AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ENERGEA PORTFOLIO 2 LLC, a Delaware Limited Liability Company ___________ May 6, 2024
|
AMENDED AND RESTATED
OF
a Delaware Limited Liability Company
___________
May 6, 2024
|
AMENDED AND
RESTATED
OF
This Amended and Restated Limited Liability Company
Agreement (as amended from time to time in accordance with its terms, this "Agreement")
is entered on May 6, 2024, by and among Energea Portfolio 2 LLC, a Delaware
limited liability company (the "Company"), Energea Global LLC, a
Delaware limited liability company ("Energea Global"), and the persons
admitted to the Company as members by the Manager following the date of this
Agreement (the "Investor Members" or sometimes the "Members").
Introduction
WHEREAS, the Company was formed on January 13, 2020;
WHEREAS, the Members that own all of the limited liability
company interests of the Company entered into that certain Limited Liability
Company Agreement, dated as of April 29, 2020 and its first amendment, dated
December 3, 2020 (the "Prior LLC Agreement");
WHEREAS, the Company and the other parties hereto desire to
amend, restate and supersede the Prior LLC Agreement.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained in this Agreement, the sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1.
ARTICLE ONE: CONTINUATION OF LIMITED LIABILITY COMPANY
1.1.
Continuation of Limited Liability Company. The Company has been
formed in accordance with and pursuant to the Delaware Limited Liability
Company Act (the "Act") for the purpose set for the below. The rights
and obligations of the Members to one another and to third parties shall be
governed by the Act except that, in accordance with 6 Del. C. 18-1101(b),
conflicts between provisions of the Act and provisions in this Agreement shall
be resolved in favor of the provisions in this Agreement except where the
provisions of the Act may not be varied by contract as a matter of law.
1.2.
Name. The name of the Company shall be "Energea Portfolio 2 LLC"
and all of its business shall be conducted under that name or such other
name(s) as may be designated by the Manager.
1.3.
Purpose. The purpose of the Company shall be to invest in solar
energy projects in Brazil, as described more fully in the Offering Statement of
the Company filed with the Securities and Exchange Commission (the "SEC") in
connection with the Company's offering of securities under 17 CFR §230.251 et
seq (the "Offering Circular"), and engage in any other business in
which limited liability companies may legally engage under the Act. In carrying
on its business, the Company may enter into contracts, incur indebtedness,
sell, lease, or encumber any or all of its property, engage the services of
others, enter into joint ventures, and take any other actions the Manager deems
advisable.
1.4.
Fiscal Year. The fiscal and taxable year of the Company shall be
the calendar year, or such other period as the Manager determines.
2.
ARTICLE TWO: CONTRIBUTIONS AND LOANS
2.1.
Initial Contributions. The Manager has not contributed any capital
to the Company. Each Investor Member will contribute to the capital of the
Company the amount specified in his, her, or its Investment Agreement. The
capital contributions of Members are referred to in this Agreement as "Capital
Contributions."
2.2.
Other Required Contributions. No Member shall be obligated to
contribute any capital to the Company beyond the Capital Contributions
described in section 2.1. Without limitation, no such Member shall, upon
dissolution of the Company or otherwise, be required to restore any deficit in
such Member's capital account.
2.3.
Loans.
2.3.1.
In General. The Manager or its affiliates may, but shall not be
required to, lend money to the Company in the Manager's sole discretion. No
other Member may lend money to the Company without the prior written consent of
the Manager. Subject to applicable state laws regarding maximum allowable rates
of interest, loans made by any Member to the Company ("Member Loans")
shall bear interest at the higher of (i) the prime rate of interest designated
in the Wall Street Journal on any date within ten (10) days of the date of the
loan, plus four (4) percentage points; or (ii) the minimum rate necessary to
avoid "imputed interest" under section 7872 or other applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"). Such loans
shall be payable on demand and shall be evidenced by one or more promissory
notes.
2.3.2.
Repayment of Loans. After payment of (i) current and past-due
debt service on liabilities of the Company other than Member Loans, and (ii)
all operating expenses of the Company, the Company shall pay the current and
past-due debt service on any outstanding Member Loans before distributing any
amount to any Member pursuant to Article Four. Such loans shall be repaid pro
rata, paying all past-due interest first, then all past-due principal, then
all current interest, and then all current principal.
2.4.
Other Provisions on Capital Contributions. Except as otherwise
provided in this Agreement or by law:
2.4.1.
No Member shall be required to contribute any additional capital to the
Company;
2.4.2.
No Member may withdraw any part of his, her, or its capital from the
Company;
2.4.3.
No Member shall be required to make any loans to the Company;
2.4.4.
Loans by a Member to the Company shall not be considered a contribution
of capital, shall not increase the capital account of the lending Member, and
shall not result in the adjustment of the number of Shares owned by a Member,
and the repayment of such loans by the Company shall not decrease the capital
accounts of the Members making the loans;
2.4.5.
No interest shall be paid on any initial or additional capital
contributed to the Company by any Member;
2.4.6.
Under any circumstance requiring a return of all or any portion of a
capital contribution, no Member shall have the right to receive property other
than cash; and
2.4.7.
No Member shall be liable to any other Member for the return of his,
her, or its capital.
2.5.
No Third Party Beneficiaries. Any obligation or right of the
Members to contribute capital under the terms of this Agreement does not confer
any rights or benefits to or upon any person who is not a party to this
Agreement.
3.
ARTICLE THREE: SHARES AND CAPITAL ACCOUNTS
3.1.
Limited Liability Company Interests. The limited liability
company interests of the Company shall consist of Five
Hundred and One Million (501,000,000) "Shares" consisting of 1,000,000 "Common
Shares," all of which shall be owned by the Manager, and Five Hundred
Million (500,000,000) Investor Shares (the "Investor Shares"), all of which
shall be owned by the Investor Members.
3.2.
Classes of Investor Shares. The Manager may divide the Investor
Shares into one or more classes. The number of Shares of each such class of
Investor Shares, and the rights and preferences of each such class, shall be as
set forth in the resolution or resolutions of the Manager creating such class,
referencing this section 3.2 (each, an "Authorizing Resolution").
Without limitation, the Manager may establish, with respect to each class of
Investor Shares, its voting powers, conversion rights or obligations, redemption
rights or obligations, preferences as to distributions, and other matters. The
Authorizing Resolution providing for issuance of any class of Investor Shares
may provide that such class shall be superior or rank equally or be junior to
the Investor Shares of any other class except to the extent prohibited by the
terms of the Authorizing Resolution establishing another class.
3.3.
Share Splits and Consolidations. The Manager may at any time
increase or decrease the authorized and/or outstanding number of Shares of any class
or series, including Common Shares, provided that any increase or decrease in
the number of Shares outstanding shall be made pro rata with respect to
all Members owning the outstanding Shares of such class or series. The Manager
shall promptly notify all of the Members of any such transaction.
