HOP2019-00030 CITY OF TIGARD HOME OCCUPATION PERMIT
: • • COMMUNITY DEVELOPMENT Permit#: HOP2019-00030
13125 SW Hall Blvd.,Tigard OR 97223 503.718.2421 Date Issued: 08/29/2019
T I C'A FL I� Parcel: 25111 BA 12400
Jurisdiction: Tigard
Applicant Name: Connoisseur Corporate LLC
Business Address: 9577 SW MOUNTAIN VIEW LN
Nature of Business: Fragrances, corporate office handling mail and accounting.
Business Name: Connoisseur Corporate Generate Extrn Noise: No
Sq Ft-Detached: 0 Days/Hours of Operation: M-F 8am-4pm
Sq Ft-Residence: 3000 Bus.Vehicles Garaged @ Res: No
Sq Ft-Business: 100 Outside Storage: No
SIC Code: 5090 Exterior Sign?: No
Paid Non Res Empl: No
Cust/Client @ Res: No
Pick/Deliv @ Res: Yes
Acknowledgement:
I understand this Home Occupation Permit is approved for the above described business at the specified location only,
and does not require renewal. Further, I understand that the City of Tigard Business Tax must be renewed annually in
order to maintain permit authorization.
I acknowledge that this Home Occupation Permit approval may be revoked if the conditions and standards of approval
have not been complied with and/or this home occupation is otherwise being conducted in a manner contrary to the
Tigard Community Development Code(18.742). Permit revocation due to a violation of requirement(s)of this Home
Occupation Permit cannot be renewed for a minimum period of one year. (18.742.070).
j).14/\_.
S 49P(,1(A116V
Approved By Permittee Signature
RECEIVED
City of Tigard I
,COMMUNITY DEVELOPMENT DEPARTMENT
II:^1 Home Occupation — Type I Application AUG 2 9 2019
—.... . ,,,,
CITY OF TIGARD
U
cupacion de Hagar— Solicilud To I
PLANNING/ENGINEERING
BUSINESS INFORMATION JNFORMACION DEL NEGOCIO):
Address (DinTrion).. . REQUIRED SUBMIT.CAL
4'511 EW rilomi-oon Vitw ‘Ane \it.Aid I'0 CAN ail 19 Li ELEMENTS
, n
Tax lot number(Ntimeny de lote): REQULSITO,S`PARA APLICAR
Business name (Nombre del"(06): CO ni.)-6‘Sc?-1,)r e-O(QO(ct-i-t2- LLC-/ 0 Owner's Signature/Written
Business phone(Tel del negorio): SO ''' 5611 - 4611 9 Authorization
Firma del&onto/Autoriveion por esctito
#of non-resident employees (#de empleados no-habitat/es): 0
0 Business License Fee Paid
Pagar atota de liceneia de nexocio
Detailed description of business:(Attach additional sheets if necessary)
(Desrion detalladd del negotio.Atiadir mits boys si es necesario) 0 Hume Occupation Fee Paid
Xrakefa.riCt2 fl (trPOCCkke.,. Offite42,-- \-\00\aeltr, Pagar motet de Oct/parkin de Hogar
Jetca
J 1,4
MM. k4 cr-Ou rvi-A el .
*If owner and applicant are different
people: (1)the applicant must be the
purchaser of record or a lessee in
Pica,e Ica,c 1,,ank(NI-4n cc 44-pa•ult eglano,,,,bhoicoi
possession of written authorization from
Translation oicietailed business description: the owner or an agent of the owners OR
(2)the owner(s)must sign this application.
