Operating Agreement

 

This Operating Agreement (the “Agreement”) made and entered into this 1st day of XXX (the “Effective Date”), BETWEEN:

XXX Address, and

XXX Address

(individually the “Member” and collectively the “Members”)

BACKGROUND:

  1. The Members wish to associate themselves as Members of a limited liability company.
  2. The terms and conditions of this Agreement will govern the Members within the limited liability company.

IN CONSIDERATION OF and as a condition of the Members entering into this Agreement and other valuable consideration, the receipt and sufficiency of which is acknowledged, the Members agree as follows:

Formation

  1. By this Agreement, the Members form a Limited Liability Company (the “Company”) in accordance with the laws of the State of XXX. The rights and obligations of the Members will be stated as in the XXX Limited Liability Company Act (the “Act”) except as otherwise provided.

 

Term

  1. The Company will continue until terminated as provided in this Agreement or may dissolve under conditions provided in the Act.

 

Place of Business

  1. The Principal Office of the Company will be located at Insert Company Address or such place as the Members may from time to time designate.

 

Place of Work

  1. Person 1 will work from XXX.
  2. Person 2 will work from XXX.

 

Utmost Good Faith

  1. Members are supposed to ensure that they act in utmost good faith when conducting any business in relation to the Company. In case of any doubt, Members agree to consult Person 1.

 

Agreed Terms

  1. Person 2 shall be the Chief Executive Officer (CEO) of the Company.
  2. Person 3 shall make all necessary appointments. He shall have total discretion to hire or dismiss employees without consulting anyone.
  3. Only Person 2 can move funds.
  4. Person 2 has the authority to hire management team, staff as well as external advisors and can sign contracts without anyone else’s signature.
  5. Person 2 salary will be $_____ per month.
  6.  Person 1 salary will be $_____ per month.
  7. Strategic decisions will be made by Person 1.

 

Capital Contributions

  1. Person 2 shall contribute $_____ to the Company.
  2. Person 3 shall contribute $_____ to the Company.

 

Allocation of Profits/Losses

  1. Subject to the other provisions of this Agreement, the Net Profits or Losses, for accounting purposes, will accrue to and be borne by the Members in proportion to the Members’ shares in the Company.
  2. Distributions to Members will be made in proportion to the Members’ shares in the Company.

 

Additional Contributions

  1. Any advance of money to the Company by any Member in excess of the amounts provided for in this Agreement or subsequently agreed to, will be deemed a debt due from the Company rather than an increase in the Capital Contribution of the Member. This liability will be repaid with interest at such rates and times to be determined by a majority of the Members. This liability will not entitle the lending Member to any increased share of the Company’s profits nor to a greater voting power. Repayment of such debts will have priority over any other payments to Members.

 

Books of Account

  1. Accurate and complete books of account of the transactions of the Company will be kept in accordance with generally accepted accounting principles (GAAP). An accounting firm will audit and sign off annual accounts with the objective of staying compliant with the principles. There will be an option to go public within 3 years.

 

Duty of Loyalty

  1. While a person is a Member of the Company, that person will not carry on, or participate in, a similar business to the business of the Company within any market regions that were established or contemplated by the Company before or during that person’s tenure as Member.

 

Admission of New Members

  1. A new Member may only be admitted to the Company with a unanimous vote of the existing Members.
  2. New Members shall only provide Capital Investment and shall have no voting rights and shall not be involved in any managerial operations of the Company.
  3. The new Member agrees to be bound by all the covenants, terms, and conditions of this Agreement, inclusive of all current and future amendments. Further, a new Member will execute such documents as are needed to affect the admission of the new Member. Any new Member will receive such business interest in the Company as determined by a unanimous decision of other Members.

 

Voluntary Withdrawal of a Member

  1. Any Member will have the right to voluntarily withdraw from the Company. Written notice of intention to withdraw must be served upon the remaining Members at least six months prior to withdrawal.
  2. The voluntary withdrawal of a Member will have no effect upon the continuance of the Company.
  3. It remains incumbent on the withdrawing Member to exercise this dissociation in good faith and to minimize any present or future harm done to the remaining Members as a result of the withdrawal.

 

Involuntary Withdrawal of a Member

  1. Events leading to the involuntary withdrawal of a Member from the Company will include but not be limited to: death of a Member; Member mental incapacity; Member disability preventing reasonable participation in the Company; Member incompetence; breach of fiduciary duties by a Member; criminal conviction of a Member; Operation of Law against a Member or a legal judgment against a Member that can reasonably be expected to bring the business or societal reputation of the Company into disrepute. Expulsion of a Member can also occur on application by the Company or another Member, where it has been judicially determined that the Member: has engaged in wrongful conduct that adversely and materially affected the Company’s business; has willfully or persistently committed a material breach of this Agreement or of a duty owed to the Company or to the other Members; or has engaged in conduct relating to the Company’s business that makes it not reasonably practicable to carry on the business with the Member.
  2. The involuntary withdrawal of a Member will have no effect upon the continuance of the Company.