3.4.
Certificates. The Shares of the Company shall not be evidenced by
written certificates unless the Manager determines otherwise. If the Manager
determines to issues certificates representing Shares, the certificates shall
be subject to such rules and restrictions as the Manager may determine.
3.4.1. All
Shares in the Company shall be "securities" governed by Article 8 of the
Uniform Commercial Code in any jurisdiction (a) that has adopted revisions to
Article 8 of the Uniform Commercial Code substantially consistent with 1994
Revisions to Article 8 adapted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws and (b) whose law may be
applicable, from time to time, to the issues of perfection, the effect of
perfection or non-perfection, and the priority of a security interest in Shares
in the Company.
3.4.2. Members
shall receive a certificate in such form as attached hereto as Annex I and as
prescribed by any applicable law, which certificate shall certify the interest
of the Members in the Company.
3.5.
Registry of Shares. The Company shall keep or cause to be kept on
behalf of the Company a register of the Members of the Company. The Company
may, but shall not be required to, appoint a transfer agent registered with the
Securities and Exchange as such.
3.6.
Capital Accounts. A capital account shall be established and
maintained for each Member. Each Member's capital account shall initially be
credited with the amount of his, her, or its Capital Contribution. Thereafter,
the capital account of a Member shall be increased by the amount of any
additional contributions of the Member and the amount of income or gain
allocated to the Member, and decreased by the amount of any distributions to
the Member and the amount of loss or deduction allocated to the Member,
including expenditures of the Company described in section 705(a)(2)(B) of the
Code. Unless otherwise specifically provided herein, the capital accounts of
the Members shall be adjusted and maintained in accordance with Code section
704 and the regulations thereunder.
4.
ARTICLE FOUR: DISTRIBUTIONS
4.1.
In General. The Manager may, in its sole discretion, make and pay
distributions of cash or other assets of the Company to the Members.
4.2.
Special Rules Governing Distributions. Except as otherwise
provided in this Agreement or in an Authorizing Resolution establishing a class
of Investor Shares (i) any distributions of the Company not expressly payable
to the holders of a class of Investor Shares shall be payable to the holders of
the Common Shares, (ii) any distributions made to the holders of any class of
Investor Shares as a group shall be divided pro rata among such holders
based on their respective ownership of the Shares of such class, and (iii) no
Member shall have any right to distributions except as may be authorized by the
Manager.
4.3.
Items Taken Into Account. In determining the amount and timing of
distributions, the Manager may take into account the following items of income
and expense, among others:
4.3.1.
Revenue from the rental of solar
projects;
4.3.2.
Revenue from operations and maintenance
contracts;
4.3.3.
Payments made to landowners;
4.3.4.
The cost of utilities, security, insurance,
and software;
4.3.5.
Expenses associated with operating and
maintaining solar power projects;
4.3.6.
The net proceeds from the sale or refinancing
of property;
4.3.7.
The cost of equipment;
4.3.8.
Debt service payments;
4.3.9.
Cash distributions from, and capital
contributions to, entities in which the Company owns an interest;
4.3.10. Amounts added to and released from reserve accounts
established by the Manager in its sole discretion;
4.3.11. Fees paid to the Manager and its affiliates;
4.3.12. Fees paid to third parties; and
4.3.13. All of the other operating expenses of the Company.
4.4.
Tax Withholding. To the extent the Company is required to pay
over any amount to any federal, state, local or foreign governmental authority
with respect to distributions or allocations to any Member, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to that
Member. If the amount paid over was not withheld from an actual distribution
(i) the Company shall be entitled to withhold such amounts from subsequent
distributions, and (ii) if no such subsequent distributions are anticipated for
six (6) months, the Member shall , at the request of the Company, promptly
reimburse the Company for the amount paid over.
4.5.
Manner of Distribution. All distributions to the Members will be
made as Automated Clearing House (ACH) deposits into an account designated by
each Member. If a Member does not authorize the Company to make such ACH
distributions into a designated Member account, distributions to such Member
will be made by check and mailed to such Member after deduction by the Company
from each check of a Fifty Dollar ($50) processing fee.
4.6.
Other Rules Governing Distributions. No distribution prohibited
by 6 Del. C. §18-607 or not specifically authorized under this Agreement shall
be made by the Company to any Member in his or its capacity as a Member. A
Member who receives a distribution prohibited by 6 Del. C. §18-607 shall be
liable as provided therein.
5.
ARTICLE FIVE: MANAGEMENT
5.1.
Management by Manager.
5.1.1.
In General. The business and affairs of the Company shall be
directed, managed, and controlled by a single manager (the "Manager"). Energea
Global shall serve as the Manager of the Company.
5.1.2.
Powers of Manager. The Manager shall have full and complete
authority, power and discretion to manage and control the business, affairs and
properties of the Company, to make all decisions regarding those matters, to
execute any contracts or other instruments on behalf of the Company, and to
perform any and all other acts or activities customary or incidental to the
management of the Company's business.
5.1.3.
Examples of Manager's Authority. Without limiting the grant of
authority set forth in section 5.1.2, the Manager shall have the power to (i)
create classes of Investor Shares with such terms and conditions as the Manager
may determine in its sole discretion; (ii) issue Shares to any person for such
consideration as the Manager maybe determine in its sole discretion, and admit
such persons to the Company as Investor Members; (iii) engage the services of
third parties to perform services on behalf of the Company; (iv) enter into one
or more joint ventures; (v) purchase, lease, sell, or otherwise dispose of real
estate and other assets, in the ordinary course of business or otherwise; (vi)
enter into leases and any other contracts of any kind; (vii) incur indebtedness
on behalf of the Company, whether to banks or other lenders; (viii) determine
the amount of the Company's Available Cash and the timing and amount of
distributions to Members; (ix) determine the information to be provided to the
Members; (x) grant mortgages, liens, and other encumbrances on the Company's
assets; (xi) make all elections under the Code and the provisions of State and
local tax laws; (xiii) file a petition in bankruptcy; (xiv) discontinue the
business of the Company; and (xv) dissolve the Company.
5.1.4.
Restrictions on Members. Except as expressly provided otherwise
in this Agreement, Members who are not also the Manager shall not be entitled
to participate in the management or control of the Company, nor shall any such
Member hold himself out as having such authority. Unless authorized to do so by
the Manager, no attorney-in-fact, employee or other agent of the Company shall
have any power or authority to bind the Company in any way, to pledge its
credit or to render it liable pecuniarily for any purpose. No Member shall have
any power or authority to bind the Company unless the Member has been
authorized by the Manager in writing to act as an agent of the Company in
accordance with the previous sentence.
5.1.5.
Authorizing Resolutions. Notwithstanding the foregoing provisions
of this section 5.1, an Authorizing Resolution may limit the authority of the
Manager and/or confer voting rights on Investor Members.
5.1.6.
