AZOTTO TECHNOLOGY LLC
a Texas Limited Liability Company
COMPANY AGREEMENT
THE MEMBERSHIP INTERESTS REFERENCED HEREIN HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
NOR PURSUANT TO THE PROVISIONS OF ANY STATE SECURITIES ACT
CERTAIN RESTRICTIONS ON TRANSFERS OF INTERESTS
ARE SET FORTH HEREIN
COMPANY AGREEMENT
OF
AZOTTO TECHNOLOGY LLC
a Texas Limited Liability Company
This Company Agreement of Azotto Technology LLC, a Texas limited liability
company (the "Company"), is hereby duly adopted by the initial manager(s)
set forth in the Certificate of Formation, and is hereby ratified,
confirmed and approved as such by the parties subscribing hereto as
the initial members of the Company.
ARTICLE I
Definitions
1.1 Definitions. The following terms used in this Company Agreement
shall have the
following meanings (unless otherwise expressly provided herein):
"Act" shall mean the Texas Business Organizations Code, as the same may be
amended from time to time.
"Annual Net Income" shall mean that portion of the Available Cash as
determined by the Manager, following generally accepted accounting
principles, to represent the Company's Net Income for a fiscal year.
Working Cash Reserve allocations may apply prior to determination of
Annual Net Income.
"Available Cash" of the Company shall mean all cash funds of the
Company on hand from time to time (other than cash funds obtained
as Capital Contributions by the Members and cash funds obtained from
loans to the Company) after (i) payment of all operating expenses of
the Company as of such time, (ii) provision for payment of all outstanding
and unpaid current obligations of the Company as of such time, and (iii)
provision for a working cash reserve in accordance with Section 6.9 below.
"Capital Contribution" means any contribution to the capital of the
Company in cash or property by a Member whenever made.
"cocte" means the internal Revenue Code of 1986, as amended.
"Company" means Azotto Technology LLC, a Texas limited liability company.
"Company Agreement" means this Agreement as amended from time to time.
COMPANY AGREEMENT OF PAGE 2 AZOTTO TECHNOLOGY LLC
"Fiscal Year" means the Company's fiscal year, which shall be the
calendar year.
"Former Member" shall mean a member that causes a Transfer Event.
"Initial Capital Contribution" means the initial contribution to
the capital of the Company made by a Member pursuant to this Company
Agreement.
"Majority" means, (1) with respect to the Managers a vote of all of
the Managers; and (2) with respect to the Members, a combination of
any of such Members owning fifty-one percent (51%) or more of the
Membership Interests of the Company.
"Manager" means Xxxxx Xxxxxxxx as the initial manager, or any other
person, persons or entity that succeeds any of them in that capacity.
"Managers" means all such entities and persons collectively in their
capacity as Managers of the Company.
"Member" means each person designated as a Member on Schedule 1,
attached hereto and made a part hereof, any successor or successors
to all or any part of any such person's interest in the Company, or
any additional member admitted as a member of the Company in accordance
with Article VII, each in the capacity as a member of the Company.
"Members" means all such persons and entities collectively in their
capacity as members of the Company.
"Membership Interest" or "Percentage Interest" means the percentage
of ownership interest of a Member of the Company at any particular time.
"Net Income" and "Net Losses" mean the profits and losses of the
Company, as the case may be, as determined for federal income tax
purposes as of the close of each of the fiscal years of the Company.
"Pro Rata Part" shall mean the percentage expression of a fraction,
the numerator of which is a Member's respective Percentage Interest
and the denominator of which is the aggregate Percentage Interests of
all Members involved in the respective transaction or having a
respective right or option.
"Rights" means those rights associated with a Membership Unit in
connection to Net Income and Net Losses and Distributions (i.e.,
"Financial Rights"), the right to assign such rights, rights to vote
(i.e. "Governance Rights") and receive notices in accordance with the
terms of this Agreement. "Rights" means those rights associated with a
Membership Unit in connection to Net Income and Net Losses and
Distributions (i.e., "Financial Rights"), the right to assign such
rights, rights to vote (i.e. "Governance Rights") and receive notices
in accordance with the terms of this Agreement.
