HomeMy WebLinkAboutRES 021125-5.D -ETJ Disannexation, Team KAM Enterprises, Ltd, 2.52 acresRESOLUTION NO. D2 11 &- 6 -IL")
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS ("GEORGETOWN") RELEASING
APPROXIMATELY 2.252 ACRES OF LAND FROM THE CITY OF
GEORGETOWN'S EXTRATERRITORIAL JURISDICTION ("ETJ"),
SAID LAND IDENTIFIED BY THE WILLIAMSON COUNTY APPRAISAL
DISTRICT AS PARCEL R040601 AND BEING LOCALLY KNOWN AS
101 BERRY LANE, GEORGETOWN, WILLIAMSON COUNTY,
TEXAS, RESULTING IN A REDUCTION OF GEORGETOWN'S ETJ;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on January 27, 2025, the City of Georgetown, Texas, received a petition requesting
release from its ETJ of an approximately 2.252 acre tract of land in the Woodruff Stubblefield Survey
(the "Petition"), a true and correct copy of such Petition being attached hereto as Exhibit A and
incorporated herein by reference; and
WHEREAS, pursuant to Subchapter D of Chapter 42 of Local Government Code, landowners or
residents may submit a petition seeking release of an area of land from the City's ETJ; and
WHEREAS, the City Secretary has reviewed the Petition and confirmed that it meets the
requirements of Subchapter D of Chapter 42 of the Local Government Code and the petition
requirements of Chapter 277 of the Election Code.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS:
SECTION 1. The City Council of the City of Georgetown, Texas ("City Council"), does hereby
find that the forgoing recitals are true and correct and adopts the recitals by this reference for all
purposes.
SECTION 2. To the extent required by state law, the City Council does hereby adjust the
boundaries and limits of the ETJ of the City of Georgetown, Texas, such that the ETJ of the City
of Georgetown, Texas, shall be and is hereby adjusted to release and remove the Area subject to
the Petition, as such Area is more particularly described and depicted in Exhibit B attached hereto
and incorporated herein by reference, from the ETJ of the City of Georgetown, Texas.
SECTION 3. The City Council is not consenting to this reduction of its ETJ except as required
by state law.
SECTION 4. This Resolution shall take effect immediately upon its passage.
Page 11
Resolution No. 0 Z 11 Zt; - 5.
Release of Petition Area — Team KAM Enterprises, Ltd
PASSED AND APPROVED by the City Council of the City of Georgetown, Texas, on the
I I-JIN, dayof , 2025.
CITY OFjCEORGETOWN, TEXAS
Mayor
ATTEST:
By:
Robyn Densm re, City Secretary
APPROVED AS TO FORM:
By:
Skye Masson, Ci Attorney
Page 12
Resolution No. 021 1 Z5 -5. D
Release of Petition Area — Team KAM Enterprises, Ltd
Exhibit A
Petition
Resolution No.
Release of Petition Area
BRANSCOMB LAW
Olivia Stephens
ostephens@branscomblaw, com
(210) 598-5366
January 13, 2025
City Secretary c/o
Georgetown City Hall
808 Martin Luther King Jr. Street
Georgetown, TX 78626
Re: ETJ Removal
Dear Robyn:
Enclosed please find the Landowner's Petition for Release from the City of Georgetown's
Extraterritorial Jurisdiction, which is being submitted in accordance with Texas Local
Government Code Sections 42.102(a) and 42.104(d) and other applicable law. Upon review of
the materials, please do not hesitate to reach out to us with any questions or requests for
additional information.
Sincerely yours,
a�
Olivia Stephens
Paralegal to Aaron Barton
4630 N. Loop 1604 West, Suite 206 1 San Antonio, TX 78249 1 210-598.5400 1�«�;.lu:.u�sr ipl+l:pv.rpni
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2023028145 Page 3 of 7
Exhibit "A"
Property Description
Tract One:
BEING 2.252 ACRES OUT OF THE WOODRUFF STUBBLEFIELD SURVEY ABSTRACT NO.
556 IN WILLIAMSON COUNTY, TEXAS, AND BEING THAT SAME TRACT OF LAND
CONVEYED TO ROGER E. CALUETTE AND PATTI ANN MCCUE IN VOLUME 1041, PAGE
151 OF THE WILLIAMSON COUNTY OFFICIAL RECORDS, SAID TRACT OF LAND BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH REBAR FOUND AT THE SOUTHEAST CORNER OF SAID
CALUETTE AND MCCUE TRACT OF LAND, BEING ALSO THE NORTHEAST CORNER OF
THAT CERTAIN 2.25 ACRE TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS
INTERNATIONAL, INC. IN VOLUME 1155, PAGE 771 OF THE WILLIAMSON COUNTY
OFFICIAL RECORDS, BEING ALSO AT THE NORTHEAST CORNER OF THAT CERTAIN
INGRESS/EGRESS EASEMENT REFERENCED IN VOLUME 963, PAGE 788, CORRECTED IN
VOLUME 1041, PAGE 151 AND IN VOLUME 1155, PAGE 771, AND BEING IN THE WESTERLY
LINE OF THAT CERTAIN 50 FOOT INGRESS/EGRESS EASEMENT DESCRIBED IN
VOLUME 874, PAGE 633 AND VOLUME 742, PAGE 214, AND BEING A WESTERLY LINE OF
THAT CERTAIN 20.197 ACRE TRACT OF LAND CONVEYED TO CONTRACTORS
ENGINEERS INTERNATIONAL, INC. IN VOLUME 1644, PAGE 912, ALL OF THE
WILLIAMSON COUNTY OFFICIAL RECORDS FOR THE SOUTHEAST CORNER AND
PLACE OF BEGINNING HEREOF FROM WHICH POINT A 1/2 INCH REBAR FOUND IN THE
NORTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY NO. 29 AT THE SOUTHEAST
CORNER OF SAID INGRESSIEGRESS EASEMENT BEARS SOUTH 16031'03" EAST, 395.07
FEET;
THENCE, WITH COMMON LINE OF HEREIN DESCRIBED TRACT AND CONTRACTORS
ENGINEERS INTERNATIONAL, INC. 2.25 ACRE TRACT OF LAND, THE FOLLOWING 2
COURSES:
SOUTH 73024'53" WEST, 19.32 FEET TO A 1/2 INCH IRON ROD FOUND AT THE
NORTHWEST CORNER OF SAID INGRESS/EGRESS EASEMENT FOR AN ANGLE POINT
HEREOF;
SOUTH 73029'47" WEST, 229.27 FEET TO A 1/2 INCH IRON ROD FOUND AT THE
SOUTHWEST CORNER OF SAH) CALUETTE AND MCCUE TRACT OF LAND, BEING ALSO
THE NORTHWEST CORNER OF SAID CONTRACTORS ENGINEERS INTERNATIONAL,
INC. 2.25 TRACT OF LAND, AND BEING IN THE EASTERLY LINE OF THAT CERTAIN 4.50
ACRE TRACT OF LAND CONVEYED TO T.P. VINGO IN VOLUME 837, PAGE 601OF THE
WILLIAMSON COUNTY OFFICIAL RECORDS, FOR THE SOUTHWEST CORNER HEREOF;
THENCE, WITH THE COMMON LINE BETWEEN HEREIN DESCRIBED TRACT AND SAID
VINGO TRACT OF LAND, NORTH 17-04-59" WEST, 388.15 FEET TO A 5/8 INCH IRON ROD
FOUND AT THE NORTHWEST CORNER HEREOF ALSO BEING THE NORTHWEST
2023028145 Page 4 of 7
CORNER OF SAID VINGO TRACT OF LAND, AND BEING IN THE SOUTHERLY LINE OF
THAT CERTAIN 12.47 ACRE TRACT OF LAND CONVEYED TO THOMAS DOERFLERIN
VOLUME 837, PAGE 718 OF THE WH LiAMSON COUNTY OFFICIAL RECORDS FOR THE
NORTHWEST CORNER HEREOF;
THENCE, WITH THE COMMON LINE OF HEREIN DESCRIBED TRACT AND SAID
DOERFLER TRACT OF LAND, NORTH 72-14-40" EAST, AT A DISTANCE OF 233.18 FEET
PAST A 1/2 INCH REBAR FOUND AT THE NORTHWEST CORNER OF THE
INGRESSIEGRESS EASEMENT INCORRECTLY DESCRIBED IN VOLUME 963, PAGE 768 OF
THE WILLIAMSON COUNTY OFFICIAL RECORDS AND CONTINUING FOR A TOTAL
DISTANCE OF 253.12 FEET TO A 1/2 INCH IRON ROD FOUND AT THE NORTHEAST
CORNER HEREOF BEING ALSO THE SOUTHEAST CORNER OF SAID DOERFLER TRACT
OF LAND, AND BEING IN THE WESTERLY LINE OF SAID 50 FOOT INGRESS/EGRESS
EASEMENT AND SAID CONTRACTORS ENGINEERS INTERNATIONAL, INC. TRACT OF
LAND FOR THE NORTHEAST CORNER HEREOF;
THENCE, WITH THE COMMON LINE HEREIN DESCRIBED TRACT AND SAID
CONTRACTORS ENGINEERS INTERNATIONAL, INC. TRACT OF LAND, BEING ALSO THE
WEST LINE OF SAID 50 FOOT INGRESS/EGRESS EASEMENT, SOUTH 16°26'36" EAST,
393.63 FEET TO THE PLACE OR BEGINNING AND CONTAINING 2.252 ACRES OF LAND,
MORE OR LESS.
Tract Two:
INGRESS/EGRESS EASEMENT:
BEING 0.174 ACRES OUT OF THE WOODRUFF STUBBLEFIELD SURVEY ABSTRACT NO.
556 IN WILLIAMSON COUNTY, TEXAS, AND BEING A PORTION OF THAT CERTAIN 2.25
ACRE TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL,
INC. IN VOLUME 1155, PAGE 771OF THE WILLIAMSON COUNTY OFFICIAL RECORDS,
AND DESCRIBED AS INGRESS/EGRF.SS EASEMENT IN A DEED TO ROGER E. CALUETTE
AND PATTI ANN MCCUE IN VOLUME 1041, PAGE 151 OF THE WILLIAMSON COUNTY
OFFICIAL RECORDS, SAID TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED
BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2" REBAR FOUND AT THE NORTHEAST CORNER OF SAID 2.25 ACRE
TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL, INC.
BEING ALSO THE SOUTHEAST CORNER OF SAID CALUETTE AND MCCUE TRACT OR
LAND, AND BEING IN THE WESTERLY LINE OF THAT CERTAIN 50' INGRESS/EGRESS
EASEMENT DESCRIBED IN VOLUME 874, PAGE 633 AND VOLUME 742, PAGE 214 (CALLED
BERRY LANE), AND BEING A WESTERLY LINE OF THAT CERTAIN 20.197 ACRE TRACT
OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL, INC. IN
VOLUME 1544, PAGE 912, ALL OF THE WILLIAMSON COUNTY OFFICIAL RECORDS FOR
THE NORTHEAST CORNER AND PLACE OF BEGINNING HEREOF;
2023028145 Page 5 of 7
THENCE WITH THE COMMON LINE BETWEEN SAID CONTRACTORS ENGINEERS
INTERNATIONAL, INC. 2.25 ACRE TRACT OF LAND AND SAID CONTRACTORS
ENGINEERS INTERNATIONAL INC. 20.197 ACRE TRACT OF LAND, BEING ALSO THE
WEST LINE OF SAID 50' INGRESS/EGRESS EASEMENT, S 16° 32' 19" E 394.93 FEET TO A
1/2" REBAR FOUND IN THE NORTHERLY R.O.W. LINE OF STATE HIGHWAY NO.29 AT
THE SOUTHEAST CORNER OF SAID INGRESS/EGRESS EASEMENT HEREIN DESCRIBED,
BEING ALSO THE SOUTHEAST CORNER OF SAID 2.25 ACRE TRACT OF LAND AND BEING
THE MOST SOUTHERLY SOUTHWEST CORNER OF SAID CONTRACTORS ENGINEERS
INTERNATIONAL, INC. 20.197 ACRE TRACT OF LAND, FOR THE SOUTHEAST CORNER
HEREOF;
THENCE WITH THE NORTHERLY R.O.W. LINE OF STATE HIGHWAY 29' (R.O.W. VARIES),
BEING ALSO THE SOUTHERLY LINE OF SAID 2.25 ACRE TRACT OF LAND, S 720 25' 01" W
19.05 FEET TO A 1/2" REBAR FOUND AT THE SOUTHWEST CORNER OF SAID
INGRESS/EGRESS EASEMENT HEREIN DESCRIBED FOR THE SOUTHWEST CORNER
HEREOF;
THENCE CROSSING SAID 2.25 ACRE TRACT OF LAND, BEING ALSO THE WESTERLY
LINE OR THE HEREIN DESCRIBED INGRESS/EGRESS EASEMENT, N 1S- 34' 41" W 395.36
FEET TO A 1/2' REBAR FOUND IN THE NORTHERLY LINE OF SAID 2.25 ACRE TRACT OF
LAND, BEING ALSO IN THE SOUTHERLY LINE OF SAID CALUETTE AND MCCUE TRACT
OF LAND, FOR THE NORTHWEST CORNER HEREOF.
N
Franchise Tax Account Status
As of: 10/29/2024 11:21:27
This summary page is designed to satisfy standard business needs. If you need to reinstate or terminate a
business with the Texas Secretary of State, you must
obtain a certificate specific to that purpose.
TEAM KAM MANAGEMENT LLC
Texas Taxpayer Number 132061914837
Mailing Address � PO BOX 114 SOMERSET, TX 78069-0114
® Right to Transact Business in ACTIVE
Texas
State of Formation TX
SOS Registration Status
(SOS status updated each business ACTIVE
day)
Effective SOS Registration Date 10/25/2016
Texas SOS File Number 0802569881
Registered Agent Name I WAYNE A. WILDMAN
Registered Office Street Address 112221 FM 476 SOMERSET, TX 78069
Franchise Tax Account Status
As of: 10/29/2024 11:21:27
This summary page is designed to satisfy standard business needs. If you need to reinstate or terminate a
business with the Texas Secretary of State, you must
obtain a certificate specific to that purpose.
TEAM KAM ENTERPRISES LTD.
Texas Taxpayer Number 32061914779
Mailing Address PO BOX 114 SOMERSET, TX 78069-0114
® Right to Transact Business in ACTIVE
Texas
State of Formation TX
SOS Registration Status
(SOS status updated each business ACTIVE
day)
Effective SOS Registration Date 10/25/2016
Texas SOS File Number 0802569890
Registered Agent Name WAYNE A. WILDMAN
Registered Office Street Address 12221 FM 476 SOMERSET, TX 78069
Secretary of State
P.O. Box 13697
Muslin, TX 78711-3697
FAX: 512/463-5709
Filing Fee: $300
Certificate of Formation
Limited Liability Company
Filed in the Office of the
Secretary of State of Texas
Filing #: 802569881 10/2512016
Document #: 696058170002
Image Generated Electronically
for Web Filing
! Article 1 - Entity Name and Type
The filing entity being formed is a limited liability company. The name of the entity is:
Team KAM Management LLC
Article 2 — Registered Agent and Registered Office
FA. The initial registered agent is an organization (cannot be company named above) by the name of:
m
F B. The initial registered agent is an individual resident of the state whose name is set forth below:
Name:
Wayne A. Wildman
,C. The business address of the registered agent and the registered office address is
`Street Address
:
112221 FM 476 Somerset TX 78069
Consent of Registered Agent
F_A. A copy of the consent of registered agent is attached.
OR
B. The consent of the registered agent is maintained by the entity.
Article 3 - Governing Authority
;Ise A. The limited liability company is to be managed by managers.
OR
JFB. The limited liability company will not have managers, Management of the company is reserved to the members.