 

Dissociation of a Member

  1. In the event of either a voluntary or involuntary withdrawal of a Member, if the remaining Members elect to purchase the interest of the Withdrawing Member, the remaining Members will serve written notice of such election, including the purchase price and method and schedule of payment for the withdrawing Member’s Interests, upon the withdrawing Member, their executor, administrator, trustee, committee, or analogous fiduciary within a reasonable period after acquiring knowledge of the change in circumstance to the affected Member. The purchase amount of any buyout of a Member’s Interests will be determined as set out in the Valuation of Interest section of this Agreement.
  2. The remaining Members retain the right to seek damages from a dissociated Member where the dissociation resulted from a malicious or criminal act by the dissociated Member or where the dissociated Member had breached their fiduciary duty to the Company or was in breach of this Agreement or had acted in a way that could reasonably be foreseen to bring harm or damage to the Company or to the reputation of the Company.
  3. A dissociated Member will only have liability for Company obligations that were incurred during their time as a Member. On dissociation of a Member, the Company will prepare, file, serve, and publish all notices required by law to protect the dissociated Member from liability for future Company obligations.
  4. Where the remaining Members have purchased the interest of a dissociated Member, the purchase amount will be paid in full, but without interest, within 90 days of the date of the withdrawal. The Company will retain exclusive rights to use the trade name and firm name and all related brand and model names of the Company.

 

Valuation of Interest

  1. A Member’s financial interest in the Company will be in proportion to their Capital Contributions, inclusive of any Additional Capital Contributions.
  2. In the absence of a written agreement setting a value, the value of the Company will be based on the fair market value appraisal of all Company assets (less liabilities) determined in accordance with Generally Accepted Accounting Principles (GAAP). This appraisal will be conducted by an independent accounting firm agreed to by all Members. An appraiser will be appointed within a reasonable period of the date of withdrawal or dissolution. The results of the appraisal will be binding on all Members. The intent of this section is to ensure the survival of the Company despite the withdrawal of any individual Member.
  3. No allowance will be made for goodwill, trade name, patents or other intangible assets, except where those assets have been reflected on the Company books immediately prior to valuation.

 

Dissolution

  1. The Company may be dissolved by a unanimous vote of the Members. The Company will also be dissolved on the occurrence of events specified in the Act.
  2. Upon Dissolution of the Company and liquidation of Company property, and after payment of all selling costs and expenses, the liquidator will distribute the Company assets to the following groups according to the order of priority:
  1. In satisfaction of liabilities to creditors except Company obligations to current Members;
  2. In satisfaction of Company debt obligations to current Members; and then
  3. To the Members based on Member financial interest, as set out in Valuation of Interest section of this Agreement.

 

Governing Law

  1. The Members submit to the jurisdiction of the courts of the State of Washington for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement.

 

Force Majeure

  1. A Member will be free from liability to the Company where the Member is prevented from executing their obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Member has communicated the circumstance of the event to any and all other Members and where the Member has taken any and all appropriate action to satisfy his duties and obligations to the Company and to mitigate the effects of the event.

 

Forbidden Acts

  1. No Member may do any act in contravention of this Agreement.
  2. No Member may permit, intentionally or unintentionally, the assignment of express, implied, or apparent authority to a third party that is not a Member of the Company.
  3. No Member may do any act that would make it impossible to carry out the ordinary business of the Company.
  4. No Member will have the right or authority to bind or obligate the Company to any extent with regard to any matter outside the intended purpose of the Company.
  5. No Member may confess a judgment against the Company.
  6. Any violation of the above forbidden acts will be deemed as Involuntary Withdrawal and may be treated accordingly by the remaining Members.

 

Amendment of this Agreement

  1. No amendment or modification of this Agreement will be valid or effective unless done with the approval of PERSON 2

IN WITNESS WHEREOF the Members have duly affixed their signatures under hand and seal on this 1st day of Person 2.

 

SIGNED, SEALED, AND DELIVERED

In the presence of:

 

Witness: ______________________________ (Sign) ______________________________

Witness Name: ______________________________ Person 2 (Member)

 

SIGNED, SEALED, AND DELIVERED

In the presence of:

 

Witness: ______________________________ (Sign) ______________________________

Witness Name: ______________________________ Angela Moe (Member)

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