"Transfer Event" shall mean the: (a) death of any Member who is a
natural person; (b) a determination by a court of competent jurisdiction
that any Member who is a natural person is legally incompetent or the
permanent disability of any Member who is a natural person (as
determined by a physician approved by the Former Member or such
Former Member's trustees) or heir(s) and by Member(s) owning a
majority of Percentage Interests of all Members);
(c) Bankruptcy of a Member; (d) dissolution or termination, whether
by merger or otherwise, of any Member who is a firm, corporation,
trust, or other entity; (e) Member's conviction of a felony or crime
of moral turpitude; or (f) Member's embezzlement from or defrauding
of the Company or other Members, as determined by Members owning a
majority of the Percentage Interests.
ARTICLE II
Formation of the Company
2.1 Name and Formation. The name of the Company is Azotto
Technology LLC, a Texas limited liability company. The Certificate of
Formation of the
Company was filed with the State of Texas and the Company formed on
March 24, 2023, pursuant to the Act.
2.2 Principal Place of Business. The initial principal
place of business of the
Company shall be at such place or places as the Majority of the
Managers may from time to time deem necessary or advisable. A
Majority of the Managers shall have the power to change the
location of the principal place of business in its discretion
without amendment to this Company Agreement.
2.3 Registered Office and Registered Agent. The Company's
initial registered office
shall be at 0000 00xx Xxxxxx, Xxxxx, Xxxxx 00000, and the name of its
initial registered agent at such address shall be Xxxxx Xxxxxxxx. The
registered agent and office may be changed by resolution of the Managers,
upon filing the statement required by law.
2.4 Term. The term of existence of the Company shall be perpetual,
unless the
Company is earlier dissolved in accordance with either the provisions of this
Company Agreement or the Act.
2.5 Purposes and Powers. 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 Act.
2.6 Classes of Membership Interests. The Company shall have a single
class of
Membership Interests. The holders of the Company's Units shall have the right
to vote and the right to share in the Company's profits and/or losses as more
fully specified herein.
ARTICLE III
Rights and Duties of Managers
3.1 Management. The powers of the Company shall be exercised by
or under the authority of, xxx the business and affairs of the Company shall
be managed under, its designated Manager(s).
3.2 Number of Managers. The required number of Managers of the
Company shall be at least one (1). The initial Managers of the Company are
as set forth in the definition of Managers in Article 1 hereof. The number
of Managers that shall constitute the entire Board of Managers shall be
determined by resolution of a Majority of the Members at any annual meeting
of the Members, but shall never be less than one (1).
3.3 Election. At each annual meeting of Members, Managers
shall be elected to hold
office until the next annual meeting of Members and until their successors
are elected and qualified. No Manager need be a Member, a resident of the
State of Texas, or a citizen of the United States.
3.4 Change in Number; Vacancies. No decrease in the number of
Managers constituting the entire Board of Managers shall have the effect
of shortening the term of any incumbent Manager. In the case of any
increase in the number of Managers, or in the case of the death,
retirement, resignation, or removal of a Manager, the vacancies to be
filled by such increase or death, retirement, resignation, or removal
may be filled by (a) the Board of Managers for a term of office
continuing only until the next election of one or more Managers by the
Members, or (b) the Members at any annual or special meeting of the
Members. A Manager elected to fill a vacancy shall be elected to serve
for the unexpired term of his predecessor in office.
3.5 Removal. Except as otherwise may be provided by the
Members, at any meeting of Members called expressly for that purpose,
any Manager or the entire Board of Managers may be removed, with or
without cause, by a Majority of the Members.
3.6 Place of Meetings; Action Without Meeting. All meetings
of the Managers of the
Company may be held either within or outside the State of Texas.