The names and addresses of the governing persons are set forth below:
Manager 1: Dianna K. Wildman le: Manager
µddress: 12221 FM 476 Somerset TX, USA 78069
Managerz: Wayne A. Wildman Title.- Manager ,
�ddress: 12221 FM 476 Somerset TX, USA 78069
Article 4 - Purpose
The purpose for which the company is organized is for the transaction of any and all lawful business for which limited
liability companies may be organized under the Texas Business Organizations Code.
Supplemental Provisions / Information
i
i[The attached addendum, it any, is incorporated herein by reference.]
Organizer
------ --- ---- — - _................ -
'The name and address of the organizer are set forth below,
John R. Ott 2500 Bee Cave Rd, Bldq 2, Ste 150, Austin, TX 78746
Effectiveness of Filing
!rs-� A. This document becomes effective when the document is filed by the secretary of state.
OR
I—B. This document becornes effective at a later date, which is not more than ninety (90) days from the date of its
;signing. The delayed effective date is;
Execution
The undersigned affirms that the person designated as registered agent has consented to the appointment. The
undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or
;fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of
;law governing the entity to execute the filing instrument.
!John R. Ott
---- --- ---
;Signature of Organizer --- _...__---------
FILING OFFICE COPY
COMPANY AGREEMENT
OF
TEAM KAM MANAGEMENT LLC,
A TEXAS LIMITED LIABILITY COMPANY
THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS
LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE TEXAS SECURITIES
ACT OR OTHER SIMILAR STATE STATUTES IN RELIANCE UPON EXEMPTIONS
FROM REGISTRATION AS PROVIDED IN THOSE STATUTES. THE SALE OR
OTHER DISPOSITION OF THE LIMITED LIABILITY COMPANY INTERESTS IS
RESTRICTED, AS SET FORTH IN THIS LIMITED LIABILITY COMPANY
AGREEMENT, AND IN ANY EVENT IS PROHIBITED UNLESS THE MANAGER
RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE MANAGER AND
ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION CAN BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND UNDER APPLICABLE STATE STATUTES. BY ACQUIRING THE
LIMITED LIABILITY COMPANY INTEREST REPRESENTED BY THIS LIMITED
LIABILITY COMPANY AGREEMENT, EACH MEMBER REPRESENTS THAT IT
WILL NOT SELL OR OTHERWISE DISPOSE OF ITS LIMITED LIABILITY
COMPANY INTEREST WITHOUT REGISTRATION OR OTHER COMPLIANCE
WITH THE AFORESAID STATUTES AND THE RULES AND REGULATIONS
THEREUNDER AND THE TERMS AND PROVISIONS OF THIS AGREEMENT.
COMPANY AGREEMENT
OF
TEAM KAM MANAGEMENT LLC,
A TEXAS LIMITED LIABILITY COMPANY
TABLE OF CONTENTS
Page -
ARTICLE
IDEFINITIONS................................................................................................ 1
1.1 Definitions...........................................................................................................................I
ARTICLE II ORGANIZATION . . 4
2.1 Formation............................................................................................................................4
2.2 Name...................................................................................................................................4
2.3 Principal Place of Business..................................................................................................4
2.4 Term ....................................... ....4
2.5 Purposcs..............................................................................................................................4
2.6 Independent Activities of Managers and Members.............................................................5
2.7 Statutory Requirements.......................................................................................................5
ARTICLE III CAPITAL . 5
3.1 Maintenance of Capital Accounts.......................................................................................5
3.2 Initial Capital Contributions...............................................................................................6
3.3 Liability of Members..........................................................................................................6
3.4 Negative Capital Accounts..................................................................................................6
3.5 Other Matters......................................................................................................................6
3.6 No Preemptive Rights..........................................................................................................6
ARTICLE IV ALLOCATION OF INCOME. GAINS. AND LOSSES ............................. 6
4.1 Profits..................................................................................................................................6
4.2 Losses...................................................................................................................................7
4.3 Special Allocations..............................................................................................................7
4.4 Other Allocation Rules.......................................................................................................8
4.5 Tax Allocations Under Code Section 704(c).......................................................................8
ARTICLE V COMPANY PROPERTY............................................................................... 9
5.1 CompanyPProperty...............................................................................................................9
ARTICLE VI DISTRIBUTIONS. . 9
6.1 Distribution of Available Cash ..............
.............................................................................. 9mp
6.2 Distributions on Termination of the Coany...................................................................9
6.3 Incorrect Payments..............................................................................................................9
6.4 Distributions in Kind............................................................................................................9
6.5 Amounts Withheld..............................................................................................................9
ARTICLE VII ACCOUNTING AND TAX MATTERS ..................................................... 10
7.1 Fiscal Year.........................................................................................................................10
7.2 Method of Accountine.......................................................................................................10
7.3 Tax Returns.......................................................................................................................10
7.4 Tax Matters Manager........................................................................................................10
ARTICLEVIII MANAGERS.................................................................................................10
8.1 Powers................................................................................................................................10
8.2 Number:Oualifications.....................................................................................................12
8.3
Succession, Election, Removal, Resignation, and Incapacity...........................................12
8A
Indemnification of Managers and Other Agents................................................................13
ARTICLE IX MEETINGS OF THE MANAGERS AND MEMBERS ...........................14
9.1
Place...................................................................................................................................14
9.2
First Meeting of Managers.................................................................................................14
9.3
Regular Meetings...........................................................................................14
9.4
Special Meetings................................................................................................................14
9.5
Notice and Waiver of Notice........................................................... ....14
9.6
Quorum of Manabers........................................................................................................15
9.7
Committees........................................................................................................................15
9.8
Delegation ..........................................................................................................................15
9.9
Officers..............................................................................................................................15
9.10
Meetings of Members.......................................................................................................15
9.11
Action Without Meetings..................................................................................................15
ARTICLE X ADMISSION OF MEMBERS; TRANSFERS OF INTERESTS;
WITHDRAWAL OF A MEMBER.
16
10.1
Transfers of Membership Interests by Members...............................................................16
10.2
Options on Dcath...............................................................................................................17
10.3
Options on Divorce .................................................... .................17
10.4
Options on Distributions from Trust.................................................................................18
10.5
Options on Involuntary Transfers......................................................................................18
10.6
Uercisc of Options ....................................
10.7
Transfer to Permitted Transferee.......................................................................................20
10.8
Actuarially Held for Permitted Transferees......................................................................21
10.9
Prohibited Transfers..........................................................................................................21
10.10
Right of Transferee to Become a Member........................................................................22
10.11
Withdrawal of a Member...................................................................................................22
10.12
Redemption of Withdrawing Member's Interest if Company Not Wound Up .................22
10,13
Distribution in Liquidation of a Memb_er's Interest,.........................................................23
ARTICLE XI DISSOLUTION AND TERMINATION ....................................................
23
11.1
Causes of Dissolution.......................................................................................................23
11.2
Winding Up........................................................................................................................23
11.3
No Additional Compensation............................................................................................24
11.4
Compliance with Timing Requirements of Regulations....................................................24
11.5
Consequences of Tax Termination....................................................................................24
11.6
Rights of Member ................................................ ...........25
ARTICLE XII CONFIDENTIALITY OF INFORMATION .............................................
25
ARTICLE XIII ALTERNATIVE DISPUTE RESOLUTION (ADR); BINDING
ARBITRATION. .
25
13.1
Agreement to Use Procedure.............................................................................................25
13.2
Initiation of Procedure.......................................................................................................26
13.3
Direct Negotiations ............................................................................................................26
13.4
Mediator Selection.............................................................................................................26
13.5
Mediation Time and Place.................................................................................................26
13.6
Information Exchange........................................................................................................26
13.7
Summary of Views............................................................................................................27
13.8
Parties to be Represented...................................................................................................27
13.9
Conduct of Mediation........................................................................................................27
13.10 Termination of Procedure..................................................................................................27
13.11
Mediation Fees; Disqualification.......................................................................................28
13.12
Confidentiality...................................................................................................................28
13.13
Arbitration..........................................................................................................................28
ARTICLE XIV GENERAL PROVISIONS........................................................................... 28
14.1
Company Records..............................................................................................................28
14.2
Applicable Law,................................................................................................................30
14.3
Binding Agreement...........................................................................................................30
14.4
Notices..............................................................................................................................30
14.5
Terminolot;y.....................................................................................................................30
14.6
11cadinns............................................................................................................................31
14.7
Entire Agreement..............................................................................................................31
14.8
Severabilitv........................................................................................................................31
14,9
Other Instruments...............................................................................................................31
14.10
Waiver of Partition............................................................................................................31
14.11
Amendments.....................................................................................................................31
14.12
Waivers..............................................................................................................................31
14.13
CounteiMarts......................................................................................................................31
14.14
Mergers and Exchanges....................................................................................................31
14.15
No State Law Partnership..................................................................................................31
ill
COMPANY AGREEMENT
OF TEAM KAM MANAGEMENT LLC,
A TEXAS LIMITED LIABILITY COMPANY
This Company Agreement of TEAM KAM MANAGEMENT LLC (the "Agreement") is
executed to be effective as of the date on which the Certificate of Formation is filed with the
Texas Secretary of State (the "Effective Date") among the Managers and the persons listed on
Exhibit "A" as the Members for the purpose of organizing a Texas limited liability company on
the terms and conditions set forth in the Certificate of Formation and in this Agreement.
ARTICLE I
DEFINITIONS
1.1 Definitions. Subject to additional definitions contained in subsequent Articles of
this Agreement which are applicable to specific Articles or Paragraphs thereof, capitalized terms
used in this Agreement have the meanings set forth below;
(a) "Act" means the Texas Business Organizations Code, and any successor
statute, as amended from time to time,
(b) "Adjusted Capital Account Deficit" means the negative balance, if any, of
a Member's Capital Account after all adjustments thereto have been made under this Agreement,
other than the adjustments required under the Subparagraph entitled "Qualified Income Offset"
of the Paragraph entitled "Special Allocations," and after the Member's Capital Account balance
has been-
(1) increased by any amounts which the Member is obligated to
restore pursuant to any provision of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences of Treas. Regs. §§1.704-2(g)(1) and 1.704-2(i)(5), and
(2) decreased by any amounts described in Treas. Regs. § § 1.704-
l(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6).
(c) "Agreement" means this Company Agreement.
(e) "Available Cash" means the cash balance of the Company from time to
time after the payment of, or provision for the payment of, all of the Company's obligations then
due and after the establishment of such reserves as the Manager may think appropriate for all
debts, expenses, capital improvements, replacements, and contingencies of the Company.
(f) "Capital Account" means, with respect to any Member, the capital account
maintained for such Member in accordance with the Paragraph entitled "Maintenance of Capital
Accounts" below.
(g) "Capital Contributions" means, with respect to any Member, the amount
of money and the initial Gross Asset Value of any property (other than money) contributed to the
Company with respect to the Interest held by such Member.
(d) "Certificate of Formation" means the Certificate of Formation filed with
the Secretary of State of the State of Texas pursuant to Section 3.005 of the Act, as amended and
restated from time to time.
(h) "Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended.
(i) "Company" means the limited liability company formed under the Act
pursuant to this Agreement, under the name TEAM KAM MANAGEMENT LLC.
0) "Descendants" means the children of the person or persons designated, as
well as the descendants of such children. The term includes an adoptive person and that adopted
person's descendants if, and only if, that adopted person is adopted before attaining one (1) year
of age.
(k) "Gross Asset Value" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(1) Except as provided in Clause (4) below, the initial Gross Asset
Value of any asset contributed by a Member to the Company shall be the gross fair market value
of such asset on the date of contribution, as determined by the contributing Member and the
Company.
(2) The Gross Asset Values of all Company assets shall be adjusted to
equal their respective gross fair market values, as determined by the Manager with the agreement
of the Members, as of the following times: (a) the acquisition of an additional Interest in the
Company by any new or existing Member in exchange for more than a de minimis Capital
Contribution; (b) the distribution by the Company to a Member of more than a de minimis
amount of property as consideration for an Interest in the Company; and (c) the liquidation of the
Company within the meaning of Treas. Reg. §1.704-1(b)(2)(ii)(g); provided, however, that
adjustments pursuant to Subelauses (a) and (b) above shall be made only if the Manager
reasonably determines that such adjustments are necessary or appropriate to reflect the relative
economic interests of the Members in the Company. For purposes of this Subparagraph (2),
Company assets being adjusted shall include receivables, payables and other items in which the
Company has unrealized income or deductions and the fair market value of such items shall be
their face amounts.
(3) Except as provided in clause (5) below, the Gross Asset Value of
any Company asset distributed to any Member shall be the gross fair market value of such asset
on the date of distribution as determined by the Company and the Member to whom the asset is
distributed.
(4) The Gross Asset Value of any promissory note contributed to the
Company by a Member who is the maker of the note shall be zero, and except as provided in
Subparagraph (e) of the Paragraph entitled "Maintenance of Capital Accounts" below, the
contributing Member's Capital Account will be subsequently credited with the amount of any
principal payments received on the note by the Company or the amount received by the
Company upon a taxable disposition of the note. The preceding sentence shall not apply to any
promissory note that is readily tradeable on an established securities market.
2
(5) The Gross Asset Value of any promissory note made by the
Company and distributed to a Member will be zero, and except as provided in Subparagraph (e)
of the Paragraph entitled "Maintenance of Capital Accounts" below, that Member's Capital
Account will be subsequently debited with the amount of any principal payments received by
him on the note or the amount received by him upon a taxable disposition of the note. The
preceding sentence shall not apply to any promissory note that is readily 'tradeable on an
established securities market.
(1) "Interest" means an ownership interest in the Company held by a person
representing a percentage of the total ownership interests in the Company, including any and all
benefits to which the holder of such an Interest may be entitled as provided in this Agreement,
together with all obligations of such person to comply with the terms and provisions of this
Agreement and applicable law.
(m) "Majority in Interest of the Members" at any time means Members whose
voting rights have not been suspended or terminated pursuant to this Agreement and whose
aggregate Interests exceed the indicated percentage or, if no percentage is indicated, exceed fifty
percent (50%).
(n) "Manager" means the person, or collectively the persons, designated from
time to time as the managers of the Company.
(o) "Members" means those persons listed on Exhibit "A" attached hereto and
made a part hereof and such other persons as may become Members from time to time in
accordance with this Agreement.
(p) "Member Obligation" means the obligation, if any, of a Member to make
additional Capital Contributions, to restore the negative balance of his Capital Account, to
compensate the Company or its other Members for any damages resulting from the Member's
acts or omissions, or to pay any other amount due and owing to the Company.
(q) "Profits and Losses" means, for each fiscal year or other period, an
amount equal to the Company's taxable income or loss for such year or period, determined in
accordance with Code Section 703(a), increased by items of tax exempt income and decreased
by items described in § 705(a)(2)(B) of the Code.
(r) "Property" means all real and personal property acquired by the Company
and any improvements thereto, and shall include both tangible and intangible property.
(s) "Regulations" mean the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as such Regulations may be amended from time to
time (including corresponding provisions of succeeding Regulations).
(t) "Sharing Percentage" means the allocable share of an indicated item of
profit, income, gain, loss, expense, deduction, or other allocable item of the Company expressed
as a percentage and associated with a membership Interest as set forth in Exhibit "A" as the same
may be amended from time to time.
(u) "Transfer" means any sale, assignment, gift, exchange, transfer, change in
beneficial interest of any trust or estate, distribution from any trust or estate, change in ownership
of a corporate or partnership Member, or any other transfer of an Interest, whether voluntary or
involuntary, direct or indirect, including, without limitation, the change of legal and beneficial
title of any Interest resulting from the death of any Member or the spouse of any Member, any
distribution of an Interest from an estate or trust to any beneficiary, or any change in ownership
of a corporate or partnership Member (including the dissolution of any corporate of partnership
Member). However, such term shall not include a mortgage, pledge, or other encumbrance of an
Interest (but such term shall include a foreclosure sale pursuant to any such mortgage, pledge, or
encumbrance).
(v) "Trust" or "trusts" mean all trusts and include any arrangement, although
not a trust, that has substantially the same effect as a trust.