Reliance by Third Parties. Anyone dealing with the Company shall
be entitled to assume that the Manager and any officer authorized by the
Manager to act on behalf of and in the name of the Company has full power and
authority to encumber, sell or otherwise use in any manner any and all assets
of the Company and to enter into any contracts on behalf of the Company, and
shall be entitled to deal with the Manager or any officer as if it were the
Company's sole party in interest, both legally and beneficially. No Member
shall assert, vis-à-vis a third party, that such third party should not have
relied on the apparent authority of the Manager or any officer authorized by
the Manager to act on behalf of and in the name of the Company, nor shall
anyone dealing with the Manager or any of its officers or representatives be
obligated to investigate the authority of such person in a given instance.
5.2.
Standard of Care. The Manager shall conduct the Company's
business using its business judgment.
5.3.
Time Commitment. The Manager shall devote such time to the
business and affairs of the Company as the Manager may determine in its sole
and absolute discretion.
5.4.
Reimbursement of Formation Expenses. The Company shall reimburse
the Manager and its affiliates, without interest, for the actual out-of-pocket
expenses they incur in connection with the formation of the Company and the
Manager, the offering of Investor Shares, and the admission of investors in the
Company, including, without limitation, travel, legal, accounting, filing,
advertising, and all other expenses incurred in connection with the offer and
sale of interests in the Company.
5.5.
Compensation of Manager and its Affiliates. The Manager and its
affiliates shall be entitled to the compensation described in the Offering
Circular.
5.6.
Removal of Manager.
5.6.1.
In General. The Manager may be removed by the affirmative vote of
Investor Members holding seventy five percent (75%) of the total number of
Investor Shares then issued and outstanding (a "Super Majority Vote"),
but only if the Investor Members have "cause" to remove the Manager, as defined
in section 5.6.3 and follow the procedure set forth in section 5.6.2.
5.6.2.
Procedure.
(a) Notice
and Response. An Investor Member who wishes to remove the Manager and
believes there is "cause" for doing so within the meaning of section 5.6.3
shall notify the Manager, referencing this section 5.6 and setting forth in
detail the reasons for his, her, or its belief. Within thirty (30) days after
receiving such a notice, the Manager shall respond by acknowledging the receipt
of the notice and (i) stating that the Manager does not believe there is merit
in the Investor Member's allegations, (ii) explaining why the Manager does not
believe "cause" exists for removal, or (iii) stating that while "cause" may
exist for removal, the Manager does not believe removal would be in the best
interest in the Fund. If the Manager fails to respond, the Manager shall be
deemed to have stated that it does not believe there is merit in the Investor
Member's allegations. In the event the Investor Member communicates with any
third party concerning his request for removal, including any other Investor
Member but not including his, her, or its own legal counsel, he, she, or it
shall include a copy of the Manager's response. The failure of the Manager to
include in its response any defense, facts, or arguments shall not preclude the
Manager from including such defense, facts, or arguments in subsequent
communications or proceedings.
(b) Vote.
After following the procedure described in section 5.6.2(a), Investor Members
owning at least twenty five percent (25%) of the Investor Shares then issued
and outstanding (the "Dissident Members") may call for a vote of the
Investor Members. The Manager and a single representative chosen by the
Dissident Members shall cooperate in sending to all Investor Members a package
of materials bearing on whether "cause" exists under section 5.6.3 and whether
it is in the best interest of the Company to remove the Manager, and a vote
shall be taken by electronic means, with responses due within thirty (30) days.
The failure of the Manager or the Dissident Members to include in this package
any defense, facts, or arguments shall not preclude them from including such
defense, facts, or arguments in subsequent communications or proceedings.
(c) Arbitration.
In the event of a Super Majority Vote to remove the Manager within the thirty
(30) day period described in section 5.6.2(b), then the question as to whether
"cause" exists to remove the Manager shall be referred to a single arbitrator
in arbitration proceedings held in Wilmington, Delaware in conformance with the
then-current rules and procedures of the American Arbitration Association. The
removal of the Manager shall not become effective until the arbitrator
determines that "cause" exists; the decision of the arbitrator shall be binding
and non-appealable. In the event there is no Super Majority Vote to remove the
Manager within the thirty (30) day period described in section 5.6.2(b), then
the Manager shall not be removed and no subsequent proceeding to remove the
Manager shall be held with respect to substantially similar grounds.
5.6.3.
Cause Defined. For purposes of this section 5.6, "cause" shall be
deemed to exist if any only if:
(a) Uncured
Breach. The Manager breaches any material provision of this Agreement and
the breach continues for more than (30) days after the Manager has received
written notice, or, in the case of a breach that cannot be cured within thirty
(30) days, the Manager fails to begin curing the breach within thirty (30) days
or the breach remains uncured for ninety (90) days; or
(b) Bankrupty.
The Manager makes a general assignment for the benefit of its creditors; or is
adjudicated a bankrupt; or files a voluntary petition in bankruptcy; or files a
petition or answer seeking reorganization or an arrangement with creditors, or
to take advantage of any insolvency, readjustment of loan, dissolution or
liquidation law or statute; or an order, judgment, or decree is entered without
the Manager's consent appointing a receiver, trustee or liquidator for the
Manager; or
(c) Bad
Acts. The Manager engages in willful misconduct or acts with reckless
disregard to its obligations, in each case causing material harm to the
Company, or engages in bad faith in activities that are beneficial to itself
and cause material harm to the Company, and the individual responsible for such
actions is not terminated within thirty (30) days after the Manager becomes
aware of such actions.
5.6.4.
No Effect on Sponsor. The removal of the Manager shall not affect
the interests of the Sponsor in the Common Stock.
5.7. Removal of
Manager by Xxxxxx.
5.7.1. In
General. The Manager may, on behalf of the Company, enter into an agreement
with a lender that allows the lender to remove the Manager in the event of a
default under the loan and replace the Manager with a person designated by the
lender.
5.7.2. No
Effect on Ownership. The removal of the Manager pursuant to this section
5.7 shall not, of itself, affect the Manager's ownership of Common Shares.
6.
ARTICLE SIX: OTHER BUSINESSES; INDEMNIFICATION; CONFIDENTIALITY
6.1.
Other Businesses. Each Member and Manager may engage in any
business whatsoever, including a business that is competitive with the business
of the Company, and the other Members shall have no interest in such businesses
and no claims on account of such businesses, whether such claims arise under
the doctrine of "corporate opportunity," an alleged fiduciary obligation owed
to the Company or its members, or otherwise. Without limiting the preceding
sentence, the Members acknowledge that the Manager and/or its affiliates intend
to sponsor, manage, invest in, and otherwise be associated with other entities
and business investing in the same assets classe(es) as the Company, some of
which could be competitive with the Company. No Member shall have any claim
against the Manager or its affiliates on account of such other entities or
businesses.
6.2.
Exculpation and Indemnification
6.2.1.
Exculpation.
