election under Section 754 of the Code) that is in its sole determination in the best interests of the Partnership, and the Partnership Tax Matters Member shall cause the Company to determine the manner in which, in the event of a transfer of all or part of a limited partner’s units, the shares of profits and losses are allocated between the transferor and the transferee, such manner which shall be in the sole discretion of the Partnership Tax Matters Member, provided that such manner is not inconsistent with the applicable provisions of the Code and the Treasury Regulations. The Partnership Tax Matters Member shall have full and exclusive power and authority to cause the Company to act on behalf of the Partnership in any representation of the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to cause the Company to expend Partnership funds for professional services and costs associated therewith. The Partnership Tax Matters Member shall keep the other Members informed as to the status of any audit of the Partnership’s tax affairs. |
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(a) Governing Law. This Agreement and any claim, controversy or dispute arising under or related in any way to this Agreement, the transactions leading to this Agreement or contemplated hereby, and/or the interpretation and enforcement of the rights and duties of the parties hereunder or related in any way to the foregoing, shall be governed by and construed in accordance with the internal, substantive laws of the State of Texas applicable to agreements entered into and to be performed solely within such state without giving effect to the principles of conflict of laws thereof. |
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(b) CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ANY PROCEEDING ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER OR RELATED IN ANY WAY TO THE FOREGOING MAY ONLY BE INSTITUTED IN THE STATE OR FEDERAL COURTS OF THE STATE OF DELAWARE AND EACH PARTY WAIVES ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING, AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH PROCEEDING. SERVICE OF PROCESS WITH RESPECT THERETO MAY BE MADE UPON A PARTY HERETO BY MAILING A COPY THEREOF BY
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REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS PROVIDED IN SECTION 9.4. |
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(d) In the event of a direct conflict between the provisions of this Agreement and (i) any provision of the Articles of Organization or (ii) any mandatory, non-waivable provision of the TBOC, such provision of the Articles of Organization or the TBOC shall control. If any provision of the TBOC provides that it may be varied or superseded in the agreement of a limited liability company (or otherwise by agreement of the members of a limited liability company), such provision shall be deemed superseded and waived in its entirety if this Agreement contains a provision addressing the same issue or subject matter. |
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(e) If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. |
Agreement or any provision herein contained. The rights under this Agreement may be assigned by a Member to a transferee of all or a portion of such Member’s Units transferred in accordance with this Agreement (and shall be assigned to the extent this Agreement requires such assignment), but only to the extent of such Units so transferred; it being understood that the assignment of any rights under this Agreement shall not constitute admission to the Company as a Member unless and until such transferee is duly admitted as a Member in accordance with this Agreement. |
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9.13 Counterparts. This Agreement may be executed in counterparts and all such counterparts shall be construed together to form a single document. |
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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The undersigned, being all of the Members of the Company, do hereby ratify, confirm and approve the adoption of this Agreement as the limited liability company agreement of the Company, and does hereby assume and agree to be bound by and to perform all of the terms and provisions set forth in this Agreement effective as of the date first written above.
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XXXX XXXX RESOURCES, LP, |
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a Texas limited partnership |
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By: Xxxx Xxxx Resources GP, LLC, |
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a Texas limited liability company, |
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its General Partner |
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By: /s/ XXXXXXX X. XXXXX |
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Xxxxxxx X. Xxxxx, |
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Manager |
Signatures Continued on Next Page.
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HIGH MESA INC., |
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a Delaware corporation |
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By: /s/ XXXXXX X. XXXXXXXXX |
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Xxxxxx X. Xxxxxxxxx, |
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President and Chief Executive Officer |
End of Signatures