*Si el duefio y el solicitante son personas
diferentes:(I) el solicitante dehe set.el
APPLICANT*(3 01 1 comprador de tegistro a ci inquilino con
Name(Nombre): Af\arelo Tones autorikaeinn par escrita del ditch()ode an
agente del propietario,0(2)el dueria a
Address*(Direccithi): 9691 510 InatVkilmn VieAk) 1,o„.n, Je, agente delve firmar esta solicitud,
tt81tif-t OCI- GitrlAall
i n
Phone gel): 50 - 519 g 7 7 9 FOR STAFF USE°NIA'
Email:
PARA USO DEL PERSONAL
CO Art0 I 6S core-On e_efVtrf-A‘;'Yes m.a,k‘ e_._o rn
Case No(s):
PROPERTY OWNER/DEED HOLDER(S)*
Related Case No(s):
1)UE0 DE L.4 PRONEDAD 0 PROPIETARIO 1)1. I_ ( RIR"R. iS *
hi
\pplicanon Fee: I %, • • •
Same as Applicant (1,gual at,Soltettantet
Applicituon Accepted:
Owner 1(Dwell.° 1)
Name (Nombre): Byj
: 4)1/4-' Date: `• 4.- -I-1
Address(Dime-inn): Date Determined Complete:
Phone (Tel):
By: fiS.C. _Date: e-14 tii
Email: Translation of Business Description:
Owner 2 or Agent(Dank 2 o.Agente): By:
. --- Date:
Name (Nombre):
1:Comm=L-;,De,ayilmcnt;Land Use,\.pplwAt OGIS it
02jemi nd TempLites,Lird tw ‘prig•gmmt,
Address(Di/mit/it): Ro,723/24)16
Phone (Tel):
City ofTigard * 13125 SW Hall Blvd. • Tigard,Oregon 97223 * www.tigard-or.gov • 503-718-2421 - Page 1 of3
BUSINESS DATA— Applicant please answer all items in this section
DATOS DEL NEGOCIO —Solicicanie porfisror conies-le iodos los JeAmentos de esta wan
Business type code(business license) Space dedicated to business: Residence Area-(square feet):
Cddigo de negocio(de&Wirth de negodo) Espacio tied/cads a/negocio: „,-irea de Residencia- (pies madrados):
0atO l 0 0 (sq.ft./pies rmadracloi) SOCO (sq.ft./pies eitatirados)
Detached building? :Wes(SI) X No #of business vehicles garaged at Will customers/clients visit residence?
(E'dOcio.reparado?,) residence: 0 ciClientes sr/sitar/2n In resideswia?
#de velthilos pad:itso del negocio gne se
If yes,provide sq. ft. 0 Yes(Si) rg No
estaciollaran en la resident/a?
(Si es s4 (.7ccintos pies diatlimlos.
.. .
Deliveries/pick-ups-maximum 3/week? Days/hours of operation; Outside storage? Exterior sign?
hocks/damp pagnetelth-oinxim, 3,I srvana? Dias/bows de operation: ,Allnacenamitono extedor? 11-thero en d exterior?
MOV1,660‘ - F tt(-
Yes(St) f) El Yes(Ai) A No - 0 'Yes IS/) KNo.
cal\Vrk- 4-PYY)
,..
INFORMATION ABOUT APPROVAL STANDARDS
(4dapieel Iron'Derelopeneot Code Cbapter/S. '50)
Please check-off V each statement to confirm you have read and understand the following,:
Whoe c obtain and operate a business with a Home Occupation Permit?
c.._.i Only the principle occupant(s)of a dwelling can obtain and run a business out the home.[lowlier is not the occupant,the occupant must obtain
approval from the owner or an agent of the owner to apply for a HOP.
Can I blve employees on the premises?
L. No.Non-resident employees or volunteers of the occupation business may NOT do work on the property.
Can I tO'clients at my home?
(.'7(2_, No.Type I Home Occupations do not allow any clients or customers to visit the home,3 Type II Home Occupation is necessary to allow this
type of use.
Can I refeive deliveries at my home?
Yes,a maximum of three business related deliveries are allowed per week.
How caly use the property for the business?
IM Any space dedicated for the business cannot be more than 528sq ft.,nor can it exceed 25%of the total residential area.
4/9 activities of the business must remain entirely within the dwelling.
1.r.:o exterior storage of materials is allowed.
bl If an accessory detached structure is used for the business,it must meet state building code requirements and cannot change the classification of
the dwelling unit in accordance with the state building code.