Notwithstanding any provision contained in this Article III, 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 which 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 whose vote would
be required at a meeting at which all Managers of the Company were
present and voted. In such event, the action taken shall constitute
the action of the Company the same as if taken at a duly called and
held meeting of the Managers.
3.7 Meetings of Managers. Meetings of Managers may be
held at such time and
place either within or outside the State of Texas as shall from time
to time be determined by a Majority of the Managers provided notice
is given to all the Managers. Meetings of the Managers may be called
by any Manager on three (3) days' notice to each Manager, either
personally or by mail, telephone or by facsimile, unless a shorter
period of time is consented to by a Majority of the Managers.
3.8 Quorum. At all meetings of the Managers, the
presence of all the Managers for
the actions requiring unanimity and for all other actions, a Majority
of the Managers, shall be necessary and sufficient to constitute
a quorum for the transaction of business unless a greater number
is required by law. If a quorum shall not be present at any meeting
of the Managers, the Managers present at the meeting may adjourn
the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
3.9 Attendance and Waiver of Notice. Attendance of a
Manager at any meeting shall
constitute a waiver of notice of such meeting, except where a
Manager attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is
not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of the Managers need
be specified in the notice or waiver of notice of such meeting.
3.10 Compensation and Reimbursement of Managers. No Manager shall
receive compensation from the Company for serving as Manager, or
reimbursement for any expenses that he incurs in connection with
his service as the Manager except for transportation, hotels, meals
and other Company approved expenses to the extent not reimbursed
by the Company.
3.11 Limited Liability. No Manager or Member of the Company shall
be liable to the Company or its Members for monetary damages for
an act or omission in the Manager's capacity as such, except for
intentional acts of fraud or willful misconduct. Any repeal or
modification of this paragraph by the Members shall not adversely
affect any right or protection of a Manager existing at or prior
to the time of such repeal or modification.
ARTICLE IV
Meetings of Members
4.1 Place of Meetings. All meetings of the Members shall be held at the
principal office of the Company or at such other place within or outside of the
State of Texas as may be determined by a Majority of the Members and set forth
in the respective notice or waivers of notice of such meeting.
4.2 Meetings of Members. Meeting of the Members of the Company for the
transaction of such business as may properly come before the meeting shall be
held at such time and date as shall be designated by a Majority of the
Members from time to time and stated in the notice of the meeting.
Meetings of the Members may be called by a Majority of the Members.
Business transacted at all special meetings shall be confined to the
purposes stated in the notice.
4.3 Notice of Meetings of Members. Written or printed notice
stating the place, day
and hour of the meeting and, in the case of special meetings, the purpose
or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of a Majority of the
Members or person calling the meeting, to each Member of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the Member
at his address as it appears on the transfer records of the Company, with
postage prepaid.
4.4 Quorum. Members owning a Majority of all Membership
Interests must be
present in order to constitute a quorum at all meetings of the Members.
Once a quorum is present at the meeting of the Members, the subsequent
withdrawal from the meeting of any Member prior to adjournment or the
refusal of any Member to vote shall not affect the presence of a quorum
at the meeting. If, however, such quorum shall not be present at any
meeting of the Members, the Members entitled to vote at such meeting
shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the
holders of the requisite amount of Membership Interests shall be
present or represented. At any meeting of the Members at which a
quorum is present, the Majority vote of all the Members present in
person or by proxy shall be the act of the Members, unless otherwise
provided herein or by law.
4.5 Majority Vote; Withdrawal of Quorum. If a quorum
is present in person or represented by proxy at any meeting, the
vote of one or more Members whose Percentage Interests total
more than fifty percent (50%) of all Members, who are present
in person or represented by proxy, shall decide any question
brought before such meeting, unless the question is one on which,
by express provision of law, the Certificate, or this Agreement
a different vote is required, in which event such express provision
shall govern and control the decision of such question. The Members
present at a duly convened meeting may continue to transact
business until adjournment, notwithstanding any withdrawal of
Members that may leave less than a quorum remaining.