ARTICLE II
ORGANIZATION
2.1 Formation. The parties to the Agreement hereby form a limited liability company
to be governed by the Certificate of Formation, by this Agreement, and by the Act.
2.2 Name. The name of the Company shall be "TEAM KAM MANAGEMENT LLC;
provided, however, that (a) the Company's business may be conducted under one or more
assumed names deemed advisable by the Manager, and (b) the Manager in his or her sole
discretion may change the name of the Company at any time and from time to time.
2.3 Principal Place of Business. The principal place of business of the Company shall
be:
Attn: Wayne A. Wildman & Dianna K. Wildman, Managers
12221 FM 476
Somerset, Texas 78069
or such other address as the Manager, in his or her discretion, may determine.
2.4 Term. The term of the Company shall commence when the Certificate of
Formation is filed with the Texas Secretary of State and shall continue until the Company is
terminated under the Article entitled "Dissolution and Termination" below,
2.5 Purposes. The purpose of the Company is:
(a) to enter into any other lawful investment or business enterprise;
(b) to conduct any and all activities normally exercised by an owner of
property in relation or incidental to the business conducted or property held by the Company;
and
(c) to conduct any other purpose or activity as the Members shall agree which
is permissible under the laws of the State of Texas.
4
2.6 Independent Activities of Managers and Members. Unless otherwise agreed, the
Manager and Members may, notwithstanding this Agreement, engage in whatever activities they
choose, whether the same or competitive with those of the Company or otherwise, without
having or incurring any obligation to offer any interest in such activities to the Company or any
Member. The Members and Managers acknowledge that each has his own separate business
interests and investments outside the Company and agree that no Member or Manager will ever
be obligated to disclose or recommend to the Company any new business or investment before
pursuing it for his own benefit, alone or with others.
2.7 Statutory Requirements. The Company's organizer has caused a Certificate of
Formation to be executed and filed with the Secretary of State of the State of Texas. The
Manager may file a Certificate of Amendment to the original Certificate of Formation and any
other certificates of amendment as may be authorized by a vote of a Majority in Interest of the
Members (except any certificates of termination, which shall require the vote of a two-thirds
(2/3) Majority in Interest of the Members); provided, however, that any amendments to this
Agreement shall have been adopted in accordance with the Paragraph entitled "Amendments."
ARTICLE III
CAPITAL
3.1 Maintenance of Capital Accounts. A separate Capital Account shall be
maintained on the books of the Company for each Member as follows:
(a) To each Member's Capital Account there shall be credited such Member's
Capital Contributions, such Member's allocable share of Profits, and any items in the nature of
income or gain which are specially allocated pursuant to the Paragraph entitled "Special
Allocations," and the amount of any Company liabilities assumed by such Member or which are
secured by any property distributed to such Member.
(b) To each Member's Capital Account there shall be debited the amount of
cash and the Gross Asset Value of any property distributed to such Member from the Company,
such Member's allocable share of Losses, and any items in the nature of expenses or losses
which are specially allocated pursuant to the Paragraph entitled "Special Allocations," and the
amount of any liabilities of such Member assumed by the Company or which are secured by any
property contributed by such Member to the Company.
(c) Each Member's Capital Account shall be adjusted in accordance with
Treas. Regs. §§1,704-1(b)(2)(iv)(f)(4) and 1.704-1(b)(2)(iv)(g) if the Gross Asset Value of any
Asset is adjusted.
(d) In the event all or a portion of an Interest in the Company is transferred in
accordance with the terms of this Agreement, the respective Capital Accounts of the transferee
and transferor shall be adjusted in accordance with Treas. Reg. § 1. 704-1(b)(2)(iv)(1).
(e) Upon the liquidation of a Member's Interest, the Member's Capital
Account will be debited or credited, as appropriate, for the fair market value of certain
promissory notes in accordance with Treas. Regs. §§1.704-1(b)(2)(iv)(d)(2) and 1.704-
1(b)(2)(iv)(e)(2).
5
(f) Each Member's Capital Account shall be adjusted as required by Treas,
Reg. §1.704-1(b)(2)(iv)(k) for depletion and gain or loss with respect to any oil and gas
properties held by the Company.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Treas. Reg, §1.704-1(b), and
shall be interpreted and applied in a manner consistent with such Regulations.
3.2 Initial Capital Contributions. The initial Capital Contributions of the Members
are as set forth in Exhibit "A" hereto,
3.3 Liability of Members. No Member shall be liable for any of the debts,
obligations, or liabilities of the Company.
3.4 Negative Capital Accounts. Except as otherwise provided in this Agreement, no
Member shall be obligated to restore a deficit in the Member's Capital Account solely by reason
of such negative Capital Account balance,
3.5 Other Matters.
(a) Except as otherwise provided in this Agreement, no Member shall demand
or receive a return of his Capital Contributions or withdraw capital from the Company without
the consent of all Members, Under circumstances requiring a return of any Capital Contributions,
no Member shall have the right to receive property other than cash except as may be specifically
provided herein.
(b) No Member or Manager shall receive any interest on, or salary or drawing
with respect to, his Capital Contributions or his Capital Account except as otherwise provided in
this Agreement or under a separate agreement providing therefor.
(c) Except as otherwise provided by this Agreement or by an assumption
agreement, no Member shall be liable for the debts, liabilities, contracts or any other obligations
of the Company in his capacity as a Member. Except as otherwise provided by this Agreement,
by any other agreements among the Members, or by applicable state law, a Member shall be
liable only to make his Capital Contributions and shall not be required to lend any funds to the
Company or, after his Capital Contributions have been paid, to make any additional
contributions to the Company.
3.6 No Preemptive Rights. Except as expressly provided otherwise in this
Agreement, no Member shall have any preemptive, preferential, or other right with respect to the
issuance or sale of Interests that may be issued or sold by the Company.
ARTICLE IV
ALLOCATION OF INCOME, GAINS, AND LOSSES
4.1 Profits. After giving effect to the special allocations set forth in the Paragraph
entitled "Special Allocations" below, Profits for any fiscal year shall be allocated in direct
proportion to each Member's Sharing Percentage.
6
4.2 Losses. After giving effect to the special allocations set forth in the Paragraph
entitled "Special Allocations" below, Losses for any fiscal year shall be allocated in direct
proportion to each Member's Sharing Percentage,
4.3 Special Allocations. The following special allocations shall be made in the
following order:
(a) Minimum Gain Chargebaek. If, during the Company's fiscal year, there is
a net decrease in the Company's minimum gain (as determined under Treas. Reg. §1.704-2(d)),
then items of income and gain of the Company shall be allocated to each Member having a
negative Capital Account balance at the end of such fiscal year in accordance with Treas. Reg.
§1.704-2(f). This provision is intended to comply with the "minimum gain chargeback"
requirement in the above referenced Section of the Regulations, and shall, to that extent, be
interpreted consistently therewith. If during a Company taxable year there is a net decrease in
Member non -recourse debt minimum gain, as defined in Treas. Reg. § 1.704-2(i)(2), any Member
with a share of that Member non -recourse debt minimum gain (determined under Treas. Reg.
§ 1.704-2(i)(5) as of the beginning of the year) must be allocated items of income and gain for the
year (and, if necessary, for succeeding years) equal to that Member's share of the net decrease in
the Member non -recourse debt minimum gain in compliance with Treas. Reg. § 1.704-2(i)(4).
(b) Qualified Income Offset. In the event any Member unexpectedly receives
any adjustments, allocations, or distributions described in Treas. Reg. §§1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Company income and gain shall be
specially allocated to each such Member in an amount and manner sufficient to eliminate, to the
extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as
quickly as possible, provided that an allocation pursuant to this Subparagraph shall be made only
if and to the extent that such Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article have been tentatively made as if this Subparagraph
were not in the Agreement.
(c) Gross Income Allocation. In the event any Member has a deficit Capital
Account at the end of any Company fiscal year which is in excess of the sum of: (1) the amount
such Member is obligated to restore pursuant to any provision of this Agreement and (2) the
amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences
of Treas. Regs. §§1.704-2(g)(1) or 1.704-2(i)(5), each such Member shall be specially allocated
items of Company income and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this Subparagraph shall be made only if and to the extent
that such Member would have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Article have been made as if the Subparagraph entitled
"Qualified Income Offset" and this Subparagraph were not in the Agreement.
(d) Section 754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Code §§734(b) or 743(b) is required, pursuant to Treas.
Reg. § 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the
amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and
such gain or loss shall be specially allocated to the Members in a manner consistent with the
7
manner in which their Capital Accounts are required to be adjusted pursuant to such Section of
the Regulations,
(e) Change in Regulations. If any of the specific Regulations upon which the
special allocations provided for in this Article are based are hereafter changed, or if new
Regulations are hereafter adopted, which changes or new Regulations, in the opinion of the tax
counsel retained by the Company, make it necessary to revise the foregoing special allocation
rules or provide further special allocation rules in order to avoid a significant risk that a material
portion of any allocation of net income, net losses, credits or other tax attributes otherwise
provided for would be altered as a result of a challenge thereto by the Internal Revenue Service,
the Members agree to make such reasonable amendments to the Agreement as, in the opinion of
such counsel, are necessary or desirable, taking into account the interests of the Members as a
whole and all other relevant factors, to avoid or reduce significantly such risk to the extent
possible without materially affecting the amounts distributable_ to any Member pursuant to this
Agreement.
4.4 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other items
allocable to any period, Profits, Losses, and any such other items shall be determined on a daily,
monthly, or other basis, as determined by the Manager using any permissible method under Code
§706 and the Regulations promulgated thereunder.
(b) For purposes of determining a Member's proportionate share of the
"excess nonrecourse liabilities" of the Company within the meaning of Treas. Reg. § 1.752-3, the
Members' interests in Company profits are as set forth in the Paragraph entitled "Profits" above.
4.5 Tax Allocations Under Code Section 704(c). In accordance with Code Section
704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any
property contributed to the capital of the Company (including those subsequently contributed by
the Company to another entity taxable as a partnership under the Code) shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes and its initial
Gross Asset Value,
In the event the Gross Asset Value of any Company asset is adjusted pursuant to this
Agreement, subsequent allocations of income, gain, loss, and dcduulion with tespeul to such
asset shall take account of any variation between the adjusted basis of such asset for federal
income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c)
and the Regulations promulgated thereunder.
The Manager may elect in its discretion to use curative allocations or the remedial
allocation method, as permitted by Treas. Reg. § 1.704-3, in association with any allocation made
pursuant to this Paragraph.
In the event that a Member contributes to the Company property as to which the disparity
between its adjusted basis for federal income tax purposes and its Gross Asset Value is small,
within the meaning of Treas. Reg. §1.704-3(e)(1), the Manager may in its discretion disregard
this Paragraph or defer its application until the Company disposes of such property.
Any elections or other decisions relating to such allocations shall be made by the
Manager in any manner that reasonably reflects the purpose and intention of this Agreement and
conforms to the requirements of Treas. Regs. § § 1.704-3 and 1.704-3T. Allocations pursuant to
this Paragraph are solely for purposes of federal, state, and local taxes and shall not affect, or in
any way be taken into account in computing, any Member's Capital Account or share of Profits,
Losses, other items, or distributions pursuant to any provision of this Agreement.
ARTICLE V
COMPANY PROPERTY
5.1 C;onnoanv Property. Real or personal property owned or purchased by the
Company shall be held and owned, and conveyance shall be made, in the name of the Company.
Instruments and documents providing for the acquisition, mortgage, or disposition of the
property of the Company or for the incurrence of debt shall be valid and binding upon the
Company if they are executed by the Manager.
ARTICLE VI
DISTRIBUTIONS
6.1 Distribution of Available Cash. Except as otherwise specifically provided in the
Agreement or as may be otherwise agreed to in writing by all Members, Available Cash for any
fiscal year (or part thereof) shall be distributed as follows: all Members shall receive
distributions for a given year in direct proportion to their respective Sharing Percentages.
6.2 Distributions on Termination of the Company. Distributions on termination of the
Company shall be -made in accordance with the Paragraph entitled "Winding Up."
6.3 Incorrect Paymcnis. To the extent any payment made to a Member is incorrectly
paid, as determined by the Company's financial statements, any Member who receives more than
should have been paid to such Member shall promptly repay to the Company the amount of any
such incorrect payment, and any such repaid amounts shall be redistributed pursuant to the
Agreement. If the Member fails to contribute such incorrect payment to the Company within
thirty (30) days of receiving notice of such incorrect payment (unless such failure is due to a
good faith dispute as to whether there was, in fact, an incorrect payment made), such refusal
shall be considered a failure to contribute additional capital pursuant to this Agreement.
6.4 Distributions in Kind. If any assets of the Company are to be distributed in kind,
such assets shall be distributed, unless otherwise agreed by all Members, to the Members entitled
thereto as tenants -in -common in the same proportions as such Members would have been
entitled to receive cash distributions.
6.5 Amounts Withheld. All amounts withheld pursuant to the Code or any provision
of any state or local tax law with respect to any payment or distribution to any Member shall be
treated as amounts distributed to that Member pursuant to this Article for all purposes under this
Agreement. The Manager may allocate any such amounts among the Members in any manner
that is in accordance with applicable law.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 Fiscal Year. The fiscal year of the Company shall be the fiscal year selected by
the Manager.
7.2 Method of Accounting. The books of the Company, for both tax and financial
reporting purposes, shall be kept on the method of accounting selected by the Manager.
7.3 Tax Returns. The Manager shall cause Company tax returns to be prepared and
filed with appropriate authorities on a timely basis. It is the intent of the Members that the
Company be taxed as a partnership.
7.4 Tax htatters Manager. The Manager shall have the specific authority to: (1)
extend the statute of limitations for assessment of tax deficiencies against the Members with
respect to adjustments to the Company's federal, state, or local tax returns; (2) represent the
Company and the Members before taxing authorities or courts of competent jurisdiction in tax
matters affecting the Company, the Manager, and the Members in their capacities as Manager or
Members; and (3) execute any agreements or other documents relating to or affecting such tax
matters, including agreements or other documents that bind the Manager and Members with
respect to such tax matters or otherwise affect the rights of the Company, Manager, and
Members; and (4) act as the "Tax Matters Partner" under the Code and in any similar capacity
under state or local law. The Manager is specifically instructed to take all action necessary to
constitute each Member a "notice partner" under Code §6231(a)(8).
ARTICLE VIII
MANAGERS
8.1 Powers. Except and to the extent that the Act, the Certificate of Formation, or this
Agreement shall reserve the same to the Members in whole or in part or otherwise restrict the
powers of the Manager, the powers of the Company shall be exercised by or under the authority
of, and the business and affairs of the Company shall be managed under the direction of, the
Manager of the Company. If there are two or more Managers, any action of the Managers shall
be taken by the vote of a majority of the Managers then serving (unless a super -majority is
required by the Act, the Certificate of Formation, or this Agreement) each such Manager having
one vote. Each Manager shall have the authority described in Section 101.254 of the Act to act
on behalf of the Company in any matter which has been duly authorized by the Managers, The
Manager shall have no authority to merge or dissolve the Company, liquidate it, or dispose of
substantially al] of its assets without the unanimous consent of the Members.
Notwithstanding anything to the contrary in this Agreement, any person dealing with the
Company shall be entitled to assume that any person who is then a Manager has full power and
authority, acting alone, 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. The Members hereby
waive any and all defenses or other remedies that may be available against such a third party to
contest, negate, or disaffirm any action of the Manager in connection with any such dealing. In
no event shall any person dealing with the Company be obligated to ascertain that the terms of
the Agreement have been complied with or to inquire into the necessity or expedience of any act
10
or action of the Manager or his representatives. Each and every certificate, document, or other
instrument executed on behalf of the Company by any Manager shall be conclusive evidence in
favor of any and every person relying thereon or claiming thereunder that: (1) at the time of the
execution and delivery of such certificate, document, or instrument, this Agreement was in full
force and effect; (2) the person executing and delivering such certificate, document, or
instrument was duly authorized and empowered to do so for and on behalf of the Company; and
(3) such certificate, document, or instrument was duly executed and delivered in accordance with
the terms and provisions of the Agreement and is binding upon the Company.