(a) Covered
Persons. As used in this section 6.2, the term "Covered Person"
means (i) the Manager and its affiliates, (ii) the members, managers, officers,
employees, and agents of the Manager and its affiliates, and (iii) the
officers, employees, and agents of the Company, including a Representative, each
acting within the scope of his, her, or its authority.
(b) Standard
of Care. No Covered Person shall be liable to the Company for any loss,
damage or claim incurred by reason of any action taken or omitted to be taken
by such Covered Person, including actions taken or omitted to be taken in the
good-faith business judgment of such Covered Person, so long as such action or
omission does not constitute fraud or willful misconduct by such Covered
Person.
(c) Good
Faith Reliance. A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports, or statements (including financial statements and information) of the
following persons: (i) another Covered Person; (ii) any attorney, independent
accountant, appraiser, or other expert or professional employed or engaged by
or on behalf of the Company; or (iii) any other person selected in good faith
by or on behalf of the Company, in each case as to matters that such relying
Covered Person reasonably believes to be within such other person's
professional or expert competence. The preceding sentence shall in no way limit
any person's right to rely on information to the extent provided in the Act.
6.2.2.
Liabilities and Duties of Covered Persons.
(a) Limitation
of Liability. This Agreement is not intended to, and does not, create or
impose any fiduciary duty on any Covered Person. Furthermore, each Member and
the Company hereby waives any and all fiduciary duties that, absent such
waiver, may be implied by applicable law, and in doing so, acknowledges and
agrees that the duties and obligation of each Covered Person to each other and
to the Company are only as expressly set forth in this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, are
agreed by the Members to replace such other duties and liabilities of such
Covered Person.
(b) Duties.
Whenever a Covered Person is permitted or required to make a decision, the
Covered Person shall be entitled to consider only such interests and factors as
such Covered Person desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or factors
affecting the Company or any other person. Whenever in this Agreement a Covered
Person is permitted or required to make a decision in such Covered Person's
"good faith," the Covered Person shall act under such express standard and
shall not be subject to any other or different standard imposed by this
Agreement or any other applicable law.
6.2.3.
Indemnification.
(a) Indemnification.
To the fullest extent permitted by the Act, as the same now exists or may
hereafter be amended, substituted or replaced (but, in the case of any such
amendment, substitution or replacement only to the extent that such amendment,
substitution or replacement permits the Company to provide broader
indemnification rights than the Act permitted the Company to provide prior to
such amendment, substitution or replacement), the Company shall indemnify, hold
harmless, defend, pay and reimburse any Covered Person against any and all
losses, claims, damages, judgments, fines or liabilities, including reasonable
legal fees or other expenses incurred in investigating or defending against
such losses, claims, damages, judgments, fines or liabilities, and any amounts
expended in settlement of any claims (collectively, "Losses") to which
such Covered Person may become subject by reason of any act or omission or
alleged act or omission performed or omitted to be performed by such Covered
Person on behalf of the Company in connection with the business of the Company;
provided, that (i) such Covered Person acted in good faith and in a manner
believed by such Covered Person to be in, or not opposed to, the best interests
of the Company and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful, and (ii) such Covered Person's
conduct did not constitute fraud or willful misconduct, in either case as
determined by a final, nonappealable order of a court of competent
jurisdiction. In connection with the foregoing, the termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Covered Person did not act in good faith or, with respect
to any criminal proceeding, had reasonable cause to believe that such Covered
Person's conduct was unlawful, or that the Covered Person's conduct constituted
fraud or willful misconduct.
(b)
Reimbursement. The Company shall promptly reimburse (and/or
advance to the extent reasonably required) each Covered Person for reasonable
legal or other expenses (as incurred) of such Covered Person in connection with
investigating, preparing to defend or defending any claim, lawsuit or other
proceeding relating to any Losses for which such Covered Person may be
indemnified pursuant to this section 6.2.3; provided, that if it is finally
judicially determined that such Covered Person is not entitled to the
indemnification provided by this section 6.2.3, then such Covered Person shall
promptly reimburse the Company for any reimbursed or advanced expenses.
(c) Entitlement
to Indemnity. The indemnification provided by this section 6.2.3 shall not
be deemed exclusive of any other rights to indemnification to which those
seeking indemnification may be entitled under any agreement or otherwise. The
provisions of this section 6.2.3 shall continue to afford protection to each
Covered Person regardless whether such Covered Person remains in the position
or capacity pursuant to which such Covered Person became entitled to
indemnification under this section 6.2.3 and shall inure to the benefit of the
executors, administrators, and legal representative of such Covered Person.
(d) Insurance.
To the extent available on commercially reasonable terms, the Company may
purchase, at its expense, insurance to cover Losses covered by the foregoing
indemnification provisions and to otherwise cover Losses for any breach or
alleged breach by any Covered Person of such Covered Person's duties in such
amount and with such deductibles as the Manager may determine; provided, that
the failure to obtain such insurance shall not affect the right to
indemnification of any Covered Person under the indemnification provisions
contained herein, including the right to be reimbursed or advanced expenses or
otherwise indemnified for Losses hereunder. If any Covered Person recovers any
amounts in respect of any Losses from any insurance coverage, then such Covered
Person shall, to the extent that such recovery is duplicative, reimburse the
Company for any amounts previously paid to such Covered Person by the Company
in respect of such Losses.
(e) Funding
of Indemnification Obligation. Any indemnification by the Company pursuant
to this section 6.2.3 shall be provided out of and to the extent of Company
assets only, and no Member shall have personal liability on account thereof or
shall be required to make additional capital contributions to help satisfy such
indemnification obligation.
(f)
Savings Clause. If this section 6.2.3 or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Covered Person
pursuant to this section 6.2.3 to the fullest extent permitted by any
applicable portion of this section 6.3 that shall not have been invalidated and
to the fullest extent permitted by applicable law.
6.2.4. Amendment.
The provisions of this section 6.2 shall be a contract between the Company, on
the one hand, and each Covered Person who served in such capacity at any time
while this section is in effect, on the other hand, pursuant to which the
Company and each such Covered Person intend to be legally bound. No amendment,
modification or repeal of this section that adversely affects the rights of a
Covered Person to indemnification for Losses incurred or relating to a state of
facts existing prior to such amendment, modification or repeal shall apply in
such a way as to eliminate or reduce such Covered Person's entitlement to
indemnification for such Losses without the Covered Person's prior written
consent.
6.2.5. Survival.
The provisions of this section 6.2 shall survive the dissolution, liquidation,
winding up, and termination of the Company.
6.3.
Confidentiality. For as long as he, she, or it owns an interest
in the Company and at all times thereafter, no Investor Member shall divulge to
any person or entity, or use for his or its own benefit or the benefit of any
person, any information of the Company of a confidential or proprietary nature,
including, but not limited to (i) financial information; (ii) designs,
drawings, plans, and specifications; (iii) the business methods, systems, or
practices used by the Company; and (iii) the identity of the Company's Members,
customers, or suppliers. The foregoing shall not apply to information that is
in the public domain or that an Investor Member is required to disclose by
legal process.