4.6 Actions Without a Meeting and Telephone Meetings.
Notwithstanding any provision contained in this Article IV, all
actions of the Members 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 which may be taken
by the Members 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 holder or holders of Membership
Interests constituting not less than the minimum amount of Membership
Interests that would be necessary to take such action at a meeting at
which the holders of all Membership Interests entitled to vote on the
action were present and voted.
ARTICLE V
Contributions to Capital and Liability of Members
5.1 Capital Contributions.
(a) Upon the execution of this Company Agreement or upon the
subsequent call of a Majority of the Managers, each Member shall
contribute capital to the Company in the amount set forth as the
Initial Capital Contribution of such Member on Schedule 1 attached
hereto and incorporated herein by reference.
(b) Additional capital contributions shall only be required if
a Majority of the Managers require such additional contributions.
Each Member shall make additional capital contributions pro rata
in accordance with his Membership Interests.
(c) No Member shall be paid interest on any Capital Contribution
to the Company.
5.2 Withdrawal or Reduction of Members' Contributions
to Capital.
(a) A Member shall not receive out of the Company's property
any part of its Capital Contributions until all liabilities of the
Company have been paid or there remains property of the Company
sufficient to pay such liabilities.
(b) No Member shall have the right to withdraw all or any
part of its Capital Contribution or to receive any return on
any portion of its Capital Contribution, except as may be otherwise
specifically provided in this Company Agreement.
(c) No Member shall have priority over any other similar Member,
either as to the return of Capital Contributions or as to profits,
losses or distributions; provided that this subsection shall not
apply to loans (as distinguished from Capital Contributions)
which a Member has made to the Company.
5.3 Liability of Members. No Member shall be liable
for the debts, liabilities or
obligations of the Company beyond his respective Capital Contribution.
No Member shall be required to contribute to the capital of, or to
loan, the Company any funds.
5.4 Membership Interests. The initial Membership
Interest of each Member is set
forth opposite his respective name on Schedule 1 attached hereto.
ARTICLE VI
Allocations, Distributions, Elections and Reports
6.1 Tax Allocations. All items of income, gain,
loss, deduction and credit of the
Company shall be allocated among the Members in proportion to
their respective Membership Interests.
6.2 Distributions.
(a) All distributions among the Members shall be made in
proportion to their respective Membership Interests. Members,
Managers and officers of the Company shall be reimbursed for
Company approved expenses prior to distributions of Annual Net
Income or Available Cash to Members.
(b) Subject to the provisions of Article VIII hereof, the
Annual Net Income of the Company shall be distributed to Members as follows:
(i) prior to January lhi, 2025, any distributions shall be made as
determined by a Majority of the Managers; and
(ii) after January 1, 2025, the Class B Members shall be entitled to
receive an annual distribution of the Annual Net Income. .
(c) Subject to the provisions of Article VIII hereof, the Available
Cash of the Company shall be distributed to Members as follows:
(i) any distributions shall be made as determined by a Majority
of the Managers.
6.3 Limitation Upon Distributions. No distribution shall be
declared and paid unless, after the distribution is made, the
assets of the Company exceed the liabilities of the Company.
6.4 Cash Basis. Unless a Majority of the Managers determines
that the Company should use another method, the Company shall use
the cash method of accounting. All decisions as to accounting matters,
except as otherwise specifically set forth herein, shall be made by the
Board of Managers. The Members may rely upon the advice of their
accountants as to whether such decisions are in accordance with
accounting methods followed for federal income tax purposes.
6.5 Accounting Principles.
(a) The profits and losses of the Company shall be determined in
accordance with generally accepted accounting principles applied
on a consistent basis under the cash receipts and disbursements
method of accounting, or under such other method as determined
by a Majority of the Managers.
(b) The Managers shall designate a financial institution as
depository of the Company and is hereby authorized to establish
and maintain all necessary bank accounts therewith. Each Manager
shall have equal access to bank accounts of the Company but only
spend Company funds in accordance with the budget approved by a
Majority of the Managers.