The Manager shall have the sole and exclusive right to manage the business of the
Company and shall have all of the rights and powers which may be possessed by managers under
the Act including, without limitation the right and power to:
(a) acquire by purchase, lease, like -kind exchange, or otherwise, any real or
personal property which may be necessary, convenient, or incidental to the accomplishment of
the purposes of the Company including the authority to lease or acquire real and personal
property from the Manager or any Member;
(b) operate, maintain, finance, improve, construct, own, grant options with
respect to, sell, convey, assign, mortgage, and lease any real estate and any personal property
necessary, convenient, or incidental to the accomplishment of the purposes of the Company,
including the sale of real estate and personal property to the Manager or any Member, and the
loan of Company funds to third parties, the Manager or any of the Members;
(c) make and execute any and all agreements, contracts, promissory notes,
loan agreements, security agreements, financing statements, collateral pledges, trust deeds,
mortgages, deeds, easements, affidavits, leases, assignments, certifications, and other instruments
necessary or convenient in connection with the acquisition, disposition, development,
management, maintenance, and operation of Company property, or in connection with managing
the affairs of the Company, including executing amendments to the Agreement and the
Certificate of Formation in accordance with the terms of the Agreement, pursuant to any power
of attorney granted by the Members to the Manager, and execute, in furtherance of any or all of
the purposes of the Company, any deed, lease, affidavit of non -production, mortgage, deed of
trust, mortgage note, promissory note, bill of sale, contract, or other instrument purporting to
convey or encumber any or all of the Company property;
(d) buiiuw nioney front third parties, the Manager, or any Member, and issue
evidences of indebtedness necessary, convenient, or incidental to the accomplishment of the
purposes of the Company, and secure the same by mortgage, pledge, or other lien on any
Company property;
(e) prepay.in whole or in part, refinance, recast, increase, modify, or extend
any liabilities affecting the Company property and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Company property;
(f) care for and distribute funds to the Members by way of cash, income,
return of capital, or otherwise, all in accordance with the provisions of this Agreement, and
perform all matters in furtherance of the objectives of the Company or this Agreement;
11
(g) contract on behalf of the Company for the employment and services of
employees and/or independent contractors (which may include any Manager or an affiliate of
any Manager), such as property managers, investment managers or advisers, lawyers and
accountants, and delegate to such persons the duty to manage or supervise any of the assets or
operations of the Company;
(h) engage in any kind of activity and perform and carry out contracts of any
kind (including contracts of insurance covering risks to Company property and Manager
liability) necessary or incidental to, or in connection with, the accomplishment of the purposes of
the Company, as may be lawfully carried on or performed by a limited liability company under
the laws of each state in which the Company is then formed or qualified;
(i) make any and all elections for federal, state, and local tax purposes
including, without limitation, any election, if permitted by applicable law, to adjust the basis of
Company property pursuant to Code Sections 754, 734(b), and 743(b), or comparable provisions
of state or local law, in connection with transfers of Company Interests and Company
distributions;
0) take, or refrain from taking, all actions, not expressly proscribed or limited
by this Agreement, as may be necessary or appropriate to accomplish the purposes of the
Company;
(k) institute, prosecute, defend, settle, compromise, and dismiss lawsuits or
other judicial or administrative proceedings brought on or in behalf of, or against, the Company
or the Members in connection with activities arising out of, connected with, or incidental to this
Agreement, and to engage counsel or others in connection therewith.
8.2 Number; Qualifications. The Manager of the Company shall consist of one or
more persons. The number of persons serving as the Manager shall be fixed from time to time
by consent of a seventy-five (75%) Majority in Interest of the Members, No decrease in the
number of Managers shall have the effect of shortening the term of any incumbent Manager.
Managers need not be residents of the State of Texas nor Members of the Company.
8.3 Succession, Election. Removal. Resignation and Incapacity. The following shall
control regardless of the remainder of this Paragraph: (1) WAYNE A. WILDMAN and DIANNA
K. WILDMAN shall be the initial Managers, and (2) if one of them fails or ceases to act for any
reason, the other shall become the sole Manager of the Company. The persons serving as
Managers shall be elected and removed from time to time, with or without cause, by a seventy-
five percent (75%) Majority in Interest of the Members. A Manager may resign at any time on
thirty (30) days' written notice to each of the Members. If a Manager becomes incapacitated,
such Manager shall be deemed to have resigned upon the determination of such incapacity. Any
vacancy occurring in the Managers other than as a result of the removal of a Manager by the
Members may be filled by the vote of a majority of the remaining Managers even if the number
of remaining Managers does not constitute a quorum. For purposes of this Paragraph, an
individual shall be considered "incapacitated" when either of the following occur: (1) within any
thirty (30) consecutive days, two doctors residing in the individual's state of residence and
licensed to practice medicine in the individual's state of residence declare in notarized affidavits
that in their opinion the individual is unable to properly manage his or her affairs because of
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mental or physical reasons; or (2) a court of competent jurisdiction adjudges the individual to be
legally incapacitated. After an individual has been considered incapacitated according to this
Paragraph, such individual shall continue to be so considered until: (1) within any thirty (30)
consecutive days, two doctors residing in the individual's state of residence and licensed to
practice medicine in the individual's state of residence declare in notarized affidavits that in their
opinion the individual is able to properly manage his or her affairs because of a return to mental
or physical health; or (2) a court of competent jurisdiction adjudges the individual to have ceased
to be legally incapacitated.
8.4 Indemnification of Managers and Other Agents.
(a) Indemnification at the Discretion of the Company. The Company shall
indemnify any person who was, is, or is threatened to be, made a named defendant or respondent
in a proceeding because the person is or was a Manager, officer, employee, or agent of the
Company or serving at the request of the Company as a manager, officer, employee, or agent of
any other entity, as follows:
(1) Such person shall be indemnified against judgments, penalties
(including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred
by the person in connection with the proceeding; but, if the person is found liable to the
Company or is found liable on the basis that personal benefit was improperly received by the
person, the indemnification: (1) is limited to reasonable expenses actually incurred by the person
in connection with the proceeding and (2) shall not be made (even as to expenses) in respect of
any proceeding in which the person shall have been found liable for willful or intentional
misconduct in the performance of his duty to the Company.
(2) Such a person shall be indemnified under this Agreement only if it
is determined that such person conducted himself in good faith and reasonably believed, in the
case of conduct in his official capacity, that his or her conduct was in the Company's best
interest, and in all other cases that his or her conduct was at least not opposed to the Company's
best interests. In the case of any criminal proceeding, an additional determination must be made
that such person had no reasonable cause to believe his or her conduct was unlawful.
(3) A determination of indemnification must be made by a majority
vote of Managers who, at the time of the vote, are not named defendants or respondents in the
proceeding or by a Majority in Interest of the Members who are not named defendants or
respondents in the proceeding.
(b) Expenses Advanced. The Company shall pay or reimburse in advance of
the final disposition of a proceeding any reasonable expenses incurred by a Manager, officer,
employee, or agent of the Company, or person serving at the request of the Company as a
manager, officer, employee, or agent of any other entity who was, is, or is threatened to be, made
a named defendant or respondent in such a proceeding after the Company receives a written
affirmation by such person of his or her good faith belief that he or she has met the standard of
conduct necessary for indemnification as set forth herein and a written undertaking by or on
behalf of the person to repay the amount paid or reimbursed if it is ultimately determined that he
has not met those requirements.
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(c) Effect of Termination of Proceeding. The termination of a proceeding by
judgment, order, settlement, or conviction, or on a plea of nolo contendere or its equivalent is not
of itself determinative that the person did -not meet the requirements set forth herein. A person
shall be deemed to have been found liable in respect of any claim, issue or matter only after the
person shall have been so adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom,
(d) Indemnification for Deposits. Contracts. Options, and Other Payments and
Obligations. The Company shall indemnify, save harmless, and pay all expenses, costs, or
liabilities of any Manager or Member who for the benefit of the Company makes any deposit,
enters into any contract, acquires any option, or makes any other similar payment, or undertakes
or assumes any obligation in connection with any property proposed to be acquired by the
Company and who suffers any financial loss as the result of such action.
(e) Other Protection and Indemnification, The protection and indemnification
provided by this Agreement shall not be deemed exclusive of any other rights to which such
person may be entitled, under any agreement, insurance policy or vote of the Members, or
otherwise.
ARTICLE IX
MEETINGS OF THE MANAGERS AND MEMBERS
9.1 Place. Meetings of the Managers, regular or special, may be held either within or
without the State of Texas. Meetings may be held by telephonic conference.
9.2 first Meeting of Managers. After the issuance of the Certificate of Filing by the
Secretary of State of the State of Texas, an organizational meeting of the initial Managers named
in the Certificate of Formation shall be held, either within or without this state, at the call of a
majority of the Managers named in the Certificate of Formation, for the purpose of submitting
this Agreement for adoption by the Members, and transacting such other business as may come
before the meeting.
9.3 Regular Meetings. Regular meetings of the Managers may be held with or
without notice, unless notice is required under this Agreement, and at such time and at such place
as shall from time to time be determined by the Managers.
9.4 Special Meetings. Special meetings of the Managers may be called by any
Manager. Notice of each special meeting of the Manager shall be given to each Manager at least
two (2) days before the date of the meeting,
9.5 Notice 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 for the express
purpose of objecting to the transaction of any business on the ground that the meeting is not
lawfully called or convened. Any Manager, whether or not attending, may waive notice by the
execution of a written waiver. Except as may be otherwise provided by this Agreement, neither
the business to be transacted at, nor the purpose of, any regular or special meeting of the
Managers need be specified in the notice or waiver of notice of such meeting.
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9.6 Quorum of Managers. At all meetings of the Managers, a majority of the
Managers shall constitute a quorum for the transaction of business, unless a different number is
required by law or the Certificate of Formation or this Agreement. If a quorum shall not be
present at any meeting of Managers, the Managers present at that meeting may adjoum the
meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
9.7 Committees. The Managers, by resolution, may designate from among the
Managers one or more committees, each of which shall be comprised of one or more of the
Managers, and may designate one or more of the Managers as alternate members of any
committee, who may, subject to any limitations imposed by the Managers, replace absent or
disqualified Managers at any meeting of that committee. Any such committee shall have and
may exercise all of the authority of the Managers, subject to the limitations set out in Section
101.253 of the Act and the provisions of this Agreement.
9.8 Delegation. The Managers may from time to time delegate specific authorities
and responsibilities to one or more Managers who, pursuant to such delegations, will have the
power to exercise such responsibilities and the obligation to fulfill such responsibilities without
the joinder or consent of the other Managers.
9.9 Officers. The Managers may create and abolish from time to time one or more
offices, including that of President, Vice President, Treasurer or Secretary, delegate to such an
office any authorities and responsibilities deemed advisable, and appoint and remove, with or
without cause, any person as the holder of such an office.
9.10 Meetings of Members. Members holding at least an aggregate twenty percent
(20%) of all Interests, or any Manager, may call a meeting of the Members. The meeting shall
be held not less than ten (10) nor more than fifty (50) days after the date of written notice
thereof, at such place in or outside of Texas as the notice shall specify. The notice shall describe
the matters to be considered at the meeting, and no matter other than those described in the
notice may be taken up at the meeting, Members holding a Majority in Interest of the Members
shall constitute a quorum. Any Member attending the meeting shall be deemed to have waived
notice thereof unless he is attending for the exclusive purpose of objecting to the validity of the
meeting. Any Member, whether or not attending, may waive notice by the execution of a written
waiver. If all Members waive notice, a meeting shall be valid even though proper or timely
notice thereof may not have been given, and any matter may be considered at such a meeting
whether or not described in the notice of the meeting.
9.11 Action Without Meetings. Any action required or permitted to be taken at a
meeting of the Members, Managers, or any committee may be taken without a meeting without
prior notice, and without a vote, if a consent in writing, setting forth the action so taken, is signed
by the required majority of the Members, Managers, or committee members, as the case may be.
Such consent shall have the same force and effect as a unanimous vote at a meeting. Except as
otherwise provided in the Agreement, whenever a matter is to be voted on or consented to by the
Members other than at a meeting of the Members, a Member shall have ten (10) days after
receiving notice to respond to the matter in question. If a Member does not respond within the
ten (10) day period, he will be deemed to have waived his right to vote on or consent to such
matters. Approval or disapproval of the matter in question will then be determined by the
15
necessary percentage of Members voting or expressing their consent or lack of consent regarding
the matter,
ARTICLE X
ADMISSION OF MEMBERS; TRANSFERS OF INTERESTS;
WITHDRAWAL OF A MEMBER
10.1 Transfers of Membership Interests by Members.
(a) In General. Without the written consent of all Members, the transfer of all
or any part of an Interest shall be subject to the restrictions set forth in this Article. A permitted
transfer shall be effective as of the date specified in the instruments relating to the transfer of the
Interest unless this Agreement requires a different date. The Interest of any transferee shall be
subject to the provisions of this Agreement even if such transferee does not become a Member,
and the Company may disregard any transfer until it shall have received the transferee's written
acknowledgment that it shall hold the transferred Interest subject to all provisions of this
Agreement.
(b) Right of First Refusal on Sale.
(1) Notice of Sale. If a person desires to sell any Interest to any
person or entity who is not a permitted transferee (as defined in the Paragraph entitled "Transfer
to Permitted Transferee"), he must give written notice to the Company describing all the terms of
that sale (including the Interest to be sold, the purchase price, the terms for payment, the closing
date, any conditions to the sale, and the fair market value of any consideration to be given in the
form of property), and completely identifying the proposed ultimate purchaser.
(2) Options to Purchase. The Company will have a first option to
purchase all or some of the Interest described in the seller's notice, and may exercise that option
at any time within thirty (30) days of its receipt of the seller's notice by giving written notice to
the seller and each other Member of the portion of the Interest it has elected to purchase.
Each of the other Members will have a second option to purchase
his proportionate portion of any remaining portion of the Interest described in the seller's notice
and may exercise his option at any time within fifteen (15) days of the expiration of the
Company's option period by giving written notice to the seller of the portion of the Interest he
has elected to purchase.
If the Company and the other Members in the aggregate elect to
purchase less than all of the Interest described in the seller's notice, then none of those options
may be exercised.
If the Company and the other Members elect to purchase in the
aggregate all of the Interest described in the seller's notice, then the Company and those
Members who have elected to purchase (subject to any conditions stated in the seller's notice)
will become bound to purchase, and the seller will become bound to sell, that entire Interest to
the Company and electing Members in the proportions specified in the exercise notices. Each
such purchaser will pay a pro rata share of the purchase price as described in the seller's notice,
to be paid on the same terms as described in the Seller's notice, except that in lieu of any
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consideration which is other than cash or notes, the purchaser will pay cash equal to the value of
that consideration. If more than one purchaser is required to give a note in payment of any
portion of the purchase price, each such note shall be independent and free of any cross default
provision, and if security is required for such a note by the term of the Seller's notice, the
security given for one such note shall not secure the payment of any other such note.
The closing of any purchases by the Company or other Members
will take place on the later of: (a) the closing date specified in the seller's notice, or (b) ten (10)
days after the expiration of the second option period.
If the options under the provisions of this Subparagraph are not
exercised the proposed sale may take place. However, the Company will have the right to
examine, within the thirty (30) days following the closing date described in the seller's notice,
the records of the seller and the purchaser to satisfy itself that the sale has been consummated on
the terms described in the seller's notice. If the sale is not consummated on those terms and
within the time specified in the seller's notice, the Company may cancel on its books any transfer
of Interest previously made to reflect that sale.
10,2 Options on Death.
(a) Upon the death of any person owning any Interest in the Company, the
decedent's Interest (and, if the decedent's spouse is not a Member, the surviving spouse's marital
property interest in the Interest) will be subject to the following restrictions. These restrictions
shall also apply to any Interest over which the decedent held a testamentary power of
appointment.