What about parking and business vehicles?
( One commerdally licensed business vehicle is allowed to iv stored on the property.The vehicle cannot weigh more than.75 tons.
LY The business cannot require any on or off-street parking that would exceed what is already required for the dwelling,
Howroiy HOP's can be operated from one home?
.._,J More than one business can be operated within a dwelling,but each business occupation must obtain a separate HOP permit.in addition,the
total combined area used for all Home Occupations cannot exceed 52.8sq.ft.or occupy more than 25%of the residential area.
NO3 /(The following activities are prohibited with any home occupation:
L. Storage and/or distribution of toxic or flammable materials,and spray painting or spray finishing operations that invoke toxic or flammable
materials that in the judgment of the fire marshal pose a dangerous risk to the residence,its occupants,and/or surrounding propenies.
(Individuals engaged in home occupations shall make available to the fire marshal for review the material safety data sheets that pertain to all
potentially toxic and/or flammable materials associated with the use/
,--‘f
Auto body repair and painting
Ongoing mechanical repair conducted outside of an entixely..enclowd building
junk and salvage operations.
15/. Storage and/or sale of fireworks.
/'rf...V )flerisive noise,vibration,smoke,dust,odors,heat or glare noticeable at or beyond the property line resulting from the operation.
(1 ,
___; Exterior signs that identify the property as a business location.
City ofTigard * 13125 SW Hall Blvd. • Tigard,Oregon 97223 * Ntww.dgard-or.gov • 503-718-2421 • Page 2 af3
INFORMAACION SOBRE LAS CONDICIONES DE APROBACION
( Idaptaclo de lir.re r err,e S.'{if)del coditio S< elesrrrtrtllrr;
Pot favor nrarquc V cada frase p.rra swath-mar qui;Ic:3,6 y enteridio to siguiente:
dQuien puede ohtenery operar an nragocio con on perntiso de ocupacion de hogar?
leiainentr los halntontes principales de una ri+senda pueden,rdgrririr 1 operas lot negrrrio desde el memo begat Si,/(krone no ct el habitank,el balritanrte Selye nlstentr ci
avnsentimientn del diretio n'agenic del dente party solicitor on p,rmr ro ole oniparidit.
dPuedo tener emplcados en la propiedad?
I ) No.l.os enepleados no-1 abitanies o rxrlantaries rel negodn NO pwdrn trabiiar desdr rl ltopm
„Pueda atender clientes en mi hogar.?
L No.L-rt,ocrcpationes-rip,'n no perovitru:gue las rlientes rhNerr el&gar,.Ce roprie e toi per nisn Sr()ovation de( ogar aapo ll para este aro.
.Puedo recibir ciorrespondcncia de paqueteria en mi hogar?
Si,se permiten un nnrit,mo dr sirs en/legit.de corral pans senrrnra parr etre;cie.
dCoino puedo urilizar la propierlad para in ernpresa?
L C• ualquier r.paeii drdirado ai iso de/rre3nrio,no puede orepar cods de 521f pies cuadrados,ui puede exreder 2.5')/O del erect total de la re'sidenria
Todas las actindudes de hi empress drben pen-nuclear canrpleiameete dcntrn de Ir rlriorei<r.
(
N• o se petmite el alrnarenam/ento de toatrriules airier('delhoar:
0 Si usa sot edifice.*ccsrsorio independIcnic parr ni negorin,este dere turriphr son el etaligo eitatal de construction r no puedecauser air eambin a la tiaec/iencida de In
cirieada de awerdo coati rodigo eitdta/.It coasieacndn.
crY qui hay del estacionamiento y vehiculos para el use del negocio?
L.: S• olo an retire/to cnrxercialnrente anrdit rdo prude see estacionude ere In propiednet 1.1 rtehiarlo no puede peace mals tie.75 tonelarlas,
1-.11 nexocio no del*regnetir esfacionamiento denim o lrrera-de la pnpiedad en cantidades orris all i do le grrr yea requiem parr tura residencia.
rCusntos permisos de Ocupacidn de Hagar(HOP)se pueden tenet en una vivienda?