6.6 Records and Reports. At the expense of the Company, the
Managers shall maintain records and accounts of all operations
and expenditures of the Company. At a minimum, the Company shall
keep at its principal place of business the following records:
(a) A current list that states:
(i) The name and mailing address of each Member; and
(ii) The Membership Interest owned by each Member;
(b) Copies of the federal, state and local information or
income tax returns for each of the Company's six (6) most recent tax years;
(c) A copy of the Certificate of Formation, this Company
Agreement, and all amendments or restatements, executed copies
of any powers of attorney, and copies of any document that
creates, in the manner provided by the Certificate of Formation
or this Company Agreement;
(d) Correct and complete books and records of account of the
Company; and
(e) Any other books, records or documents required by the
Act or other applicable law.
6.7 Returns and Other Elections. The Managers shall cause
the preparation and timely filing of all tax and/or informational
returns required to be filed by the Company pursuant to the Code
and all other tax returns deemed necessary and required in each
jurisdiction in which the Company does business. Copies of such
returns, or pertinent information therefrom, shall be furnished
to the Members within ninety (90) days after the end of each Fiscal
Year of the Company. All elections permitted to be made by the
Company under federal or state laws shall be made by a Majority
of the Managers.
6.8 Tax Matters.
(a) Preparation of Tax Returns. The Managers shall arrange
for the preparation and timely filing of all returns of Company income,
gains, deductions, losses and other items necessary for federal, state
and local income tax purposes. A copy of the Company's federal income
tax return will be furnished to all Members at least fifteen (15) days
before such tax return is actually filed. The classification,
realization and recognition of income, gains, losses and deductions
and other items shall be on the cash or accrual method of accounting
for federal income tax purposes, as the Managers shall determine in
accordance with applicable law. A Majority of the Managers may pay
state and local income taxes attributable to operations of the Company
and treat such taxes as an expense of the Company.
(b) Tax Elections. Except as otherwise provided herein, a Majority
of the Managers shall determine whether to make any election available
to the Company under the Code.
6.9 Working Cash Reserve. The Board of Managers may from time to
time establish a working cash reserve for capital expenditures, unforeseen
contingencies, projected operating deficits, and other corporate purposes
and may increase or decrease the amount in such reserve in its
business judgment.
ARTICLE VII
Transferability; Non-Solicitation; Intellectual Property
7.1 Restrictions on Transfer of Membership Interest. No Member shall
have the right to sell, transfer or assign all or any portion of its
Membership Interest unless all Members consent in writing.
7.2 Transfer Event with Regard to a Member.
(a) Upon the occurrence of a Transfer Event, the Company (and
then the remaining Member's) shall have the option to purchase the
Former Member's Interest in accordance with the provisions of
subsections (b) and (c) herein below.
(b) Upon the occurrence of a Transfer Event, the Former Member
or Former Member's tnistee(s) or heir(s) shall be required to
immediately provide the Company and all remaining Members with a
written notice regarding the occurrence of the Transfer Event.
Upon the occurrence of the Transfer Event, the Company (through
its Board of Managers) shall have the first option to purchase
all of such Interest and may do so if it makes such election by
providing the Former Member, or such Former Member's trustee(s)
or heir(s), with a written notice of such intention within the
thirty (30) day time period following the Company's receipt of
a written notice regarding the Transfer Event. If the Company
does not elect to purchase the Former Member's Interest within
such thirty (30) day time period, the remaining Members shall
have the option to individually or collectively purchase all of
such Interest and may do so if they make such election by providing
the Former Member, or such Former Member's trustee(s) or heir(s),
with a written notice of such intention within forty-five (45) days
from the Company's receipt of a written notice regarding such
Transfer Event. The failure of any Member to submit a notice within
the applicable period shall constitute an election on the part of
such Member not to purchase any of the Former Member's Interest.