Any Interest which would pass, by the terms of the decedent's will (or by
intestate devolution, if applicable, or by any instrument the applicable provisions of which take
effect at death), or by the terms on which the power of appointment was exercised to a permitted
transferee (as defined in the Paragraph entitled "Transfer to Permitted Transferee") may pass to
such person or entity without restriction. Any Interest which would not pass to such a person or
entity will be subject to the following restrictions:
(1) If the decedent is survived by a spouse who is a Member, that
spouse will have a first option to purchase all or a portion of the Interest.
(7) If the decedent is not survived by such spouse, the Company will
have a first option to purchase all or a portion of the Interest. If the surviving spouse has a first
option, the Company will have a second option to purchase all or a portion of the remaining
Interest,
(3) The other Members will have a final option to purchase all or a
portion of the remaining Interest.
(b) These options may be exercised as set out in the Paragraph entitled
"Exercise of Options," and for that purpose the first option period will begin on the date of the
decedent's death and will end two hundred (200) days thereafter.
10.3 Options on Divorce.
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(a) Upon the expiration of all periods for, or waiver of, appeal of any decree
of divorce or annulment which awards any Interest in shares to any person who was not already a
Member, the Interest so awarded will be subject to the following options:
(1) If the person from whom the subject Interest was awarded was a
Member, that person will have a first option to purchase all or a portion of the subject Interest. If
the person from whom the subject Interest was awarded was not a Member, the spouse who is a
Member will have a first option to purchase all or a portion of the subject Interest.
(2) The Company will have a second option to purchase all or a
portion of the remaining subject Interest.
(3) The other Members will have a final option to purchase all or a
portion of the remaining subject Interest.
(b) These options may be exercised as set out in the Paragraph entitled
"Exercise of Options," and for that purpose the first option period will begin on the date on
which all periods for appeal expire and will end thirty (30) days thereafter.
10.4 Options on Distributions from 'Trust.
(a) If any Interest is distributed by a trust to any person or entity who is not a
permitted transferee (as defined in the Paragraph entitled "Transfer to Permitted Transferee"),
the Interest so distributed will be subject to the following options:
(1) The Company will have a first option to purchase all or any portion
of the interest.
(2) The other Members will have a second option to purchase all or
any portion of the remaining Interest.
(b) These options may be exercised as set out in the Paragraph entitled
"Exercise of Options," and for that purpose the first option period will begin on the date of
distribution and will end sixty (60) days thereafter.
10.5 Options on Involuntary Transfers.
(a) If any Interest passes to any person other than a Member as a result of
attachment, garnishment, execution, levy, seizure, foreclosure of (or transfer pursuant to) a
pledge or other security or collateral interest, receivership, or other involuntary means of any
kind, whether or not judicial, or as a result of a receivership or bankruptcy proceeding whether or
not voluntary, the Interest so passing will be subject to the following options:
(1) The Company will have a first option to purchase all or any portion
of the Interest.
(2) The other Members will have a second option to purchase all or
any portion of the remaining Interest.
18
(b) These options may be exercised as set out in the Paragraph entitled
"Exercise of Options," and for that purpose the first option period will begin on the date of
transfer and will end one hundred and eighty (180) days thereafter. Notwithstanding the
foregoing or the provisions of the Paragraph entitled "Exercise of Options," the price at which
any Interest may be redeemed or purchased in connection with any involuntary transfer shall not
exceed the amount which will discharge the subject indebtedness.
10.6 Exercise of Options.
(a) Option Period. The option period for any first option arising under this
Article (except the Paragraph entitled "Transfers of Membership Interests by Members") will be
the period specified for it above. However, the commencement of any first option period will be
postponed from day to day until the Company and the optionee of that first option become aware
of the event which created the option. The duration of the first option period will also be
extended, day to day, as necessary until the purchase price has been determined under Exhibit
"B" to this Agreement. The option period for any second option will be twenty (20) days long
and will begin the day following the expiration of the first option period, The option period for
any third option will be twenty (20) days long and will begin the day following the expiration of
the second option period.
(b) Method of Exercise. Any option under this Article (except the Paragraph
entitled "Transfers of Membership Interests by Members") may be exercised only by written
notice given within the applicable option period to the Manager as set forth in the Paragraph
entitled "Notices" and to the person whose Interest is subject to that option.
(c) Option Price. The price at which an Interest will be bought or sold
pursuant to an option arising under this Article (except the Paragraph entitled "Transfers of
Membership Interests by Members") will be determined as provided in Exhibit "B" hereto.
Closing of that purchase or sale will take place on the later of the 15th day following the
expiration of the last option period for all options to purchase or sell ur un the 15th day following
the date on which the purchase price has been determined pursuant to Exhibit `B". At closing,
each purchaser will pay the purchase price of the Interest purchased by him as follows:
(1) Ten percent (10%) will be paid in cash.
(2) The balance of the purchase price will be paid by the execution and
delivery of the purchaser's promissory note, secured by a security interest of the Interest being
purchased evidenced by a Security Agreement in the form set out in Exhibit "C" hereto, earning
interest at a rate equal to the then "applicable federal rate" under Section 1274 of the Internal
Revenue Code, principal and accrued interest payable in sixty (60) equal blended monthly
installments.
(d) Delivery of Title. At the closing of any sale pursuant to an option under
this Article, the seller will deliver to the purchasers such documentation as the Company may
reasonably require evidencing the transfer. An Interest will be sold free and clear of all liens and
encumbrances whatsoever.
(e) Proportionate Purchases by Other Members. Each Member having the
right to exercise an option to purchase an interest has the right to purchase his proportionate part
19
of the Interest which is subject to that option, net of any portion of that Interest_ which the
Company may have elected to purchase. An electing Member's exercise notice which attempts
to exercise an option for a greater proportionate part of the Interest than that to which he is
entitled will be automatically reduced to the maximum proportionate part of the Interest to which
he is entitled. For this purpose each Member's proportionate part is a fraction of the Interest
which is subject to that option (net of any portion being purchased by the Company), the
numerator of which is the Interest of that Member and denominator of which is the total Interests
of all Members exercising that option.
(f) Voting of Interests in Favor or Against Company Purchases. If the vote or
consent of the Company's Members should ever be required in order to authorize the Company
to purchase any Interest pursuant to an option given by this Agreement, the holder of the Interest
which is subject to that option will vote in favor or against the purchase as is consistent with the
votes cast by a Majority in Interest of all other Members.
(g) Consent of Spouse. This Agreement restricts the freedom of a person's
spouse to dispose of his or her interest in the Interest owned by such person. Additionally, when
an option to purchase an Interest arises under this Agreement, that option will extend to any
marital property interest in that Interest. The spouses of the undersigned Members have signed
this Agreement, acknowledging that they have read and understand it, and agree to be bound by
its terms. However, nothing in this Agreement shall ever be construed to convert or attempt to
convert into community property the separate property character of any Interest which
constitutes a person's separate property.
10.7 Transfer to Permitted Transferee. Notwithstanding the foregoing, a Person may
assign an Interest in the Company to a permitted transferee. For purposes of this Article,
"permitted transferee" shall mean:
(a) Each existing Member who is a party to this Agreement;
(b) A person who is a descendent of WAYNE A. WILDMAN and DIANNA
K. WILDMAN;
(c) A trustee of any trust which, at the applicable time, is more than seventy-
five percent (75%) actuarially held for permitted transferees, as subsequently defined;
(d) Any corporation in which, at the applicable time, each class of stock is
wholly (100%) owned by a permitted transferee or permitted transferees, ignoring any
community property interest of any spouse in such stock;
(e) Any partnership in which, at the applicable time, each class of partnership
interests is wholly (100%) owned by a permitted transferee or permitted transferees, ignoring any
community property interest of any spouse in such partnership interest;
(f) Any limited liability company or other form of incorporated or
unincorporated business organization in which each class of stock, membership, or other equity
interest is wholly (100%) owned by a permitted transferee or permitted transferees, ignoring any
community property interest of any spouse in such equity interest; and
20
(g) Any charity which would qualify for an estate or gift tax charitable
deduction under Section 2055 or 2522 of the Code.
10.8 Actuarially Held for Permitted Transferees. In determining if a trust is more than
seventy-five percent (75%) actuarially held for permitted transferees, the following shall apply,
(a) A trust, at the applicable time, is more than seventy-five percent (75%)
actuarially held for permitted transferees when more than seventy-five percent (75%) of the
actuarial value of the beneficial interests of the trust which are not to be ignored pursuant to
Subparagraphs (b), (c), and (d) below (the "Relevant Interests") are held for a permitted
transferee or permitted transferees. The actuarial value of the Relevant Interests will be more
than seventy-five percent (75%) held for a permitted transferee or permitted transferees, at the
applicable time, if the value of the Relevant Interests which are held for a permitted transferee or
permitted transferees have a value more than three times those Relevant Interest not so held. For
purposes of making that comparison, those Relevant Interests held for permitted transferees shall
be aggregated and those Relevant Interests not so held shall be aggregated, and both Relevant
Interests so aggregated shall be valued as they would be valued under Section 2512 (a) of the
Code if those aggregated interests could be assigned and were then assigned.
(b) For purposes of making that determination, the beneficial interest of a
spouse of a permitted transferee, which is not created pursuant to or as the result of a divorce,
shall be ignored. A spouse of a permitted transferee shall be any person who is then lawfully
married to a permitted transferee, or was married to a permitted transferee at that permitted
transferee's death.
(c) For purposes of making that determination, the beneficial interest of a
charity or charities under a trust shall be ignored. A charity, for purposes of this Subparagraph,
is an organization which would qualify for a charitable deduction under Section 2522 of the
Code, if a gift was made to that organization.
(d) For purposes of making that determination, the possibility that an interest
in a trust may be appointed pursuant to a special or general power of appointment shall be
ignored; provided, that the actual exercise of any such power of appointment may constitute a
transfer,
(e) The Manager is empowered (but not required) to certify whether any trust
is more than seventy-five percent (75%) actuarially held for permitted transferees, if such
certification is requested by a trustee of that trust. All Persons dealing with a Trustee of a trust
after that Trustee receives that certification are entitled to rely upon that certification. The
Manager may act (or not act) in his discretion and shall be liable only for fraud or acts or
omissions in bad faith. Any failure of the Manager to so act does not prevent the Company from
claiming that any such trust is or is not more than seventy-five percent (75%) actuarially held for
permitted transferees.
10.9 Prohibited Transfers. Notwithstanding any other provision of this Agreement, no
voluntary transfer of an Interest in the Company may be made if such transfer would result in a
termination of the Company for federal tax purposes pursuant to Section 708 of the Code,
adversely affect the classification of the Company as a partnership for tax purposes, or violate
21
any applicable provision of federal or state securities laws, and any attempt to do so shall be null
and void.
10.10 Might of 'Transferee to Become a Member. No transferee of all or part of a
Member's Interest shall have the right to become a Member without the unanimous consent of
the Members. Until the transferee is admitted as a Member, no Member or other person may
cast a vote with respect to the transferred Interest, and that Interest will be entirely disregarded
for purposes of determining the existence of a quorum or the validity of any action of the
Members. Any person or entity becoming a substituted Member shall pay the reasonable costs
of such substitution plus the reasonable costs and expenses the Company may incur in
connection with any federal income tax election made by the Company that benefits such
substituted Member.
10.11 Withdrawal of a Member.
(a) Except as otherwise provided in this Agreement, no Member shall have
the right (by statute or otherwise) to have his Interest redeemed or repurchased upon his
withdrawal.
(b) Except as otherwise provided in this Agreement with respect to the
transfer of an interest, no Member may withdraw from membership in the Company prior to the
dissolution and winding up of the Company without the consent of the Manager and all other
Members. If consent is given, the withdrawal shall be on such terms and conditions as the
Manager may deem appropriate in his sole discretion.
10.12 Redemption of Withdrawing Member's Interest if Company Not Wound Up.
Notwithstanding the provisions of Section 101.205 of the Act, if a Member withdraws and an
event requiring a winding up pursuant to the Paragraph entitled "Causes of Dissolution" does not
occur within sixty (60) days after the date of withdrawal, then the Interest of the withdrawing
Member may be redeemed by the Company as of the date of withdrawal as described in this
Paragraph, which shall also be considered the "date of closing" as used in Exhibit "B" attached
hereto.
(a) The withdrawing Member will be entitled to be indemnified by the
Company against all liability to Company creditors for Company obligations and to have the net
fair market value of his Interest, less his Member Obligation, together with interest thereon at
either (1) the "Prime Rate" published from time to time by The Wall Street Journal plus one
percent per annum or (2) such higher rate as may then be the "applicable federal rate" under
Section 1274 of the Code, paid to him in sixty (60) equal monthly installments of principal and
interest. If a Member's Obligation exceeds the amount payable to him for his Interest, he shall
remit the net amount of his Member Obligation in accordance with its terns, and no amount
shall be payable to him.
(b) If an event occurs within sixty (60) days of the withdrawal that requires a
winding up of the Company, then any redemption which the Company has elected to make as to
that withdrawal shall be rescinded and the withdrawing Member shall be deemed to have
continued to be a Member through the winding up.
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10.13 Distribution in Liquidation of a Member's Interest. If the Interest of a Member is
liquidated (other than by a purchase by another Member or the Company) any distribution to that
Member shall be made in an amount equal to the positive balance of that Member's Capital
Account, after giving effect to all contributions, distributions, and allocations for all periods
including the year during which such liquidation occurs, in compliance with Treas. Reg. §1.704-
1(b)(2)(ii)(b)(2). If that Member's Capital Account has a deficit balance (after giving effect to
all contributions, distributions, and allocations for all periods, including the year during which
such liquidation occurs), and if that Member has an obligation under this Agreement to restore
any negative balance in his Capital Account, that Member shall contribute to the capital of the
Company the amount necessary to restore such deficit balance to zero in compliance with Treas.
Reg. §1.704- 1 (b)(2)(ii)(b)(3). Such deficit restoration obligation on the part of the Member shall
be considered to be a debt to only the Company and to no other party. A Member shall also
remain liable for any other Member Obligation he may have to the Company, and the Company
may offset any distribution due to a Member against any such Member Obligation. If a
Member's Obligation exceeds the amount payable to him for his Interest, he shall remit the net
amount of his Member Obligation in accordance with its terms, and no amount shall be payable
to him.
ARTICLE XI
DISSOLUTION AND TERMINATION
11.1 Causes of Dissolution, The Company shall be dissolved upon the earliest to occur
of the following:
(a) Entry of a decree of judicial dissolution under Section 11.314 of the Act;
or
(b) The unanimous agreement of the Members that the Company should be
dissolved.
The death, expulsion, withdrawal, bankruptcy, or dissolution of a Member or the occurrence of
any other event which terminates the continued membership of a Member shall not cause the
dissolution of the Company.
11.2 Winding Up. Upon the dissolution of the Company, unless the business of the
Company is continued as provided in this Agreement, the Company shall continue solely for the
purposes of winding up its affairs in an urderly manner, liquidating its assets, and satisfying the
claims of its creditors and Members. No Member shall take any action that is inconsistent with,
or not necessary to or appropriate for, the winding up of the Company's business and affairs.
Each member shall repay any Member Obligation which he owes the Company, and the
Manager is authorized to employ all legal remedies for the collection of such monies. The
Manager (or, in the event there is no remaining Manager, any person elected by a Majority in
Interest of the Members) shall be responsible for overseeing the winding up of the Company and
shall take full account of the Company's liabilities and property. The Company property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds
therefrom, to the extent sufficient therefor, shall be applied and distributed in the following
order;
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(a) First, to the payment and discharge of all of the Company's debts and
liabilities to creditors other than the Members;
(b) Second, to the payment and discharge of all of the Company's debts and
liabilities to the Members; and
(c) Thereafter, the balance, if any, to the Members in proportion of the
positive balances of their Capital Accounts, after giving effect to all contributions, distributions,
and allocations for all periods.
