LIMITED LIABILITY COMPANY AGREEMENT OF MEMORIAL PRODUCTION PARTNERS GP LLC
Exhibit 3.5
THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated effective as of April 27,
2011, is made by and among Memorial Production Partners GP LLC, a Delaware limited liability
company, and the entity listed below as the sole member of the Company.
1. Formation. Memorial Production Partners GP LLC (the “Company”) was formed as of April 27,
2011 as a Delaware limited liability company under and pursuant to the Delaware Limited Liability
Company Act, as amended (the “Act”).
2. Term. The Company shall have a perpetual existence.
3. Purposes; Powers. The purposes of the Company are to carry on any lawful business, purpose
or activity for which limited liability companies may be formed under the Act. The Company shall
have all of the powers to conduct such business as permitted under the Act.
4. Member. Memorial Resource Development LLC, a Delaware limited liability company, is the
sole member of the Company (the “Member”).
5. Allocation of Profits and Losses. The Member shall receive the allocation of all profits,
losses, gains, deductions and credits with respect to the operations of the Company.
6. Contributions. Without creating any rights in favor of any third party, the Member may,
from time to time, make contributions of cash or property to the capital of the Company, but shall
have no obligation to do so.
7. Distributions. The Member shall be entitled (a) to receive all distributions (including,
without limitation, liquidating distributions) made by the Company and (b) to enjoy all other
rights, benefits and interests in the Company.
8. Management.
(a) Except as otherwise expressly provided in this Agreement, all authority of the
Company shall be vested in, and all decisions relating to the management and business
affairs of the Company shall be made by, the Board of Directors of the Company (the
“Board”). The Board shall initially be composed of two members (the “Directors”) — ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇. The Directors, and any other appointed Director, shall be
designated as the “managers” of the Company within the meaning of the Act. In addition to
the powers that now or hereafter can be granted to managers under the Act and to all other
powers granted under any other provision of this Agreement, the Board shall have full power
and authority to do, and to direct the officers to do, all things on such terms as it
determines to be necessary or appropriate to conduct the business of the Company. The Board
may from time to time delegate to one or more persons such authority as the Board may deem
advisable and may elect one or more persons as a president, vice president, secretary,
treasurer or any other title of an officer
of the company as determined by the Board to act on behalf of the Company with respect
to any matter or matters delegated to such person by the Board. No officer need be a
resident of the State of Delaware. In the event the Board appoints a person as an officer of
the Company, the Board shall be deemed to have assigned and may thereafter assign titles to
particular officers. Unless the Board decides otherwise, all officers of the Company, as
between themselves and the Company, shall have such authority, perform such duties and
manage the Company as provided below.
(i) President. The President shall have responsibility for the active, executive
management of the operations of the Company, subject however to the control of the Board.
The President shall, in general, perform all duties incident to the office of president
and such other duties as from time to time may be assigned to him or her by the Board.
(ii) Vice President. Any Vice President shall have such powers and perform such
duties as the Board may from time to time prescribe or as the President may from time to
time delegate to him or her. At the request of the President, the Vice President may
temporarily act in place of the President. In the case of the death, absence, or
inability to act of the President, the Board may designate the Vice President to perform
the duties of the President.
(iii) The Secretary. The Secretary shall keep or cause to be kept the minutes of any
Company meetings; shall see that all notices are duly given in accordance with the
provisions of applicable law; shall be custodian of the records and, in general, shall
perform all duties incident to the office of the secretary and such other duties as may
from time to time be assigned by the Board or by the President.
(iv) Treasurer. The Treasurer shall be the principal financial officer of the
Company; shall have charge and custody of and be responsible for all funds of the Company
and deposit all such funds in the name of the Company in such banks, trust companies or
other depositories as shall be selected by the Board; shall receive and give receipts for
moneys due and payable to the Company from any source; and, in general, shall perform all
the duties incident to the office of treasurer and such other duties as from time to time
may be assigned by the Board or by the President. The Treasurer shall render to the
President and the Board, whenever the same shall be required, an account of all
transactions accomplished as treasurers and of the financial condition of the Company.
(b) Each Director shall hold office until his successor is duly elected or until his
removal, death or resignation. Any Director may be removed from the Board, with or without
cause, by the Member.
9.
Meeting of the Board; Written Consents.
(a) Meetings of the Board shall be held at the
principal executive office of the Company or at any place, within or without the State of
Delaware, and at such date
and time as the Board may from time to time elect, for the transaction of any business
authorized to be transacted by the Board.
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(b) Regular meetings of the Board shall be held at such times and places as may be
fixed from time to time by resolution adopted by the Board and communicated to all
Directors. Except as otherwise provided by statute, the Certificate, or this Agreement, any
and all business may be transacted at any regular meeting. Except as may be otherwise
expressly provided by statute, the certificate of formation (the “Certificate”) or this
Agreement, neither the business to be transacted at, nor the purpose of, any regular meeting
of the Board need be specified in the notice or waiver of notice of such meeting.