At a minimum, each remaining Member shall be entitled to purchase
a portion of the Former Member's Interest based on the remaining
Member's Pro Rata Part on the date of the Transfer Event. In the
event any remaining Member elects to purchase none or less than
all of such remaining Member's Pro Rata Part of the Former Member's
Interest, then the Members electing to purchase their respective
Pro Rata Part of the Interest may increase their percentages
proportionally. If the remaining Members fail to purchase the
entire Interest of the Former Member, the same shall pass by
operation of law to any assignee or shall remain in the hands of
the Former Member, subject to any right of the holder of such interest
to demand payment therefore according to Texas law. Notwithstanding
any provision of this Section to the contrary, the remaining Members
may mutually agree to an allocation of the Former Member's Interest
to be purchased by each of them.
(c) The Former Member's Interest shall be valued at an amount
equal to the fair market value of the Interest as determined by
agreement of the Former Member or such Former Member's trustee(s)
or heir(s) and a majority in Interest of the remaining Member(s)
within sixty (60) days after the notice to remaining Members or,
in case of a failure to agree within such sixty (60) day period,
as determined by an appraiser mutually agreed upon by the Former
Member or such Former Member's trustee(s) or heir(s) and a majority
in Interest of the remaining Member(s). The appraiser shall be
instructed to appraise the fair market value of the underlying
assets of the Company and then to discount the same by fifty
percent (50%) if the Transfer Event is as a result of the events
described in subclause (e) and (f) in the definition of Transfer
Event. The cost of the appraisal shall be borne equally by the
Company and the respective Former Member. If the Company or the
remaining Members elect to purchase all of the Former Member's
Interest as provided herein above, the purchase price shall be
paid as follows: if the Transfer Event is the death of the Former
Member, all insurance proceeds on the life of the Former Member
shall be paid immediately in a lump sum to the Former Member's
trustee(s) or heir(s), and with all other Transfer Events (including death),
the remainder of the purchase price shall be paid (i) in up to three (3)
equal annual installments of principal together with interest, commencing
to accrue from the date of closing, at an interest rate equal to one
percent (1%) plus prime as set forth in the Wall Street Journal on the
date of the Transfer Event, or (ii) as otherwise agreed by the Former
Member's trustees) or heir(s) and a majority in Interest of the
remaining Members. Nothing contained herein is intended to prohibit
Members from agreeing upon terms and conditions for the
purchase by the Company or any Member(s) of the Interest of any Member
in the Company desiring to retire, withdraw, or resign, in whole or in
part, as a Member (on such terms and conditions as may be agreed upon
by the selling Member and the Company or the remaining Member(s) as
the case may be).
7.3 Divorce of a Member. The spouse of each Member shall sign
the Spousal Consent attached hereto as Schedule 2. If upon the
divorce of a Member, the Member's spouse is awarded all or a portion
of the Member's Interest (the "Transferred Interest"), whether by
decree or operation of law, the Member shall be required to
immediately provide the Company and all remaining Members with
a written notice regarding such occurrence (the "Divorce Notice"),
such Divorce Notice to be provided promptly following the granting
of the divorce by a court of appropriate jurisdiction. In such event,
the divorced Member shall have the first option to purchase all of
such Transferred Interest and may do so if he/she makes such election
by providing his/her spouse with a written notice of such intention
within the thirty (30) day time period following the granting of
the divorce decree by the court. If the divorced Member does not
elect to purchase all of such Transferred Interest, then the
Company (through its Board of Managers) shall have the option to
purchase all or a portion of the remaining Transferred Interest
and may do so if it makes such election by providing the Member's
former spouse with a written notice of such intention within the
fortyfive (45) day time period following the Company's receipt of
the Divorce Notice. If the Company does not elect to purchase all
of the remaining Transferred Interest within such forty-five (45)
day time period, the remaining Members shall have the option to
individually or collectively purchase all or a portion of such
remaining Transferred Interest and may do so if they make such election
by providing the divorced Member with a written notice of such
intention within sixty (60) days from the Company's receipt of the
Divorce Notice. The failure of the Company and/or any Member to submit
a notice within the applicable period shall constitute an election on
the part of the Company and/or such Member not to purchase any of the
Transferred Interest. At a minimum, if the divorced Member and the
Company do not purchase all of the Transferred Interest, each remaining
Member shall be entitled to purchase a portion of the remaining
Transferred Interest based on the remaining Member's Pro Rata Part on
the date the divorce was granted. In the event any remaining Member
elects to purchase none or less than all of such remaining Member's
Pro Rata Part of the remaining Transferred Interest, then the Members
electing to purchase their respective Pro Rata Part of the remaining
Transferred Interest may increase their percentages proportionally.