In the discretion of the Manager, a pro rata portion of the distributions that would
otherwise be made to the Members pursuant to this Article may be distributed to a trust
established for the benefit of the Members for the purposes of liquidating Company assets,
collecting amounts owed to the Company, and paying any contested, contingent or unforeseen
liabilities or obligations of the Company arising out of or in connection with the Company. The
assets of any such trust shall be distributed to the Members, from time to time, in the reasonable
discretion of the Manager, in the same proportions as the amount distributed to such trust by the
Company would otherwise have been distributed among the Members pursuant to this
Agreement.
11.3 No Additional Compensation, No Manager shall receive any additional
compensation for any services performed pursuant to this Article.
11.4 Compliance with Timing Requirements of Regulations. In the event the
Company is "liquidated" within the meaning of Treas. Reg. §1.704-1(b)(2)(ii)(g), then: (1)
distributions shall be made pursuant to this Article to the Members who have positive Capital
Accounts in compliance with Treas. Reg. § 1.704-1(b)(2)(ii)(b)(2); and (2) if any Member's
Capital Account has a deficit balance (after giving effect to all contributions, distributions, and
allocations for all taxable years, including the year during which such liquidation occurs), and if
that Member has an obligation under this Agreement to restore any negative balance iii his
Capital Account, that Member shall contribute to the capital of the Company so much of the
Capital Contribution due from him as is necessary to restore such deficit balance to zero in
compliance with Treas. Reg. § 1.704-1 (b)(2)(ii)(b)(3), Such deficit restoration obligation on the
part of the Member shall be considered to be a debt to only the Company and to no other party
and it shall be incurred by the Member upon liquidation as provided herein. A Member shall
also remain liable for any other Member Obligation he may have to the Company, and the
Company may offset any distribution due to a MemLur against such Member Obligation. If a
Member's Obligation exceeds the amount payable to him for his Interest, then he shall remit the
net amount of his Member Obligation in accordance with its terms, and no amount shall be
payable to him.
11.5 Conscauences of Tax Termination. Notwithstanding any other provision of this
Article, in the event the Company is liquidated within the meaning of Treas. Regs. 1.704
1(b)(2)(ii)(g) but no liquidating event described in the Paragraph entitled "Causes of
Dissolution" has occurred, the Company's property shall not be liquidated, the Company's
liabilities shall not be paid or discharged, and the Company's affairs shall not be wound up.
Instead, the Company shall be deemed to have distributed its property in kind to the Members,
who shall be deemed to have assumed and taken subject to all Company liabilities, all in
24
accordance with their respective Capital Accounts; and immediately thereafter, the Members
shall be deemed to have recontributed that same property in kind to the Company, which shall be
deemed to have assumed and taken subject to all such liabilities.
11.6 Rights of Member. Except as otherwise provided in this Agreement, each
Member shall look solely to the assets of the Company for the return of his Capital Contribution
and shall have no right or power to demand or receive property other than cash from the
Company. Except as otherwise provided in this Agreement, no Member shall have priority over
any other Member as to the return of his Capital Contributions, distributions, or allocations.
ARTICLE XII
CONFIDENTIALITY OF INFORMATION
Each Member and Manager is entitled to all information under the circumstances and
subject to the conditions stated in this Agreement and the Act. The Members and Manager
agree, however, that seventy-five percent (75%) in Interest of the Members may determine, due
to contractual obligations, business concerns, or other considerations: (1) that certain
information regarding the business, affairs, property, and the Company's financial conditions will
be kept confidential and not provide it to some or all other Members; and (2) that it is not just or
reasonable for those Members, assignees, or representatives to examine or copy that information.
The Members and Manager acknowledge that they may receive information regarding the
Company in the nature of trade secrets or that otherwise is confidential. They acknowledge that
the release of this information may be damaging to the Company or persons with which it does
business. Each Member and Manager will hold in strict confidence any information in receives
regarding the Company that is identified as being confidential (and if that information is
provided in writing that is so marked). The Members and Manager acknowledge that breaching
this Paragraph's provisions may cause irreparable injury to the Company for which monetary
damages are inadequate, difficult to compute, or both. Accordingly, the Members and Manager
agree that this Paragraph's provisions may be enforced by specific performance. No Member or
Manager may disclose confidential information to any person other than another Member or
Manager, except the following disclosures: (1) those compelled by law, but the Member or
Manager must notify the Manager or seventy-five percent (75%) in Interest of the Members, as
appropriate, promptly of any request for that information, before disclosing it, if applicable; (2)
those to advisors or representatives of the Member, Manager, or assignees of the Members or
Manager, but only if they have agreed to be bound by this Paragraph's provisions; and (3) those
of information the Member or Manager also has received from a source independent of the
Company that the Member or Manager reasonably believes obtained that information without
breaching any confidentiality obligation.
ARTICLE XIII
ALTERNATIVE DISPUTE. RESOI,IJ'1'I()N ("A1)lt" ); BINDING A1031TIZATION
13.1 Agreement to Use Procedure, The Members and Manager have entered into this
Agreement in good faith and in the belief that it is mutually advantageous to them. It is with that
same spirit of cooperation that they pledge to attempt to resolve any dispute amicably without
the necessity of litigation. Accordingly, they agree if any dispute arises between them relating to
this Agreement (the "Dispute"), they will first utilize the procedures specified in this Article (the
"Procedure") before any Additional Proceedings.
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13.2 1 Initiation of Procedure. The Member or Manager seeking to initiate the
Procedure (the "Initiating Member or Manager") will give written notice to the other Members
and. Manager. The notice must describe in general terms the nature of the Dispute and the
Initiating Member or Manager's claim for relief. Additionally, the notice must identify one or
more individuals with authority to settle the Dispute on the Member or Manager's behalf. The
Member or Manager receiving the notice (the "Responding Member or Manager," whether one
or more) will have five business days within which to designate by written notice to the Initiating
Member or Manager, one or more individuals with authority to settle the Dispute on the Member
or Manager's behalf. The individuals so designated will be known as the "Authorized
Individuals." The Responding Member or Manager may authorize himself or herself as an
Authorized Individual. The Initiating Member or Manager and the Responding Member or
Manager will collectively be referred to as the "Disputing Members or Managers" or individually
as "Disputing Member or Manager."
13.3 Direct Negotiations, The Authorized Individuals may investigate the Dispute as
they deem appropriate. But they agree to promptly, and in no event later than 30 days from the
date of the Initiating Member or Manager's written notice, meet to discuss the Dispute's
resolution. The Authorized Individuals will meet at the times and places and with the frequency
as they may agree. If the Dispute has not been resolved within thirty (30) days from their initial
meeting date, the Disputing Members or Managers will cease direct negotiations and will submit
the Dispute to mediation in accordance with the following procedure.
13.4 Mediator Selection. The Authorized Individuals will have five business days
from the date they cease direct negotiations to submit to each other a written list of acceptable
qualified attorney -mediators not affiliated with any Member or Manager. Within five days from
the date the list is received, the Authorized Individuals will rank the mediators in numerical order
of preference and exchange the rankings. If one or more names are on both lists, the highest
ranking person will be designated as the mediator. If no mediator has been selected wider this
procedure, the Disputing Members or Managers agree .jointly to request a State or Federal
District Judge of their choosing to supply within ten business days a list of potential qualified
attorney -mediators. If they cannot agree upon a State or Federal Judge, the Local Administrative
Judge for the county in which the Company's principal office is located may supply the list.
Within five (5) business days from the date the list is received, the Authorized Individuals will
again rank the proposed mediators in numerical order of preference and will simultaneously
exchange the list and will select as the mediator the individual receiving the highest combined
ranking. If the mediator is not available to serve, they will proceed to contact the mediator who
was next highest in ranking until they are able to select a mediator.
13.5 Mediation Time and Place. In consultation with the mediator selected, the
Authorized Individuals will promptly designate a mutually convenient time and place for the
mediation. Unless circumstances require otherwise, the time for mediation may not be later than
45 days after selecting the mediator.
13.6 Information Exchange. If any Disputing Member or Manager to this Agreement
has substantial need for information in another Disputing Member or Manager's possession in
order to prepare for the mediation, all Disputing Members or Managers will attempt in good faith
to agree to procedures to expeditiously exchange the information, with the mediator's help if
required.
26
13.7 Summary of Views. At least seven days before the first scheduled mediation
session, each Disputing Member or Manager will deliver to the mediator and to the other
Disputing Members or Managers a concise written summary of its views on the matter in
Dispute and the other matters required by the mediator. The mediator may also request that a
confidential issue paper be submitted by each Disputing Member or Manager to him or her.
13.8 Parties to be Represented. In the mediation, each Disputing Member or Manager
will be represented by an Authorized Individual and may be represented by counsel. In addition,
each Disputing Member or Manager may, with the mediator's permission, bring the additional
persons as needed to respond to questions, contribute information, and participate in the
negotiations.
13.9 Conduct of Mediation.
(a) Mediation Format. The mediator will determine the format for the
meetings. The format must be designed to assure that:
(1) both the mediator and the Authorized Individuals have an
opportunity to hear an oral presentation of each Disputing Member or Manager's views on the
matter in dispute; and
(2) the authorized parties attempt to negotiate to resolve the matter in
dispute, with or without the assistance of counsel or others, but with the mediator's assistance.
(b) Commitment to Participate in Mediation in Good Faith. To this end, the
mediator is authorized to conduct both joint meetings and separate private caucuses with the
Disputing Members or Managers. The mediation session will be private. The mediator will
keep confidential all information learned in private caucus with any Disputing Member or
Manager unless specifically authorized by the Disputing Member or Manager to disclose the
infnrmstion to the other Disputing Member or Manager. The Disputing Members or Managers
agree to sign a document agreeing that the mediator will be governed by Chapter 154 of the
Texas Civil Practice and Remedies Code and the other rules as the mediator will prescribe. The
Disputing Members or Managers commit to participate in the proceedings in good faith with the
intention of resolving the Dispute if at all possible.
13.10 Termination of Procedure.
(a) Procedure to Terminate Mediation. The Disputing Members or Managers
agree to participate in the mediation procedure to its conclusion. The mediation will be
terminated by:
(1) executing a settlement agreement by the Disputing Members or
Managers;
(2) declaring to the mediator that the mediation is terminated; or
(3) a Disputing Member or Manager declaring in writing that the
mediation process is terminated when one full day's mediation session is concluded.
27
(b) If Dispute is Not Resolved. Even if the mediation is terminated without
the Dispute's resolution, the Disputing Members or Managers agree not to terminate negotiations
and not to commence any Additional Proceedings before five days following the mediation
expire. Any Disputing Member or Manager may, however, commence Additional Proceedings
within the five-day period if the Dispute could be barred by an applicable statute of limitations.
13.11 Mediation Fees, Disqualification. The mediator's fees and expenses will be
shared equally by the Disputing Members or Managers. The mediator will be disqualified as a
witness, consultant, expert, or counsel for any Disputing Member or Manager with respect to the
Dispute and any related matters.
13.12 Confidentiality. Mediation is a compromise negotiation for purposes of Federal
and State Rules of Evidence and constitutes privileged communication under Texas law. The
entire mediation process is confidential, and no stenographic, visual, or audio record will be
made. All conduct, statements, promises, offers, views, and opinions, whether oral or written,
made in the mediation's course by any Disputing Member or Manager, their agents, employees,
representatives or other invitees and by the mediator are confidential and will, in addition and
where appropriate, be deemed privileged. The conduct, statements, promises, offers, views, and
opinions will not be discoverable or admissible for any purpose, including impeachment, in any
litigation or other proceeding involving the parties. It will not be disclosed to anyone not any
Member or Manager's agent, employee, expert, witness, or representative. Evidence otherwise
discoverable or admissible is not, however, excluded from discovery or admission as a result of
its use in the mediation.
13.13 Arbitration. The parties agree to participate in good faith in the ADR to its
conclusion. If the Disputing Members or Managers are not successful in resolving the dispute
through the ADR, then the Disputing Members or Managers may submit the matter to binding
arbitration or a private adjudicator, or either Disputing Member or Manager may seek an
adjudicated resolution through the appropriate court ("Additional Proceedings"). If the
Additional Proceedings result in one party or parties prevailing and one party or parties losing,
the losing party or parties shall pay all costs of the Additional Proceedings and the attorney's
fees of the prevailing party or parties.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Company Records. Pursuant to Sections 3.151 and 101.501 of the Act, the
Company shall keep and maintain the following records in its principal office in the United
States or make them available in that office within five days after the date of receipt of a written
request:
(a) a current list that states:
(1) the name and mailing address of each Member;
(2) the percentage or other Interest in the Company owned by each
Member; and
28
(3) if one or more classes or groups are established in or under the
Certificate of Formation or this Agreement, the names of the Members who are Members of each
specified class or group;
(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 and this Agreement, 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 Agreement,
classes or groups of Members;
(d) a written statement of;
(1) the amount of the cash contribution and a description and
statement of the agreed value of any other contribution made by each Member, and the amount
of the cash contribution and a description and statement of the agreed value of any other
contribution that the Member has agreed to make in the future as an additional contribution;
(2) the times at which additional contributions are to be made or
events requiring additional contributions to be made;
(3) events requiring the Company to be dissolved and its affairs wound
up; and
(4) the date on which each Member in the Company became a
Member; and
(5) correct and complete books and records of account of the
Company.
The Company shall maintain its records in written form or in another form capable of
conversion into written form within a reasonable time.
The Company shall keep in its registered office in Texas and make available to Members
on reasonable request the street address of its principal United States office in which the records
required by this Paragraph are maintained or will be available.
A Member or an assignee of Interest, on written request stating the purpose, may examine
and copy, in person or by the Member's or assignee's representative, at any reasonable time, for
any proper purpose, and at the Member's expense, records required to be kept under this
Paragraph and other information regarding the business, affairs, and financial condition of the
Company as is just and reasonable for the person to examine and copy.
On the written request by any Member or an assignee of Interest made to the Manager at
the Company's principal office address, the Company shall provide to the requesting Member or
assignee without charge true copies of:
29
(a) the Certificate of Formation and this Agreement and all amendments or
restatements; and
(b) any of the tax returns described in Section 101,501(a)(2) of the Act.
14.2 Applicable Law. The Agreement shall be governed by, interpreted, construed,
and enforced in accordance with the laws of the State of Texas.
14.3 Binding Agreement. Subject to the restrictions on transfers and encumbrances set
forth in the Article entitled "Admission of Members; Transfers of Interests; Withdrawal of a
Member" above, this Agreement shall be binding upon and shall inure to the benefit of the
parties hereof, and their respective heirs, executors, administrators, legal representatives,
successors, and permitted assigns.
14.4 Notices. All notices, requests, demands, payments, or communications required
or permitted to be given under any provision of the Agreement must be in writing, signed by or
on behalf of the person giving the same, and shall be deemed to have been given when delivered
by personal delivery, overnight courier, or facsimile transmission or mailed by certified mail,
postage prepaid, return receipt requested, addressed to the person or persons to whom such
notice is to be given at the addresses set forth below (or at such other address as shall be stated in
a notice similarly given);
(a) if to the Manager, addressed to;
Wayne A. Wildman and Dianna K. Wildman, Managers
12221 FM 476
Somerset, Texas 78069
Exhibit "A." (b) if to a Member, addressed to the Member at the address set forth on
Except as otherwise specifically provided in the Agreement, all notices, requests,
demands, payments, or communications shall be deemed effective for the purpose of computing
any time period for the time within which any act must be performed from tine earlier of the (late
of actual receipt or the date of receipt noted on the return receipt thereof; provided, however, that
in the event the addressee should reject or refuse to accept same, then such shall be deemed
effective as of the date of mailing. If an attempt to give notice by facsimile transmission fails
because of any problem with the recipient's designated facsimile number or facsimile equipment,
such notice will nevertheless be considered to have been effected on the day of that attempted
transmission if it is also transmitted that day by overnight delivery to the recipient and is actually
received on the next following day. Any person may from time to time specify a different
address by notice to the Company and the Members.
14.5 Terminology. All personal pronouns used in this Agreement, whether masculine,
feminine, or neuter, shall include all other genders, and the singular shall include the plural and
vice versa whenever the context requires.