7.
ARTICLE SEVEN: BANK ACCOUNTS; BOOKS OF ACCOUNT
7.1.
Bank Accounts. Funds of the Company may be deposited in accounts
at banks or other institutions selected by the Manager. Withdrawals from any
such account or accounts shall be made in the Company's name upon the signature
of such persons as the Manager may designate. Funds in any such account shall
not be commingled with the funds of any Member.
7.2.
Books and Records of Account. The Company shall keep at its
principal offices books and records of account of the Company which shall
reflect a full and accurate record of each transaction of the Company.
7.3.
Annual Financial Statements and Reports. Within a reasonable
period after the close of each fiscal year, the Company shall furnish to each
Member with respect to such fiscal year (i) a statement showing in reasonable
detail the computation of the amount distributed under section 4.1, and the manner
in which it was distributed (ii) a balance sheet of the Company, (iii) a
statement of income and expenses, and (iv) such additional information as may
be required by law. The financial statements of the Company need not be audited
by an independent certified public accounting firm unless the Manager so elects
or the law so requires.
7.4.
Right of Inspection.
7.4.1.
In General. If a Member wishes additional information or to
inspect the books and records of the Company for a bona fide purpose,
the following procedure shall be followed: (i) such Member shall notify the
Manager, setting forth in reasonable detail the information requested and the
reason for the request; (ii) within sixty (60) days after such a request, the
Manager shall respond to the request by either providing the information
requested or scheduling a date (not more than 90 days after the initial
request) for the Member to inspect the Company's records; (iii) any inspection
of the Company's records shall be at the sole cost and expense of the
requesting Member; and (iv) the requesting Member shall reimburse the Company
for any reasonable costs incurred by the Company in responding to the Member's
request and making information available to the Member.
7.4.2.
Bona Fide Purpose. The Manager shall not be required to respond
to a request for information or to inspect the books and records of the Company
if the Manager believes such request is made to harass the Company or the
Manager, to seek confidential information about the Company, or for any other
purpose other than a bona fide purpose.
7.4.3.
Representative. An inspection of the Company's books and records
may be conducted by an authorized representative of a Member, provided such
authorized representative is an attorney or a licensed certified public
accountant and is reasonably satisfactory to the Manager.
7.4.4.
Restrictions. The following restrictions shall apply to any
request for information or to inspect the books and records of the Company:
(a) No
Member shall have a right to a list of the Investor Members or any information
regarding the Investor Members.
(b) Before
providing additional information or allowing a Member to inspect the Company's
records, the Manager may require such Member to execute a confidentiality
agreement satisfactory to the Manager.
(c) No
Member shall have the right to any trade secrets of the Company or any other
information the Manager deems highly sensitive and confidential.
(d) No
Member may review the books and records of the Company more than once during
any twelve (12) month period.
(e) Any
review of the Company's books and records shall be scheduled in a manner to
minimize disruption to the Company's business.
(f)
A representative of the Company may be present at any inspection of the
Company's books and records.
(g) If
more than one Member has asked to review the Company's books and records, the
Manager may require the requesting Members to consolidate their request and
appoint a single representative to conduct such review on behalf of all
requested Members.
(h) The
Manager may impose additional reasonable restrictions for the purpose of
protecting the Company and the Members.
8.
ARTICLE EIGHT: TRANSFERS OF SHARES
8.1.1.
In General. Except as provided in section 8.1.2, section 8.1.3 or
the terms of an Authorizing Resolution, Investor Shares may generally be
transferred without the consent of the Company or the Manager.
8.1.2.
First Right of Refusal.
(a) In
General. In the event an Investor Member (the "Selling Member")
receives an offer from a third party to acquire all or a portion of his, her,
or its Investor Shares (the "Transfer Shares"), then he, she, or it
shall notify the Manager, specifying the Investor Shares to be purchased, the
purchase price, the approximate closing date, the form of consideration, and
such other terms and conditions of the proposed transaction that have been agreed
with the proposed purchaser (the "Sales Notice"). Within thirty (30) days
after receipt of the Sales Notice the Manager shall notify the Selling Member
whether the Manager (or a person designated by the Manager) elects to purchase
the entire Transfer Shares on the terms set forth in the Sales Notice.
(b) Special
Rules. The following rules shall apply for purposes of this section:
(1)
If the Manager elects not to purchase the Transfer Shares, or fails to
respond to the Sales Notice within the thirty (30) day period described above,
the Selling Member may proceed with the sale to the proposed purchaser, subject
to section 8.1.2.
(2)
If the Manager elects to purchase the Transfer Shares, it shall do so
within thirty (30) days.
(3)
If the Manager elects not to purchase the Transfer Shares, or fails to
respond to the Sales Notice within the thirty (30) day period described above,
and the Selling Member and the purchaser subsequently agree to a reduction of
the purchase price, a change in the consideration from cash or readily
tradeable securities to deferred payment obligations or nontradeable
securities, or any other material change to the terms set forth in the Sales
Notice, such agreement between the Selling Member and the purchaser shall be
treated as a new offer and shall again be subject to this section.
(4)
If the Manager elects to purchase the Transfer Shares in accordance with
this section, such election shall have the same binding effect as the
then-current agreement between the Selling Member and the proposed purchaser.
Thus, for example, if the Selling Member and the purchaser have entered into a
non-binding letter of intent but have not entered into a binding definitive
agreement, the election of the Manager shall have the effect of a non-binding
letter of intent with the Selling Member. Conversely, if the Selling Member and
the purchaser have entered into a binding definitive agreement, the election of
the Manager shall have the effect of a binding definitive agreement. If the
Selling Member and the Manager are deemed by this subsection to have entered
into only a non-binding letter of intent, neither shall be bound to consummate
a transaction if they are unable to agree to the terms of a binding agreement.
8.1.3.
Conditions of Transfer. A transfer of Investor Shares shall be
effective only if:
(a) The
transferor has notified the Manager of the proposed transfer at least thirty
(30) business days in advance, describing the terms and conditions of the
proposed transfer and any other information reasonably requested by the Manager;
(b) The
transferee has executed a copy of this Agreement, agreeing to be bound by all
of its terms and conditions;
(c) A
fully executed and acknowledged written transfer agreement between the
Transferor and the transferee has been filed with the Company;
(d) All
costs and expenses incurred by the Company in connection with the transfer are
paid by the transferor to the Company, without regard to whether the proposed
transfer is consummated; and
8.1.4.
Admission of Transferee. Any permitted transferee of Shares shall
be admitted to the Company as a Member on the date agreed by the transferor,
the transferee, and the Manager.
8.1.5.
