MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (“Agreement”) is entered into effective as of January 1, 2021, by and between Riverwalk Capital III, LLC, a Texas limited liability company (the “Company”), Michael Troy (the “Buyer”) and Cole Wollak (the “Seller”). The Buyer and the Seller are collectively referred to herein as the “Parties”.
WHEREAS, Seller is currently the owner of a 2.50% membership interest in the Company (the “Purchased Interest”); and
WHEREAS, Seller desires to sell all of such membership interest to the Company in exchange for $3,125.00 (the “Purchase Price”); and
WHEREAS, the Buyer desires to purchase such membership interest for such consideration.
NOW THEREFORE, for and in consideration of the following, the parties hereby agree as follows:
1. Purchase of Membership Interest. Seller hereby sells, assigns, transfers and conveys to the Buyer the Purchased Interest in exchange for the Purchase Price in cash in immediately available funds.
2. Representations and Warranties of Seller. Seller hereby represents and warrants to the Company as follows:
(a) Seller is the lawful and beneficial owner of the Purchased Interest and has good and valid title to the Purchased Interest free and clear of any lien, claim, security, interest, option, right, or encumbrance of any nature whatsoever.
(b) The Purchased Interest is free and clear of any restrictions on transfer (other than restrictions under Company Agreement of the Company, the Securities Act, and state securities laws), taxes, mortgage, pledge, lien, encumbrance, charge, or other security interest, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any interests of the Company (other than this Agreement) or that restricts the Seller’s ability to transfer its Purchased Interest to the Company. Seller has the full legal right, power and authorization and any approval required by law, to sell the Purchased Interest as provided in this Agreement, the transactions herein contemplated are in compliance with all applicable laws.
(c) The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any interest of the Company.
(d) Neither the execution and delivery of this Agreement by Seller nor the consummation of the transactions herein contemplated by Seller requires any consent, approval, authorization or other order of any court or other person, or will conflict with or constitute a breach of, or a default under any agreement, policy or other instrument to which Seller is a party or by which Seller is bound or to which the property or assets of Seller is subject.
(e) The Seller holds of record and owns beneficially the Purchased Interest and such amount is the entire ownership interest in the Company held by Seller. Both parties agree that any options, warrants, or other right to acquire equity in the Company or profits interests, whether vested or unvested, is hereby terminated.
(f) The Seller hereby confirms that he has received all proceeds related to the Purchased Interests due and payable prior to transfer and waives all rights to any additional distributions, carried interest or other economic or other interests in the Company, including without limitation all management or other fees.
a) In consideration of the payments, terms and conditions stated herein, the Company, the Buyer, each other member of the Company, and the Company’s affiliates and their successors and assigns (all of the foregoing hereinafter called the “Releasing Parties”), do hereby release, remise, acquit and forever discharge the Seller and his successors and assigns, (all of the foregoing hereinafter called the “Released Parties”), from any and all obligations, liabilities, actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter arising, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties prior to and including the date of execution hereof, and in any way directly or indirectly arising out of or in any way connected to this Agreement (all of the foregoing hereinafter called the “Released Matters”). The Releasing Parties fully acknowledge that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged claims, injuries or damages arising in connection with the Released Matters. THE FOREGOING RELEASE INCLUDES ACTIONS AND CAUSES OF ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, DAMAGES AND EXPENSES ARISING AS A RESULT OF THE NEGLIGENCE OR STRICT LIABILITY OF ONE OR MORE OF THE RELEASED PARTIES.
b) Seller does hereby RELEASE, ACQUIT, AND FOREVER DISCHARGE the Company, the Buyer, each other member of the Company, and the Company’s affiliates and their successors and assigns (all of the foregoing hereinafter called the “Released Parties”), from any and all (i) obligations related to the payment of any distributions, fees, carried interest payments, proceeds from any partnership for which the Company has any interest, or other economic interest and (ii) civil claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, remedies, offsets, rights, actions, and causes of action of any nature whatsoever, whether contract or tort, whether at law or in equity, whether presently possessed or possessed in the future, whether known or unknown, whether now or in the future recognized by decisional law, whether presently accrued or to accrue hereafter, whether foreseen or unforeseen, whether or not heretofore asserted, which result from, arise out of, pertain to, relate to, are based upon, or are connected with, directly or indirectly, the Company.
- Buyer assumes and agrees to be solely responsible for and obligated to perform any and all of the duties, liabilities and obligations of Seller under the Operating Agreement from and after the Effective Date.