If the Company and remaining Members fail to purchase the entire
Transferred Interest of the divorced Member, the same shall remain in
the hands of the Member's spouse. Notwithstanding any provision of this
Section to the contrary, the remaining Members may mutually agree to an
allocation of the Transferred Interest to be purchased by each of them.
The Transferred Interest shall be valued at an amount equal to the fair
market value of the Transferred Interest as determined by agreement of
the Company and the Member's spouse within twenty (20) days after the
provision of the Divorce Notice or, in case of a failure to agree
within such twenty (20) day period, as determined by an appraiser
mutually agreed
upon by the Company and the Member's spouse, taking into account all
applicable discounts, including minority discounts. The cost of the
appraisal shall be borne equally by the divorced Member and his/her spouse.
With regard to any parties purchase of the Transferred Interest from the
spouse of the divorced Member, the purchase price shall be paid as follows:
(i) in up to three (3) equal annual installments of principal together
with interest, commencing to accrue from the date of closing, at an interest
rate equal to one percent (1%) plus prime as set forth in the Wall
Street Journal on the date of the granting of the divorce; or (ii) as
otherwise mutually agreed by the spouse of the divorced Member and the
respective purchaser(s). If the spouse of the divorced Member retains
any of the Transferred Interest, he/she acknowledges and agrees that the
Interest shall remain subject to the terms and conditions set forth in
this Agreement.
7.4 Assignees. The Company shall not recognize for any
purpose any purported sale,
assignment or transfer of all or any fraction of the Membership Interest
of a Member unless approved by all the remaining Members, whereupon such
assignee may become a substituted Member. Until a person who is the
assignee of all or any fraction of the interest of a Member becomes a
substituted Member, he shall have no right to appoint a Manager or have
any rights to vote pursuant to this Company Agreement.
ARTICLE VIII
Dissolution and Termination
8.1 Dissolution. Upon dissolution of the Company for an
event under either Section
8.1(a) or 8.1(b), the business and affairs of the Company shall terminate
and the assets of the Company shall be liquidated under this Article VIII.
(a) Except as provided in Section 8.1(b), the Company shall be dissolved
upon the occurrence of one of the following events:
(i) Upon the election to dissolve the Company by written consent of the
holders of a Majority of the Members; or
(ii) The entry of a decree of judicial dissolution.
(b) If there is only one Member of the Company, the Company shall
dissolve and its affairs shall be wound up at such time as the Member
may elect.
(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.
(d) Upon dissolution of the Company, the Managers may cause any part
or all of the assets of the Company to be sold or liquidated in such
manner as a Majority of the Managers shall determine.
8.2 Distribution of Assets Upon Dissolution. In settling
accounts after dissolution,
the assets of the Company shall be paid in the following order:
(a) First, to creditors, in the order of priority as provided by law; and
(b) Thereafter, any remainder shall be distributed to the Members of
the Company, pro rata, in accordance with their respective Membership
Interests.
8.3 Distributions in Kind. If any assets of the Company
are distributed in kind, such
assets shall he distributed to the Members entitled thereto as
tenants-in-common in the same proportions as the Members would
have been entitled to cash distributions if such property had been
sold for cash and the net proceeds thereof distributed to the Members.