30
14.6 I-Ieadines. The cover page, table of contents, titles of Articles, Paragraphs, ,etc.
used in the Agreement are used for convenience only and shall not be considered in construing
the terms of the Agreement.
14.7 Entire Agreement. The Agreement, together with the Certificate of Formation,
contains the entire agreement between the parties hereto relative to the formation and operation
of the Company. No variation, modification, or change in the Agreement shall be binding upon
any Member unless such is agreed to in writing by all the Members. The Agreement supersedes
any prior understanding or oral or written agreement between the parties respecting the subject
matter of the Agreement.
14.8 Severability. If any one or more of the provisions contained in the Agreement, or
the application thereof to any party hereto or circumstances that may arise hereunder, shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, the remainder of the
Agreement and the application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
14.9 Other Instruments. The parties hereto covenant and agree that they will execute
such other and further instruments and documents as are or may become necessary or convenient
to effectuate and carry out the purposes of the Company consistent with the Agreement.
14.10 Waiver of Partition. To the maximum extent permitted under applicable law,
each Member hereby waives the right, if any, to partition the property and/or any other assets of
the Company.
14.11 Amendments. Except as otherwise specifically provided in the Agreement, no
amendment, modification, or change of the Agreement, or any part thereof, shall be valid and
effective unless made in writing and signed by all of the Members.
14.12 Waivers. No waiver of the Agreement, or any part hereof, shall be binding unless
made in writing and signed by the party to be charged with such waiver. No waiver of any
breach or condition of the Agreement shall be deemed to be a waiver of any subsequent breach
or other condition whether of like or different nature.
14.13 Counterparts. The Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which, taken together, shall constitute but one and the
same instrument, which may be sufficiently evidenced by one counterpart.
14.14 Mergers and Exchanges. The Company may be a party to (a) a merger, or (b) an
exchange or acquisition of the type described in Section 10.051 of the Act, subject to the
requirements of this Agreement.
14.15 No State Law Partnership. The Members intend that the Company not be a
partnership (including, without limitation, a limited partnership) or joint venture, and that no
Member or Manager be a partner or joint venturer of any other Member or Manager, for any
purposes other than federal and state tax purposes, and this Agreement may not be construed to
suggest otherwise.
31
/REAVINDA'R OF PAGE IN`l E'NTIONALLYLEFT FLANK]
32
IN WITNESS WHEREOF, the parties hereto have executed the Agreement to be
effective as set forth herein.
l
MANAGEW'.
rr
1/404
�
WAYNE A. WILDMAN
DIANNA K. WILDMAN
MEMBERS:
/ � ( / t a`
WAYNE A. WILDMAN
DIANNA K. WILDMAN
33
EXHIBIT "A"
Interest and
Member's Name
Initial Sharing
and Address
Contribution Percentage
WAYNE A. WILDMAN
$1,000.00 50%
12221 FM 476
Somerset, Texas 78069
DIANNA K. WILDMAN $1,000.00 50%
12221 FM 476
Somerset, Texas 78069
Exhibit A
EXHIBIT "B"
DETERMINATION OF PURCHASE, PRICE
The purchase price at which Interests shall be purchased or sold pursuant to the exercise
of any option created under the Article entitled "Admission of Members; Transfers of Interests;
Withdrawal of a Member" or any withdrawal under the same Article of the Agreement of TEAM
KAM MANAGEMENT LLC, a Texas Limited Liability Company, to which this Exhibit is
attached shall be determined as follows;
1. The parties to any such purchase or sale may agree upon a price for the Interest(s)
to be transferred in that transaction.
2. If an agreement under Paragraph l above is not reached before the date for
closing (determined without regard to any extension to determine the purchase price), the price
for the Interest(s) to be transferred (before the application of any minority discount) shall be an
amount set by unanimous written agreement between the Company and all the Members (as of
the date such amount is set), if such written agreement has been made not more than three
hundred and sixty five (365) days prior to the date on which the first option period to purchase
under the foregoing agreement has begun.
3. If an agreement under Paragraph I above is not reached before the date for
closing (determined without regard to any extension to determine the purchase price) and if no
price for the Interest has been set as described in Paragraph 2 above within such three hundred
and sixty five (365) day period, the price shall be the fair value of the Interest(s), determined by
appraisal as provided for in Paragraph 4 below as of the date on which occurred the event giving
rise to the option (the "valuation date").
In applying the foregoing, the purclase price thus determined for the Inlerest(s) will be
reduced by the amount of distributions with respect to such Interest(s) which are made to the
selling Member at any time after the valuation date.
4. Within thirty (30) days of the date on which Paragraph 3 above becomes
applicable, the sellers as a group will designate in writing one appraiser, and the purchasers as a
group will designate in writing a second appraisal. If either side fails to make a timely
designation of its appraiser, the other's appraiser will act alone to determine the value of the
Interest(s). The two appraisers will each make their appraisal without consultation with the
other. Any information given to one appraiser will also be given at the same time to the other
appraiser. Each side will pay its own appraiser.
If the value of the Interest(s) as determined by the appraiser who determines the higher
such value exceeds by less than fifteen percent (15%) the value as determined by the appraiser
who determines the lower such value, the simple average of the two values will control for
purposes of the transaction. If the higher value exceeds the lower value by more than fifteen
(15%), the two appraisers will agree within fourteen (14) days on a third appraiser. The cost of
the third appraiser will be paid in equal shares by the two sides to the transaction. The third
appraiser may consult with either or both of the other two appraisers. After he has determined
Exhibit B
the value of the Interest(s), the simple average of the two appraised values which are closest will
control for purposes of the transaction.
Each appraiser must be independent and experienced in business appraisals.
S. If any suit or other proceeding is brought by or between any parties to this
agreement to challenge the validity, reasonableness or enforceability of the price of the
Interest(s) as determined above and in such suit or proceeding it should be decided that the price
as determined above is invalid or unenforceable, any party to such suit or proceeding may seek a
determination by the trier of fact of a "fair market value of the Interest" to be paid in the
transaction and such determination shall be the price of the Interest(s) for the transactions
between the parties to that suit or proceeding.
Exhibit B 2
EXHIBIT "C"
SECURITY AGREEMENT
THIS AGREEMENT is made
1.
dated
as of between
(collectively the "Secured Party"), and
(collectively the "Debtor").
RECITALS
Debtor is indebted to Secured Party as evidenced by that certain Promissory Note
in the principal sum of $
2. Debtor and the Secured Party desire to have Debtor grant to the Secured Party a
security interest in the Collateral as security for Debtor's performance of the terms and conditions
of the Promissory Note and certain other obligations set forth herein.
THEREFORE, in consideration of the mutual covenants and conditions contained herein,
the parties hereto agree as follows:
AGREEMENT
Security Interest
1. Debtor hereby creates and grants to the Secured Party a security interest in the
Collateral described in Paragraph 2 hereof to secure payment and performance of the obligations of
Debtor set forth in Paragraph 3 hereof. At Secured Party's request, the Debtor will execute and
deliver to Secured Party Financing Statements and other documents reasonably necessary to perfect
and maintain such security interest.
Collateral
2. The Collateral in which the security interest is created is a % Interest in TEAM
KAM MANAGEMENT LLC, a Texas limited liability company (the "Company") or any
substituted Collateral deposited pursuant to the terms of Paragraph 8(b) hereof. The Collateral shall
also include any and all distributions from the Company to which the Debtor may become entitled
and any stock or other securities of the said Company (or of any successor entity) which may be
distributed to Debtor as a distribution in respect of the Collateral, or received by Debtor in exchange
for the Collateral, described above.
The Collateral is to be issued in the name of the Debtor, but any certificates therefor, issued
in the name of the Debtor, shall be held by the Secured Party so long as it constitutes Collateral
under this Agreement.
However, if the security interest hereby created is subordinate or inferior to a security
interest held by any third person, the certificates therefor may be held by such third person or his
agent, and in such event, the Debtor will execute and deliver to such third person or agent (a) a
notice sufficient under applicable law to perfect the transfer of the security interest herein created,
(b) such other notices or instruments as may be reasonably requested by Secured Party to maintain
Exhibit C
the existence and priority of this security interest in all Collateral now or hereafter subject to this
Agreement, and (e) instructions to such third person, which shall be irrevocable while the security
interest created in this Agreement exists as to any Collateral, to deliver to the Secured Party any
certificates therefor to which the Debtor may become entitled.
Obligations Secured
The security interest created hereby secures the following:
(a) Payment of the indebtedness evidenced by, and performance and discharge of each
and every covenant, condition, and agreement contained in, the Promissory Note, and any and all
modifications, extensions, or renewals thereof, whether hereafter evidenced by the Promissory Note
or otherwise.
(b) Performance and discharge of each and every obligation, covenant, and agreement of
Debtor contained herein.
Warranty and Representation of Debtor
4. Debtor warrants and represents that the Collateral is free and clear of any security
interests (other than the security interest herein granted), liens, restrictions, or encumbrances, and
that he has full right and power to transfer the Collateral to the Secured Party free and clear thereof
and to enter into and carry out this Security Agreement.
Events of Default
As used herein, "Event of Default" shall be any or all of the following:
(a) The failure of Debtor punctually and properly to observe, keep, or perform any
covenant, agreement, or condition required by this Agreement to be observed, kept, or performed;
(b) The failure of Debtor punctually and properly to pay the indebtedness evidenced by
the Promissory Note in accordance with the terms thereof;
(c) The making by Debtor of an assignment for the benefit of his creditors, or the
consent by Debtor to the appointment of a receiver or a liquidator of himself or of any substantial
portion of his assets, or the filing by or against the Debtor of any petition under any chapter of the
federal Bankruptcy laws unless the same shall have been dismissed within thirty (30) days, or the
seizure by a receiver, trustee, or other officer appointed by any court or any sheriff, constable,
marshal, or other similar governmental officer, under color of legal authority, of any substantial
portion of the assets of Debtor and holding possession thereof for a period of thirty (30) days; or
the assumption of jurisdiction, custody, or control of any of the assets of Debtor under the
provisions of any other now existing or future law providing for reorganization, dissolution,
liquidation, or winding up of persons or corporations, if Debtor shall not have been restored to
custody and control of such assets within thirty (30) days after the date of such assumption; or if a
final judgment for the payment of money shall be rendered against Debtor and, within thirty (30)
days after the entry thereof, such judgment shall not have been discharged or execution thereof
stayed pending appeal, or is, within thirty (30) days after the expiration of any such stay, such
judgment shall not have been discharged.
Exhibit C 2
Rights of Secured Party Upon Occurrence of an Event of Default
6. On each occurrence of an Event of Default, the Secured Party may foreclose the
security interest against all or any portion of the Collateral in any one of the ways set forth in this
Paragraph 6. After foreclosure against a portion of the Collateral, this Agreement will remain in
full force and effect as to the remaining Collateral.
Retainer of Collateral
(a) The Secured Party may retain in satisfaction of Debtor's obligation that portion of
the Collateral which has a "fair value" (as defined below) equal to the sum of indebtedness then due
and payable under the Promissory Note plus all the amounts for which the Debtor is liable to the
Secured Party under the terms of the Promissory Note or this Agreement, less any credit to which
the Debtor may be entitled as a result of the Secured Party's actual resort fully and finally effected
as to any other security securing the payment of any such indebtedness.
Fair Value of Collateral
(b) As used herein, "fair value" of the Collateral shall be determined in the manner
provided in Exhibit "B" to that certain Company Agreement of TEAM KAM MANAGEMENT
LLC, a Texas limited liability company, between the above Company and its Members dated
effective .20
Sale of Collateral
(c) Subject to the provision of Article 9.504 of the Texas Business and Commerce Code,
and further subject to the restrictions of any applicable agreement to which the Collateral is now
subject or any applicable law, the Secured Party may offer the Collateral at a public or private sale
after ten (10) days' written notice to Debtor.
Delivery of Collateral and Voting Rights
7. Except to the extent that the holder of a prior or superior security interest has the
right to hold the same, Debtor herewith delivers to Secured Party any certificates evidencing the
above described Collateral and promises to deliver any additional Collateral which may be acquired
by Debtor within seven days of such acquisition. Debtor has also delivered herewith collateral
instruments of transfer, executed in blank, covering the Collateral and promises to deliver additional
similar collateral instruments of transfer covering any additional Collateral on demand by Secured
Party.
Release of Collateral
(a) When the Promissory Note referred to in Paragraph 3(a) has been paid in full, the
Secured Party shall redeliver any certificate evidencing the collateral held by it to the Debtor, and
all obligations between the Secured Party and the Debtor under this Agreement shall thereupon
cease. The Secured Party shall also release Collateral pursuant to the provisions of Section 8 below.
Exhibit C
Distributions
(b) Until the occurrence of an Event of Default hereunder, all distributions upon the
Interest(s) constituting the Collateral shall belong to and be payable to the Debtor.
Substitution of Collateral
8. The Collateral may be released or substituted upon the following terms and
conditions:
Debtor shall have the right, at any time, to substitute certificates of deposit issued by any
State or National Bank chartered in Texas, or other security reasonably satisfactory to the Secured
Party, as security for Debtor's obligations, in substitution for all, but not less than all, of the above
described Collateral, with an aggregate face value at least equal to 110% of the then unpaid
principal balance of the Promissory Note. So long as Debtor is not in default, he shall be entitled to
receive all interest paid on said substitute Collateral,
Miscellaneous
No Waiver of Rights of Remedies
9, (a) No failure or delay by Secured Party in exercising any right, power, or privilege
hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude
any other or further exercise or the exercise of any other right, power, or privilege.
Severability
(b) Should any one or more of the provisions hereof be determined to be illegal or
unenforceable, all other provisions hereof shall be given effect separately therefrom and shall not be
affected thereby.
Notices
(c) Any notices or other communications required or permitted hereunder shall be
sufficiently given if delivered personally or sent by registered or certified mail, postage prepaid, to
for
Debtor and for Secured Party or at such other
address as shall be furnished in writing by either party to the other, and shall be deemed to have
been given as of the date so delivered or deposited in the United States mail.
Assignment by Secured Party
(d) This Assignment and the security interest created hereby shall be assignable by the
Secured Party, and shall inure to the benefit of Secured Party's heirs, executors, or administrators,
and shall be binding upon the Debtor and his heirs, executors, administrators, legal representatives,
successors, and assigns.
Exhibit C 4
Choice of Law - Venue
(e) It is the intention of the parties that the laws of Texas should govern the validity of
this Agreement, the construction of its terms, and the interpretation of the rights and duties of the
parties. This Agreement is performable in _ County, Texas.
Paragraph I Icadings
(f) Paragraph and other headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning of this Agreement or its interpretation.
Intcgratcd Agreement
(g) This Agreement constitutes the entire Agreement between the parties hereto, and
there are no agreements, understandings, restrictions, warranties, or representations between the
parties other than those set forth herein or herein provided for.
SECURED PARTY
Name.
Name:
Exhibit C
TEAM KAM MANAGEMENT LLC,
a Texas limited liability company
CERTIFICATE OF MEMBERSHIP
This certifies that SPECIMEN is a Member of, and the record
owner of an ownership interest representing a _ C__%) Sharing Percentage and
Membership Interest in, TEAM KAM MANAGEMENT LLC, a Texas limited liability company
(the "Company"), organized and existing under the Texas Business Organizations Code, and is
entitled to all of the rights and privileges and subject to all of the obligations, restrictions, and
limitations of a Member of the Company in accordance with the provisions of its Certificate of
Formation and Company Agreement as amended from time to time. All capitalized terms used
in this Certificate shall have the meanings given to them in the Company Agreement.
The transfer of the ownership interest represented by this Certificate is subject to the restrictions
set forth in the Company Agreement.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. WITHOUT SUCH
REGISTRATION, THESE SECURITIES MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED, EXCEPT UPON DELIVERY TO THE COMPANY OF AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED FOR SUCH TRANSFER, OR THE SUBMISSION TO THE COMPANY OF
SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE COMPANY THAT
ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, OR ANY
RULE OR REGULATION PROMULGATED THEREUNDER,
Dated:
WAYNE A. WILDMAN, Manager
DIANNA K. WILDMAN, Manager
Corporations Section
P.O.Box 13697
Austin, Texas 78711-3697
October 26, 2016
0.