Exempt Transfers. The following transactions shall be exempt from
the provisions of section 8.1:
(a) A
transfer to or for the benefit of any spouse, child or grandchild of an
Investor Member, or to a trust for their exclusive benefit;
(b) Any
transfer pursuant to an effective registration statement filed by the Company
under the Securities Act of 1933, as amended; and
(c) The
sale of all or substantially all of the interests of the Company (including
pursuant to a merger or consolidation);
provided, however, that in the case
of a transfer pursuant to section 8.1.5(a), (i) the transferred Shares shall
remain subject to this Agreement, (ii) the transferee shall, as a condition to
such transfer, deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement,
and (iii) the transferred Shares shall not thereafter be transferred further in
reliance on section 8.1.5(a).
8.1.6.
Application to Certain Entities. In the case of an Investor
Member that is a Special Purpose Entity, the restrictions set forth in section
8.1 shall apply to indirect transfers of interests in the Company by transfers
of interests in such entity (whether by transfer of an existing interest or the
issuance of new interests), as well as to direct transfers. A "Special
Purpose Entity" means (i) an entity formed or availed of principally for
the purpose of acquiring or holding an interest in the Company, and (ii) any
entity if the purchase price of its interest in the Company represents at least
seventy percent (70%) of its capital.
8.1.7.
Other Transfers Void. Transfers in contravention of this section
shall be null, void and of no force or effect whatsoever, and the Members agree
that any such transfer may and should be enjoined.
8.2.
Death, Insolvency, Etc. Neither the death, disability,
bankruptcy, or insolvency of a Member, nor the occurrence of any other
voluntary or involuntary event with respect to a Member, shall give the Company
or any Member the right to purchase such Member's Shares, nor give the Member
himself (or his heirs, assigns, or representatives) the right to sell such
Shares to the Company or any other Member. Instead, such Member or his heirs,
assigns, or legal representatives shall remain a Member subject to the terms
and conditions of this Agreement.
8.3.
Incorporation. If the Manager determines that the business of the
Company should be conducted in a corporation rather than in a limited liability
company, whether for tax or other reasons, each Member shall cooperate in
transferring the business to a newly-formed corporation and shall execute such
agreements as the Manager may reasonably determine are necessary or
appropriate, consistent with the terms of the this Agreement. In such event
each Member shall receive stock in the newly-formed corporation equivalent to his
or its Shares.
8.4.
Drag-Along Right. In the event the Manager approves a sale or
other disposition of all of the interests in the Company, then, upon notice of
the sale or other disposition, each Member shall execute such documents or
instruments as may be requested by the Manager to effectuate such sale or other
disposition and shall otherwise cooperate with the Manager. The following rules
shall apply to any such sale or other disposition: (i) each Investor Member
shall represent that he, she, or it owns his or its Shares free and clear of
all liens and other encumbrances, that he, she, or it has the power to enter
into the transaction, and whether he, she, or it is a U.S. person, but shall
not be required to make any other representations or warranties; (ii) each
Investor Member shall grant to the Manager a power of attorney to act on behalf
of such Investor Member in connection with such sale or other disposition; and
(iii) each Investor Member shall receive, as consideration for such sale or
other disposition, the same amount he, she, or it would have received had all
or substantially all of the assets of the Company been sold and the net
proceeds distributed in liquidation of the Company.
8.5.
Waiver of Appraisal Rights. Each Member hereby waives any
contractual appraisal rights such Member may otherwise have pursuant to 6 Del.
C. §18-210 or otherwise, as well as any "dissenter's rights."
8.6.
Mandatory Redemptions.
8.6.1.
Based on ERISA Considerations. The Manager may, at any time,
cause the Company to purchase all or any portion of the Investor Shares owned
by a Member whose assets are governed by Title I of the Employee Retirement
Income Security Act of 1974, Code section 4975, or any similar Federal, State,
or local law, if the Manager determines that all or any portion of the assets
of the Company would, in the absence of such purchase, more likely than not be
treated as "plan assets" or otherwise become subject to such laws.
8.6.2.
Based on Other Bona Fide Business Reasons. The Manager may, at
any time, cause the Company to purchase all of the Investor Shares owned by a
Member if the Manager determines that (i) such Member made a material
misrepresentation to the Company; (ii) legal or regulatory proceedings are
commenced or threatened against the Company or any of its members arising from
or relating to the Member's interest in the Company; (iii) the Manager believes
that such Member's ownership has caused or will cause the Company to violate
any law or regulation; (iv) such Member has violated any of his, her, or its
obligations to the Company or to the other Members; or (ii) such Member is engaged
in, or has engaged in conduct (including but not limited to criminal conduct)
that (A) brings the Company, or threatens to bring the Company, into disrepute,
or (B) is adverse and fundamentally unfair to the interests of the Company or
the other Members.
(a) Purchase Price and Payment. Unless otherwise agreed in writing between the selling
Investor Member and the Company, the price of Class A Investor Shares purchased
and sold pursuant to this section 8.6 shall be ninety percent (90%) of the
then-current value of such Class A Investor Shares as determined by the Company
in accordance with its financial model. The purchase price shall be paid by
wire transfer or other immediately available funds at closing, which shall be
held within sixty (60) days following written notice from the Manager.
8.7.
Withdrawal. An Investor Member may withdraw from the Company by
giving at least ninety (90) days notice to the Manager. The withdrawing
Investor Member shall be entitled to no distributions or payments from Company
on account of his, her, or its withdrawal, nor shall he, she, or it be
indemnified against liabilities of Company. For purposes of this section, an
Investor Member who transfers a Class A Interest pursuant to (i) a transfer
permitted under section 8.1, or (ii) an involuntary transfer by operation of
law, shall not be treated as thereby withdrawing from Company.
8.8.
Pledge of Common and/or Investor Shares by Manager. The Manager
may (but shall not be required to) pledge all or any portion of its Common
and/or Investor Shares as security for a loan made to the Company, and transfer
such Common and/or Investor Shares to the lender in the event of a default
under the loan.
9.
ARTICLE NINE: DISSOLUTION AND LIQUIDATION
9.1.
Dissolution. The Company shall be dissolved upon the first to
occur of the following:
9.1.1.
Within twelve (12) months following the sale of all or substantially all
of the assets of the Company; or
9.1.2.
The entry of a decree of a judicial dissolution pursuant to the Act.
9.2.
Liquidation.
9.2.1.
Generally. If the Company is dissolved, the Company's assets
shall be liquidated and no further business shall be conducted by the Company
except for such action as shall be necessary to wind-up its affairs and
distribute its assets to the Members pursuant to the provisions of this Article
Nine. Upon such dissolution, the Manager shall have full authority to wind-up
the affairs of the Company and to make final distribution as provided herein.
9.2.2.
Distribution of Assets. After liquidation of the Company, the
assets of the Company shall be distributed as set forth in Article Two.
9.2.3.