(c) Special meetings of the Board may be called by any Board member. The Person(s)
calling a special meeting may designate any place, either within or outside the State of
Delaware, as the place of special meeting. If no designation is made, the place of meeting
shall be the principal executive office of the Company. Except as may be otherwise
expressly provided by statute, the Certificate or this Agreement, neither the business to be
transacted at, nor the purpose of, any special meeting of the Board need be specified in the
notice or waiver of notice of such meeting.
(d) Any and all Board members may participate in an annual or special meeting by the
use of any means of communication by which all Board members participating may
simultaneously speak to and hear each other during the meeting. A Board member
participating in a meeting by this means is deemed to be present in person at the meeting.
(e) All of the outstanding Board members represented in person or by telephone or other
electronic communication shall constitute a quorum at any meeting of the Board. If a quorum
shall not be present at any meeting of the Board, the Directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
(f) Notice of the place, day and hour of any meeting shall be given not less than five
business days before the date of the meeting, in the case of any regular meeting, and 48
hours before the date of the meeting, in the case of any special meeting. Any such notice
may be delivered to each Director either personally or by facsimile, electronic transmission
(including email) or overnight courier. When notice is required to be given to any Board
member, a waiver thereof in writing signed by the Person entitled to such notice, whether
before, at or after the time stated therein, shall be equivalent to the giving of such
notice.
(g) The unanimous vote of the Board members shall be the act of the Board, unless the
vote of a greater or lesser proportion or number is otherwise required by the Act, by the
Certificate or by this Agreement.
(h) All actions with respect to the Company may be taken without a meeting of the
Board; provided, however, that any such action is evidenced by one or more
written consents describing the action taken, signed by all of the Directors and
delivered to the Company for filing with the Company records.
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(i) The Board shall have the power to appoint any committees as it may deem advisable
and may delegate such authority to such committees as is not inconsistent with the Act. The
members of such committees shall serve at the pleasure of the Board.
(j) The compensation of the members of the Board shall be fixed from time to time by
the Board, and no Board member shall be prevented from receiving such compensation by reason
of the fact that he is also a Member.
10. Tax Matters. The Company and the Member shall comply with all requirements of the
Internal Revenue Code of 1986, as amended, with respect to the Company. In this regard, the
Company shall be disregarded as an entity separate from the Member for federal tax purposes as
provided in Treasury Regulations Section 301.7701-3.
11. Indemnification. To the extent allowed under the laws of the State of Delaware, the
Company shall indemnify the Member, the Directors, officers and managers (individually,
“Indemnitee”) from and against any and all losses, claims, damages, liabilities, joint or several,
expenses (including reasonable legal fees and expenses), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, that relate to the operations of the Company as set forth in this
Agreement in which such Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, REGARDLESS OF WHETHER ARISING FROM ANY ACT OR OMISSION WHICH CONSTITUTED THE SOLE,
PARTIAL OR CONCURRENT NEGLIGENCE (WHETHER ACTIVE OR PASSIVE) OF SUCH INDEMNITEE, unless it is
established that: (a) the act or omission of such Indemnitee was material to the matter giving
rise to the proceeding and either was committed in bad faith or was the result of active and
deliberate dishonesty; (b) such Indemnitee did not reasonably believe that it was acting in the
best interests of the Company; (c) such Indemnitee actually received an improper personal benefit
in money, property or services; or (d) in the case of any criminal proceeding, such Indemnitee had
reasonable cause to believe that the act or omission was unlawful. The termination of any
proceeding by judgment, order or settlement does not create a presumption that such Indemnitee did
not meet the requisite standard of conduct set forth in this Section 11. The termination of any
proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an
order of probation prior to judgment, creates a rebuttable presumption that such Indemnitee acted
in a manner contrary to that specified in this Section 11. Any indemnification pursuant to this
Section 11 shall be made only out of the assets of the Company, including insurance proceeds, if
any.
12. Transfers. The Member may freely transfer all or any part of its membership interest in
the Company at any time. Any such transferee shall become an additional or substituted member of
the Company, as applicable, with full rights of a member as set forth herein and in the Act.
13. Dissolution. The Company shall dissolve and its affairs shall be wound up at such time,
if any, as the Member may elect or as may be required under the Act. No other event will cause the
Company to dissolve.
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14. Amendment. This Agreement may be amended, supplemented or restated at any time by and
with the consent of the Member.
15. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE (EXCLUDING ITS CONFLICT-OF-LAWS RULES).
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement as of the day
and year first above written.
| SOLE MEMBER MEMORIAL RESOURCE DEVELOPMENT LLC |
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | President and Chief Executive Officer | |||
LIMITED LIABILITY COMPANY AGREEMENT OF MEMORIAL PRODUCTION PARTNERS GP LLC
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