Office of the Secretary of State
Attn: Barnes Lipscomb Stewart & Ott PLLC
Barnes Lipscomb Stewart & Ott PLLC
2500 Bee Cave Road, Building 2, Suite 150
Austin, TX 78746 USA
RE: Team KAM Enterprises Ltd.
File Number: 802569890
Carlos H. Cascos
Secretary of State
It has been our pleasure to file the certificate of formation for the referenced limited partnership. This
letter evidences the existence of the domestic entity as of the effective date noted on the certificate.
Unless exempted, limited partnerships are subject to state tax laws, including franchise tax laws.
Shortly, the Comptroller of Public Accounts will be contacting the partnership at its registered office
for information that will assist the Comptroller in setting up the franchise tax account for the
partnership. Information about franchise tax, and contact information for the Comptroller's office, is
available on their web site at Itttp://window.state.tx.tis/taxinfo/franchise/index.lit ml.
Limited partnerships do not file annual reports with the Secretary of State. However, a limited
partnership that is not required to file a public information report under the Tax Code is subject to
periodic reporting requirements with the Secretary of State. It is important for the partnership to
continuously maintain a registered agent and office in Texas as this is the address to which the
Secretary of State will send a request to file a periodic report. Failure to maintain a registered agent or
office in Texas, failure to file a change to the agent or office information, or failure to file a periodic
report when requested may result in the involuntary termination of the limited partnership.
If we can be of further service at any time, please let us know.
Sincerely,
Corporations Section
Business & Public Filings Division
(512)463-5555
Enclosure
Come visit us on the Internet at hltp.//www.sos.state.tx.us/
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: Lisa Sasin TID: 10284 Document: 696058170003
Corporations Section � G�
P.O.Box 13697
Austin, Texas 78711-3697 x�
Office of the Secretary of State
CERTIFICATE OF FILING
OF
Team KAM Enterprises Ltd.
File Number: 902569890
Carlos H. Cascos
Secretary of State
The undersigned, as Secretary of State of Texas, hereby certifies that a Certificate of Formation for the
above named Domestic Limited Partnership (LP) has been received in this office and has been found to
conform to the applicable provisions of law.
ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the
secretary by law, hereby issues this certificate evidencing filing effective on the date shown below.
The issuance of this certificate does not authorize the use of a name in this state in violation of the rights
of another under the federal Trademark Act of 1946, the Texas trademark law, the Assumed Business or
Professional Name Act, or the common law.
Dated: 10/25/2016
Effective: 10/25/2016
Carlos H. Cascos
Secretary of State
Come visit us on the internet at http://www.sos.state.tx.us/
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-I for Relay Services
Prepared by: Lisa Sasin TID: 10306 Document: 696058170003
Form 207
'Secretary of State
P.O. Box 13697
Dustin, TX 78711-3697
FAX:512/453-5709
(Filing Fee: $750
Certificate of Formation
Limited Partnership
The filing entity being formed is a limited partnership. The name of the entity is:
Filed in the Office of the
Secretary of State of Texas
Filing #: 802569890 10/25/2016
Document #: 696058170003
Image Generated Electronically
for Web Filing
,Team KAM Enterprises Ltd.
The name must contain the words "Limited Partnership," or "Limited;' or the abbreviation "L.P.; "'LP " or "lld" The name roust not be the same as,
deceptively similar to or similar to that of an existing corporate, limited liability company, or limited partnership name on file with the secretary of
',state. A preliminary check for "name availability" Is recommended,
Article 2 - Principal Office
he address of the principal office in the United States where records of the partnership are to be kept or made
available is set forth below:
,12221 FM 476, Somerset, TX, USA 78069
i _ _ - Article 3 — Regis
'I —A. The Initial registered agent is an organization (cannot be limited partnership named above) by the name of:
i
OR
;RB. The initial registered agent is en individual resident of the state whose name is set forth below:
;Name:
,Wayne A. Wildman
,C, The business address of the registered agent and the registered office address is:
'Street Address:
12221 FM 476 Somerset TX 78069
Consent of Registered Agent
11-A. A copy of the consent of registered agent is attached.
, The consent of the registered agent is maintained by the entity.
Article 4 - General Partner Information
;The name and address of each general partner are as follows:
General Partner 1: (Business Name) Team KAM Management LLC
Address: 12221 FM 476 Somerset TX, USA 78069
Supplemental Provisions / Information
- - 1
iThe attached addendum, If any, Is incorporated herein by reference.)
Effectiveness of Filing
IAA. This document becomes effective when the document Is filed by the secretary of state.
OR
r B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of Its
',slgning. The delayed effective date is:
ExeCUtion
jThe undersigned affirms that the person designated as registered agent has consented lo*tho appoinlmant. The
undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or
!4raudulent Instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of
law governing the entity to execute the filing instrument.
l9nature of General Partner 1: Wayne A. Wildman, Manager of Team KAM Manaqement LLC, General
(Partner I
FILING OFFICE COPY
Docusign Envelope ID: BBD099A5-4D44-465B-A101-8FD79C2B1B52
TEAM KAM ENTERPRISES LTD.
CONSENT OF GENERAL PARTNER
IN LIEU OF SPECIAL MEETING
The undersigned, being the President of the General Partner of Team KAM Enterprises
Ltd., a Texas limited partnership (the "Parnershir)"), consents to the following:
RESOLVED, that the General Partner authorizes the filing of a Landowner Petition for
Release from Extraterritorial Jurisdiction (the "Petition").
RESOLVED FURTHER, that Wayne Wildman, as the President of the General Partner,
is authorized and directed to execute and deliver the Petition to the applicable city
representative(s), in the name and on behalf of the General Partner of the Partnership, in order to
fully carry out the intent and accomplish the purposes of the resolutions adopted hereby (such
determination to be evidenced conclusively by the taking of such actions, and the execution of
such Petition), and that all such actions heretofore taken by him be, and hereby are, ratified.
Dated as of October 17, 2024.
GENERAL PARTNER:
TEAM KAM MANAGEMENT LLC
By:FDoeuftntd bY:
�ti' ,� 4)
yne'�ildman, President
Solo Page
Exhibit B
Legal Description and Map
Resolution No.
Release of Petition Area
2023028145 Page 3 of 7
Exhibit "A"
Property Description
Tract One:
BEING 2.252 ACRES OUT OF THE WOODRUFF STUBBLEFIELD SURVEY ABSTRACT NO.
556 IN WILLIAMSON COUNTY, TEXAS, AND BEING THAT SAME TRACT OF LAND
CONVEYED TO ROGER E. CALUETTE AND PATTI ANN MCCUE IN VOLUME 1041, PAGE
151 OF THE WILLIAMSON COUNTY OFFICIAL RECORDS, SAID TRACT OF LAND BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH REBAR FOUND AT THE SOUTHEAST CORNER OF SAID
CALUETTE AND MCCUE TRACT OF LAND, BEING ALSO THE NORTHEAST CORNER OF
THAT CERTAIN 2.25 ACRE TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS
INTERNATIONAL, INC. IN VOLUME 1155, PAGE 771 OF THE WILLIAMSON COUNTY
OFFICIAL RECORDS, BEING ALSO AT THE NORTHEAST CORNER OF THAT CERTAIN
INGRESS/EGRESS EASEMENT REFERENCED IN VOLUME 963, PAGE 788, CORRECTED IN
VOLUME 1041, PAGE 151 AND IN VOLUME 1155, PAGE 771, AND BEING IN THE WESTERLY
LINE OF THAT CERTAIN 50 FOOT INGRESS/EGRESS EASEMENT DESCRIBED IN
VOLUME 874, PAGE 633 AND VOLUME 742, PAGE 214, AND BEING A WESTERLY LINE OF
THAT CERTAIN 20.197 ACRE TRACT OF LAND CONVEYED TO CONTRACTORS
ENGINEERS INTERNATIONAL, INC. IN VOLUME 1644, PAGE 912, ALL OF THE
WILLIAMSON COUNTY OFFICIAL RECORDS FOR THE SOUTHEAST CORNER AND
PLACE OF BEGINNING HEREOF FROM WHICH POINT A 1/2 INCH REBAR FOUND IN THE
NORTHERLY RIGHT-OF-WAY LINE OF STATE HIGHWAY NO. 29 AT THE SOUTHEAST
CORNER OF SAID INGRESS/EGRESS EASEMENT BEARS SOUTH 16031'03" EAST, 395.07
FEET;
THE, WITH COMMON LINE OF HEREIN DESCRIBED TRACT AND CONTRACTORS
ENGINEERS INTERNATIONAL, INC. 2.25 ACRE TRACT OF LAND, THE FOLLOWING 2
COURSES:
SOUTH 73024'53" WEST, 19.32 FEET TO A 1/2 INCH IRON ROD FOUND AT THE
NORTHWEST CORNER OF SAID INGRESS/EGRESS EASEMENT FOR AN ANGLE POINT
HEREOF;
SOUTH 73°29'47" WEST, 229.27 FEET TO A 1/2 INCH IRON ROD FOUND AT THE
SOUTHWEST CORNER OF SAID CALUETTE AND MCCUE TRACT OF LAND, BEING ALSO
THE NORTHWEST CORNER OF SAID CONTRACTORS ENGINEERS INTERNATIONAL,
INC. 2.25 TRACT OF LAND, AND BEING IN THE EASTERLY LINE OF THAT CERTAIN 4.50
ACRE TRACT OF .LAND CONVEYED TO T.P. VINGO IN VOLUME 837, PAGE 601OF THE
WILLIAMSON COUNTY OFFICIAL RECORDS, FOR THE SOUTHWEST CORNER HEREOF;
THENCE, WITH THE COMMON LINE BETWEEN HEREIN DESCRIBED TRACT AND SAID
VINGO TRACT OF LAND, NORTH 17°04'59" WEST, 388.15 FEET TO A 5/8 INCH IRON ROD
FOUND AT THE NORTHWEST CORNER HEREOF ALSO BEING THE NORTHWEST
2023028145 Page 4 of 7
CORNER OF SAID VINGO TRACT OF LAND, AND BEING IN THE SOUTHERLY LINE OF
THAT CERTAIN 12.47 ACRE TRACT OF LAND CONVEYED TO THOMAS DOERFLERIN
VOLUME 837, PAGE 718 OF THE WILLIAMSON COUNTY OFFICIAL RECORDS FOR THE
NORTHWEST CORNER HEREOF;
THENCE, WITH THE COMMON LINE OF HEREIN DESCRIBED TRACT AND SAID
DOERFLER TRACT OF LAND, NORTH 72-14-40" EAST, AT A DISTANCE OF 23318 FEET
PAST A 1/2 INCH REBAR FOUND AT THE NORTHWEST CORNER OF THE
INGRESS/EGRESS EASEMENT INCORRECTLY DESCRIBED IN VOLUME 963, PAGE 768 OF
THE WILLIAMSON COUNTY OFFICIAL RECORDS AND CONTINUING FOR A TOTAL
DISTANCE OF 253.12 FEET TO A 1/2 INCH IRON ROD FOUND AT THE NORTHEAST
CORNER HEREOF BEING ALSO THE SOUTHEAST CORNER OF SAID DOERFLER TRACT
OF LAND, AND BEING IN THE WESTERLY LINE OF SAID 50 FOOT INGRESS/EGRESS
EASEMENT AND SAID CONTRACTORS ENGINEERS INTERNATIONAL, INC. TRACT OF
LAND FOR THE NORTHEAST CORNER HEREOF;
THENCE, WITH THE COMMON LINE HEREIN DESCRIBED TRACT AND SAID
CONTRACTORS ENGINEERS INTERNATIONAL, INC. TRACT OF LAND, BEING ALSO THE
WEST LINE OF SAID 50 FOOT INGRESS/EGRESS EASEMENT, SOUTH 16°26'36" EAST,
393.63 FEET TO THE PLACE OR BEGINNING AND CONTAINING 2.252 ACRES OF LAND,
MORE OR LESS.
Tract Two:
INGRESS/EGRESS EASEMENT:
BEING 0.174 ACRES OUT OF THE WOODRUFF STUBBLEFIELD SURVEY ABSTRACT NO.
556 IN WILLIAMSON COUNTY, TEXAS, AND BEING A PORTION OF THAT CERTAIN 2.25
ACRE TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL,
INC. IN VOLUME 1155, PAGE 771OF THE WILLIAMSON COUNTY OFFICIAL RECORDS,
AND DESCRIBED AS INGRESS/EGRESS EASEMENT IN A DEED TO ROGER E. CALUETTE
AND PATTI ANN MCCUE IN VOLUME 1041, PAGE 151 OF THE WILLIAMSON COUNTY
OFFICIAL RECORDS, SAID TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED
BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2" REBAR FOUND AT THE NORTHEAST CORNER OF SAID 2.25 ACRE
TRACT OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL, INC.
BEING ALSO THE SOUTHEAST CORNER OF SAID CALUETTE AND MCCUE TRACT OR
LAND, AND BEING IN THE WESTERLY LINE OF THAT CERTAIN 50' INGRESS/EGRESS
EASEMENT DESCRIBED IN VOLUME 874, PAGE 633 AND VOLUME 742, PAGE 214 (CALLED
BERRY LANE), AND BEING A WESTERLY LINE OF THAT CERTAIN 20.197 ACRE TRACT
OF LAND CONVEYED TO CONTRACTORS ENGINEERS INTERNATIONAL, INC. IN
VOLUME 1544, PAGE 912, ALL OF THE WILLIAMSON COUNTY OFFICIAL RECORDS FOR
THE NORTHEAST CORNER AND PLACE OF BEGINNING HEREOF;
2023028145 Page 5 of 7
THENCE WITH THE COMMON LINE BETWEEN SAID CONTRACTORS ENGINEERS
INTERNATIONAL, INC. 2.25 ACRE TRACT OF LAND AND SAID CONTRACTORS
ENGINEERS INTERNATIONAL INC. 20.197 ACRE TRACT OF LAND, BEING ALSO THE
WEST LINE OF SAID 50' INGRESS/EGRESS EASEMENT, S 16° 32' 19" E 394.93 FEET TO A
1/2" REBAR FOUND IN THE NORTHERLY R.O.W. LINE OF STATE HIGHWAY NO. 29 AT
THE SOUTHEAST CORNER OF SAID INGRESS/EGRESS EASEMENT HEREIN DESCRIBED,
BEING ALSO THE SOUTHEAST CORNER OF SAID 2.25 ACRE TRACT OF LAND AND BEING
THE MOST SOUTHERLY SOUTHWEST CORNER OF SAID CONTRACTORS ENGINEERS
INTERNATIONAL, INC. 20.197 ACRE TRACT OF LAND, FOR THE SOUTHEAST CORNER
HEREOF;
THENCE WITH THE NORTHERLY R.O.W. LINE OF STATE HIGHWAY 29' (R.O.W. VARIES),
BEING ALSO THE SOUTHERLY LINE OF SAID 2.25 ACRE TRACT OF LAND, S 720 25' 01" W
19.05 FEET TO A 1/2" REBAR FOUND AT THE SOUTHWEST CORNER OF SAID
INGRESS/EGRESS EASEMENT HEREIN DESCRIBED FOR THE SOUTHWEST CORNER
HEREOF;
THENCE CROSSING SAID 2.25 ACRE TRACT OF LAND, BEING ALSO THE WESTERLY
LINE OR THE HEREIN DESCRIBED INGRESS/EGRESS EASEMENT, N 15° 34' 41" W 395.36
FEET TO A 1/2' REBAR FOUND IN THE NORTHERLY LINE OF SAID 2.25 ACRE TRACT OF
LAND, BEING ALSO IN THE SOUTHERLY LINE OF SAID CALUETTE AND MCCUE TRACT
OF LAND, FOR THE NORTHWEST CORNER HEREOF.