Distributions In Kind. The assets of the Company shall be
liquidated as promptly as possible so as to permit distributions in cash, but
such liquidation shall be made in an orderly manner so as to avoid undue losses
attendant upon liquidation. In the event that in the Manager' opinion complete
liquidation of the assets of the Company within a reasonable period of time
proves impractical, assets of the Company other than cash may be distributed to
the Members in kind but only after all cash and cash-equivalents have first
been distributed and after the Pre-Distribution Adjustment.
9.2.4.
Statement of Account. Each Member shall be furnished with a
statement prepared by the Company's accountants, which shall set forth the
assets and liabilities of the Company as of the date of complete liquidation,
and the capital account of each Member immediately prior to any distribution in
liquidation.
10. ARTICLE
TEN: POWER OF ATTORNEY
10.1. In
General. The Manager shall at all times during the term of the Company have
a special and limited power of attorney as the attorney-in-fact for each
Investor Member, with power and authority to act in the name and on behalf of
each such Investor Member, to execute, acknowledge, and swear to in the
execution, acknowledgement and filing of documents which are not inconsistent
with the provisions of this Agreement and which may include, by way of
illustration but not by limitation, the following:
10.1.1. This
Agreement and any amendment of this Agreement authorized under section 11.1;
10.1.2. Any
other instrument or document that may be required to be filed by the Company
under the laws of any state or by any governmental agency or which the Manager
shall deem it advisable to file;
10.1.3. Any
instrument or document that may be required to effect the continuation of the
Company, the admission of new Members, or the dissolution and termination of
the Company; and
10.1.4. Any
and all other instruments as the Manager may deem necessary or desirable to
effect the purposes of this Agreement and carry out fully its provisions.
10.2. Terms
of Power of Attorney. The special and limited power of attorney of the
Manager (i) is a special power of attorney coupled with the interest of the
Manager in the Company, and its assets, is irrevocable, shall survive the
death, incapacity, termination or dissolution of the granting Investor Member,
and is limited to those matters herein set forth; (ii) may be exercised by the
Manger by and through one or more of the officers of the Manager for each of
the Investor Members by the signature of the Manager acting as attorney-in-fact
for all of the Investor Members, together with a list of all Investor Members
executing such instrument by their attorney-in-fact or by such other method as
may be required or requested in connection with the recording or filing of any
instrument or other document so executed; and (iii) shall survive an assignment
by an Investor Member of all or any portion of his, her or its Investor Shares
except that, where the assignee of the Investor Shares owned by the Investor
Member has been approved by the Manager for admission to the Company, the
special power of attorney shall survive such assignment for the sole purpose of
enabling the Manager to execute, acknowledge and file any instrument or
document necessary to effect such substitution.
10.3. Notice
to Investor Members. The Manager shall promptly furnish to each Investor
Member a copy of any amendment to this Agreement executed by the Manger
pursuant to a power of attorney from such Investor Member.
11. ARTICLE
ELEVEN: AMENDMENTS
11.1. Amendments
Not Requiring Consent. The Manager may amend this Agreement without the
consent of any Member to effect:
11.1.1. The
correction of typographical errors;
11.1.2. A
change in the name of the Company, the location of the principal place of
business of the Company, the registered agent of the Company or the registered
office of the Company;
11.1.3. The
admission, substitution, withdrawal, or removal of Members in accordance with
this Agreement;
11.1.4. An amendment that cures ambiguities or inconsistencies in
this Agreement;
11.1.5. An
amendment that adds to its own obligations or responsibilities;
11.1.6. A
change in the fiscal year or taxable year of the Company and any other changes
that the Manager determines to be necessary or appropriate as a result of a
change in the fiscal year or taxable year of the Company;
11.1.7. A
change the Manager determines to be necessary or appropriate to prevent the
Company from being treated as an "investment company" within the meaning of the
Investment Company Act of 1940;
11.1.8. A
change to facilitate the trading of Shares, including changes required by law
or by the rules of a securities exchange;
11.1.9. A
change the Manager determines to be necessary or appropriate to satisfy any
requirements or guidelines contained in any opinion, directive, order, ruling,
or regulation of any federal or state agency or judicial authority or contained
in any Federal or State statute, including but not limited to "no-action
letters" issued by the Securities and Exchange Commission;
11.1.10. A change that the
Manager determines to be necessary or appropriate to prevent the Company from
being subject to the Employee Retirement Income Security Act of 1974;
11.1.11. A change the Manager
determines to be necessary or appropriate to reflect an investment by the
Company in any corporation, partnership, joint venture, limited liability
company or other entity;
11.1.12. An amendment that
conforms to the Offering Circular;
11.1.13. Any amendments
expressly permitted in this Agreement to be made by the Manager acting alone;
or
11.1.14. Any other amendment that does not have, and could not
reasonably be expected to have, a material adverse effect on the Investor
Members.
11.2. Amendments
Requiring Majority Consent. Any amendment that has, or could reasonably be
expected to have, an adverse effect on the Investor Members, other than
amendments described in section 11.3, shall require the consent of the Manager
and Investor Members holding a majority of the Investor Shares or, if an
amendment affects only one class of Investor Shares, then the Investor Members
holding a majority of the Investor Shares of that Series.
11.3. Amendments
Requiring Unanimous Consent. The following amendments shall require the
consent of the Manager and each affected Member:
11.3.1. An
amendment deleting or modifying any of the amendments already listed in this
section 11.3;
11.3.2. An
amendment that would require any Investor Member to make additional Capital
Contributions; and
11.3.3. An
amendment that would impose personal liability on any Investor Member.
11.4. Procedure
for Obtaining Consent. If the Manager proposes to make an amendment to this
Agreement that requires the consent of Investor Members, the Manager shall
notify each affected Investor Member (who may be all Investor Members, or only
Investor Members holding a given class of Investor Shares) in writing,
specifying the proposed amendment and the reason(s) why the Manager believe the
amendment is in the best interest of the Company. At the written request of
Investor Members holding at least Twenty Percent (20%) of the Investor Shares entitled
to vote on the amendment, the Manager shall hold an in-person or electronic
meeting (e.g., a webinar) to explain and discuss the amendment. Voting
may be through paper or electronic ballots. If the Manager proposes an
amendment that is not approved by the Investor Members within ninety (90) days
from proposal, the Manager shall not again propose that amendment for at least
six (6) months.
12. ARTICLE
TWELVE: MISCELLANEOUS
12.1. Notices.
Any notice or document required or permitted to be given under this Agreement
may be given by a party or by its legal counsel and shall be deemed to be given
by electronic mail with transmission acknowledgment, to the principal business
address of the Company, if to the Company or the Manager, to the email address
of an Investor Member provided by such Investor Member, or such other address
or addresses as the parties may designate from time to time by notice
satisfactory under this section.
12.2. Electronic
Delivery. Each Member hereby agrees that all communications with the
Company, including all tax forms, shall be via electronic delivery.
12.3. Governing
Law.