4. Remedies for Breaches of This Agreement.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND RELEASE. ALL OF THE REPRESENTATIONS AND WARRANTIES OF THE SELLER CONTAINED IN SECTION 2 ABOVE AND THE RELEASE CONTAINED IN SECTION 3 ABOVE SHALL SURVIVE THE CLOSING HEREUNDER.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER. IN THE EVENT SELLER BREACHES ANY OF HIS REPRESENTATIONS, WARRANTIES, AND COVENANTS CONTAINED HEREIN, AND PROVIDED THAT THE COMPANY OR THE BUYER MAKES A WRITTEN CLAIM FOR INDEMNIFICATION AGAINST SELLER, THEN SELLER AGREES TO INDEMNIFY AND HOLD HARMLESS THE BUYER, THE COMPANY, AND ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (THE “BUYER INDEMNIFIED PARTIES”) FROM AND AGAINST ANY ADVERSE CONSEQUENCES ANY SUCH BUYER INDEMNIFIED PARTY SHALL SUFFER THROUGH AND AFTER THE DATE OF THE CLAIM FOR INDEMNIFICATION RESULTING FROM, ARISING OUT OF, RELATING TO, IN THE NATURE OF, OR CAUSED BY SUCH BREACH.
(c) Procedure. Any Buyer Indemnified Party seeking to be held harmless, defended and indemnified in accordance with the provisions of Section 4(b) shall promptly notify the Seller (“Indemnifying Seller”) of any claim or suit brought against the Buyer Indemnified Party in respect of which the Buyer Indemnified Party intends to invoke the provisions of this Section 4, although the failure to so notify Indemnifying Seller shall not release Indemnifying Seller from its obligations under this Section 4 unless Indemnifying Seller shall have been materially prejudiced by such failure. Indemnifying Seller shall indemnify, hold harmless and defend the Buyer Indemnified Party, as above provided, and keep the Buyer Indemnified Party fully informed on a current basis of the defense and/or settlement of such claim or suit. The Buyer Indemnified Party shall reasonably cooperate in the defense of such claim or suit and shall have the right, but no obligation, to participate in the defense thereof with counsel of its choice at its own expense.
(d) Tax Consequences. Each Party shall be responsible for their respective tax obligations with respect to the transfer of Seller’s interest under this Agreement, as required by applicable state tax laws.
5. Consent to be Bound; Right of Repurchase. The Buyer hereby agrees to be bound by the Company Agreement with respect to the Purchased Interest pursuant to Section 9.5(c) of the Company Agreement. The Purchased Interests shall be subject to the repurchase rights set forth in Section 10.4 of the Company Agreement; provided, however, the Right of Repurchase pursuant to Section 10.4(a) shall lapse with respect to the first 25% shall have already lapsed and the next 15% shall lapse on June 20, 2020 and thereafter will lapse with respect to an additional 15% of the Purchased Interests, when the Buyer completes each of the next subsequent two years of continuous Service (as defined in the Company Agreement) following June 20, 2020 and then with respect to an additional 10% of the Purchased Interests, when the Buyer completes each of the next subsequent two years of continuous Service, and with respect to an additional 2.5% of the Purchased Interests, when the Buyer completes each of the next subsequent four years of continuous Service, until the Right of Repurchase lapses with respect to all of the Purchased Interests after ten years of continuous Service.
6. Further Assurances. Seller agrees to take all actions reasonably necessary to effectuate the intents and purposes of this Agreement.
7. Entire Agreement. This Agreement constitutes the full agreement of the parties hereto with respect to the subject matter hereof and supersedes all previous agreements, statements and understandings, written or oral, with respect to the subject matter hereof.
8. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS.
9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of all parties hereto and their successors, representatives and assigns.
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EXECUTED, effective as of the date set forth above.
Acknowledged and agreed:
Riverwalk Capital III, LLC,
a Texas limited liability company
Michael Troy, Manager
CONSENT TO SALE:
The undersigned, which constitute all of the other members of the Company, hereby consent pursuant to Section 9.1 of the Company Agreement to the transfer contained in this Agreement and consent pursuant to Section 9.2 to Michael Troy as a successor to all of Cole Wollak’s interest in the Company.
The undersigned, joins in the execution of this Agreement, as Seller’s spouse, in recognition of any community property rights they may have regarding the Purchased Interest and the Purchase Price, and agrees to be bound by all of the terms and conditions of this Agreement.
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