8.4 Articles of Dissolution. When all liabilities and
obligations of the Company have
been paid or discharged, or adequate provision has been made therefor,
and all of the remaining property and assets of the Company have been
distributed to the Members according to their respective rights and
interests, Articles of Dissolution shall be executed on behalf of the
Company by the Managers or an authorized Member and shall be filed
with the Secretary of State of Texas, and the Managers and Members
shall execute, acknowledge and file any and all other instruments
necessary or appropriate to reflect the dissolution and termination
of the Company.
ARTICLE IX
INTENTIONALLY OMITTED
ARTICLE IX
Miscellaneous Provisions
10.1 Notices. Any notice, demand or communication required or
permitted to be given by any provision of this Company Agreement
shall be deemed to have been sufficiently given or served for all
purposes if delivered personally to the party or to an Officer
of the party to whom the same is directed or, if sent by registered
or certified mail, postage and charges prepaid, addressed to the
Member's and/or Company's address as it appears in the Company's
records, as appropriate. Except as otherwise provided herein, any
such notice shall be deemed to be given three (3) business days
after the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail,
addressed and sent as aforesaid, or on the date of receipt if
sent by expedited or personal delivery.
10.2 Application of Texas Law. This Company Agreement and the
application or interpretation hereof, shall be governed exclusively
by the laws of the State of Texas, and specifically the Act.
10.3 No Action for Partition. No Member shall have any right to
maintain any action for partition with respect to the property
of the Company.
10.4 Headings and Sections. The headings in this Company Agreement
are inserted for convenience only and are in no way intended to
describe, interpret, define, or limit the scope, extent or intent
of this Company Agreement or any provision hereof. Unless the
context requires otherwise, all references in this Company Agreement
to Sections or Articles shall be deemed to mean and refer to Sections
or Articles of this Company Agreement.
10.5 Amendment of Certificate of Formation and this Company Agreement.
Except as otherwise expressly set forth in this Company Agreement and
the Certificate of Formation of the
Company, this Company Agreement may be amended, supplemented or restated
only upon the written consent of a Majority of the Members, provided,
however, any amendments to Section 3.1 hereof shall require a 71%
(seventy one percent) majority vote of the Members. Upon obtaining the
approval of any amendment to the Certificate of Formation, the Managers
shall cause the Amendment to the Certificate of Formation to be prepared
in accordance with the Act, and such Amendment shall be executed by the
Managers and shall be filed in accordance with the Act.
10.6 Numbers and Gender. Where the context so indicates, the masculine
shall include feminine and neuter, and the neuter shall include the
masculine and feminine, the singular shall include the plural and any
reference to a "person" shall mean a natural person or a corporation,
limited liability company, association, partnership, joint venture,
estate, trust or any other entity.
10.7 Binding Effect. Except as herein otherwise provided to the contrary,
this Company Agreement shall be binding upon and inure to the benefit
of the Members, their distributees, heirs, legal representatives, executors,
administrators, successors and assigns.
10.8 Counterparts. This Company Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and shall be
binding upon the Member who executed the same, but all of such counterparts
shall constitute the same Company Agreement.
SCHEDULE 1
Company Agreement of Azotto Technology LLC
a Texas Limited Liability Company
Names, Initial Capital Contributions and
Membership Interests of the Members
Value of
Name of Initial Capital Membership
Member Contribution Interest
Xxxxx Xxxxxxxx S 33.33%
Xxxx Xxxxxxxx 5 33.33%
Xxxxx Xxxxxxxx 33.33%
TOTAL 100.00%
COMPANY AGREEMENT OF SCHEDULE 17
AZOTTO TECHNOLOGY LLC.
IN WITNESS WHEREOF, the undersigned initial Managers of the Company have
caused this Company Agreement to be duly adopted by the Company dated
effective as of March 24, 2023.
MANAGER:
Xxxxx Xxxxxxxx
The undersigned Member, being the initial Member of the Company at this
time, does hereby ratify, confirm and approve the adoption of this
Company Agreement as the 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 Company Agreement.
MEMBERS:
Xxxxx Xxxxxxxx, Member
Xxxxx Xxxxxxxx, Member