12.3.1. In General. This
Agreement shall be governed by the internal laws of Delaware without giving
effect to the principles of conflicts of laws. Each Member hereby (i) consents
to the personal jurisdiction of the Delaware courts or the Federal courts
located in or most geographically convenient to Wilmington, Delaware, (ii)
agrees that all disputes arising from this Agreement shall be prosecuted in
such courts, except as provided in section 5.6.2, (iii) agrees that any such
court shall have in personam jurisdiction over such Member, (iv) consents to
service of process by notice sent by regular mail to the address on file with
the Company and/or by any means authorized by Delaware law, and (v) if such Member
is not otherwise subject to service of process in Delaware, agrees to appoint
and maintain an agent in Delaware to accept service, and to notify the Company
of the name and address of such agent.
12.3.2. Exception. The exclusive forum selection provisions in section
12.3.1 shall not apply to the extent prohibited by the Securities Act of 1933
or the Securities Exchange Act of 1934.
12.4. Waiver
of Jury Trial. EACH MEMBER ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES AND, THEREFORE, EACH MEMBER IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT. However, the foregoing waiver of
trial by jury does not apply to claims arising under the Federal securities
laws.
12.5. Signatures.
This Agreement may be signed (i) in counterparts, each of which shall be deemed
to be a fully-executed original; and (ii) electronically, e.g., via
DocuSign. An original signature transmitted by facsimile or email shall be
deemed to be original for purposes of this Agreement.
12.6. No
Third Party Beneficiaries. Except as otherwise specifically provided in
this Agreement, this Agreement is made for the sole benefit of the parties. No
other persons shall have any rights or remedies by reason of this Agreement
against any of the parties or shall be considered to be third party
beneficiaries of this Agreement in any way.
12.7. Binding
Effect. This Agreement shall inure to the benefit of the respective heirs,
legal representatives and permitted assigns of each party, and shall be binding
upon the heirs, legal representatives, successors and assigns of each party.
12.8. Titles
and Captions. All article, section and paragraph titles and captions
contained in this Agreement are for convenience only and are not deemed a part
of the context hereof.
12.9. Pronouns
and Plurals. All pronouns and any variations thereof are deemed to refer to
the masculine, feminine, neuter, singular or plural as the identity of the
person or persons may require.
12.10. Execution by
Investor Members. It is anticipated that this Agreement will be executed by
Investor Members through the execution of a separate Investment Agreement.
12.11. Legal
Representation. The Company and the Manager have been represented by Lex
Nova Law LLC in connection with the preparation of this Agreement. Each
Investor Member (i) represents that such Member has not been represented by Lex
Nova Law LLC in connection with the preparation of this Agreement, (ii) agrees
that Lex Nova Law LLC may represent the Company and/or the Manager in the event
of a dispute involving such Investor Member, and (iii) acknowledges that such
Investor Member has been advised to seek separate counsel in connection with
this Agreement.
12.12. Days. Any
period of days mandated under this Agreement shall be determined by reference
to calendar days, not business days, except that any payments, notices, or
other performance falling due on a Saturday, Sunday, or federal government
holiday shall be considered timely if paid, given, or performed on the next
succeeding business day.
12.13. Relationship to
Investment Agreement. In the case of an Investor Member, this Agreement
governs such Investor Member's ownership of Investor Shares and the operation
of the Company, while the Investment Agreement governs such Investor Member's purchase
of Investor Shares. In the event of a conflict between the two agreements, this
Agreement shall control.
12.14. Entire Agreement.
This Agreement constitutes the entire agreement among the parties with respect
to its subject matter and supersedes all prior agreements and understandings.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
By: Energea
Global, LLC
As
Manager
By _______________________________
Xxxxxxx
Xxxxxxxxxxx, Manager
By _______________________________
Xxxxx
Xxxxxxx, Manager
ENERGEA
GLOBAL LLC
By _______________________________
Xxxxxxx
Xxxxxxxxxxx, Manager
By _______________________________
Xxxxx
Xxxxxxx, Manager
ANNEX I
CERTIFICATE OF
MEMBERSHIP INTEREST IN
THIS CERTIFICATE HAS NOT BEEN REGISTERED AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933. AS AMENDED, OR UNDER THE SECURITIES OR BLUE SKY
LAWS OF ANY STATE. THE HOLDER OF THIS CERTIFICATE, BY ITS ACCEPTANCE HEREOF,
REPRESENTS THAT IT IS ACQUIRING THIS SECURITY FOR INVESTMENT AND NOT WITH A
VIEW TO ANY SALE OR DISTRIBUTION HEREOF. ANY TRANSFER OF THIS CERTIFICATE OR
ANY LIMITED LIABILITY COMPANY INTEREST REPRESENTED HEREBY IS SUBJECT TO THE
TERMS AND CONDITIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT (AS DEFINED
BELOW). A COPY OF SUCH AGREEMENT WILL BE FURNISHED BY THE COMPANY TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY
AT ITS PRINCIPAL PLACE OF BUSINESS.
Certificate Number [_]
Energea
Portfolio 2 LLC, a Delaware limited liability company (the "Company"),
hereby certifies that [________] (together
with any permitted assignee of this Certificate, the "Holder")
is the registered owner of [____] Common Shares and [_____] Investor
Shares of the limited liability company interests in the Company. The rights,
powers, preferences, restrictions and limitations of the limited liability
company interests in the Company are set forth in, and this Certificate and the
limited liability company interests in the Company represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Operating Agreement of the Company made and entered into as of January 13th,
2020, as the same may be amended or restated from time to time (the "Limited
Liability Company Agreement"). By acceptance of this Certificate, and
as a condition to being entitled to any rights and/or benefits with respect to
the limited liability company interests evidenced hereby, the Holder is deemed to
have agreed to comply with and be bound by all the terms and conditions of the
Limited Liability Company Agreement. The Company will furnish a copy of
the Limited Liability Company Agreement to the Holder without charge upon
written request to the Company at its principal place of business. Transfer of
any or all of the limited liability company interests in the Company evidenced
by this Certificate is subject to certain restrictions in the Limited Liability
Company Agreement and can be effected only after compliance with all of those
restrictions and the presentation to the Company of the Certificate. The
Company maintains books for the purpose of registering the transfer of limited
liability company interests.
Each
limited liability company interest in the Company shall constitute a
"security" within the meaning of, and governed by, (i) Article 8 of
the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in
effect from time to time in the State of Delaware, and (ii) Article 8 of the
Uniform Commercial Code of any other applicable jurisdiction that now or
hereafter substantially includes the 1994 revisions to Article 8 thereof as
adopted by the American Law Institute and the National Conference of Commissioners
on Uniform State Laws and approved by the American Bar Association on February
14, 1995.
This
Certificate and the limited liability company interests evidenced hereby shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to principals of conflicts of law.
IN WITNESS WHEREOF, the Company has caused
this Certificate to be executed as of the date set forth below.
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Dated:
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By: ________________
Name:
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