,Se pude operas anis de nil ne oar&Tiro Sc into ill undo.pear eaau negnrin retrsita n/teirer.sa propin penury;de ncuparidn OOP),.-1demris,e1 dna total gioc si Indite
pare rodos los ucj oras no prude ser noir de 528 pies tcradr dos n red del 2.5 o del inn resilentiall.
NOTA; Se prohiberr las actividades siguientea en unit ocupacidn de hogar.•
.-11matenanarirrrto /n rink/bluing de ma/eriaks td ieo o rtllimiaf>kr,ni oprrae/ones de pintura en arresnl o de acalrarin per pu/r e itieckn qne betpiirpeen materiales tdticos
o inflaurables Brie,a ynecot del marisrat da faeger,anus/Yrryrin un iitrg0 peligtoso f=art/t residentia,airs ocu antes r i i p s/ird adei rrtranas. (Los indirieIuos rrspot/sa1s/es per
la oornpabon dr bogar piiulrtin a rlispostaon de/mat heal de prep istbras eon his dates de se,urrdael df s idos los rnatrriairr potrnerilmtnte tn.vuorr Jo inflacnables asochidos
�— am el tuxedo.)
Reparuaon r ptinhrra de auconineiles,'
lirpnraridn niecuuird fircuentemente leatizaeIa a/inra d=nor et/clic-its amp/eta/Neale remade
Operations do obeli era;"rrarvrn de twalerrnles.
C ,llAramuumierrin;bo marc de facies artificidlcs
0
Ridder otinsiros,eibncreerrea,borne,pansy,°kers.en/or o deslumhrrurilnli epee se rrnten dark o ads al/i Sc la linea ole prepriedrrd mwsidtontc del negocio,
Amairies/lroves eviction's qac idrniifrgnen In prep/clad roans an btpsr d. rrc){ocio:
SIGNATURE(S)—FIRMA(S)
I(applicant)hereby certify that I have read and understand the above conditions and standards for the operation of a home occupation.I
acknowledge that this home occupation approval may be revoked if the above conditions and standards have not been complied with
and/or the home occupation is otherwise being conducted in a manner contrary to the Tigard Community Development Code((8-760),
Revocation due to a violation of the home occupation requirements)cannot be renewed for a minimum period of one year(18.00.0 st).
Yo el solicirante)ceruticu poi la presente.que he leido v entiendo las condiciones y cstandares anteriores para et tuncumanrientu de una ocupaciOn de
hogar.Reconozco qucc cots aprobacrcin de ocupaciOn de hogar puede ser revocada si las condiciones y las normas anredichasno se ban cumplido p/o la
ocupaciOn de hogar se cs0 llevando a caber de unu n ancra corm-aria al ca digo de desarrollu de la comunidad de Tigard(18,-60).IA anuLictin debido a
una viola 'on de lo. +=9uisitos de la ocupaeion de i ogar no se puede renovar pot un period()minimo de un Euro(18.700 ift!,1) Q
•
A plicant's Signall re(Irtnn,t diiSol/citantei Print name(Nombre) Date(I'ee cif
Owner I Signature(I'i ma del Duel& 1) Print name(,\ombre) Date(l cd )
Owner 2 ut<\gent Signature ;P;srna del Dtrnw?0 'toile) Print name(Nombre) Date(Ficba)
City ofTigard • 13125 SW Hall Blvd. • Tigard,Orcgon 97223 • w1c'w.t Bard-or.gc>v • 303-711-2421 • Page 3of3
ARTICLES OF ORGANIZATION
Corporation Division E-FILED
*,41:11Jun 06, 2016
www.filinginoregon.com OREGON SECRETARY OF STATE
REGISTRY NUMBER
122257892
TYPE
DOMESTIC LIMITED LIABILITY COMPANY
1. ENTITY NAME
HYPERFIGHT HOLDINGS, LLC
2. MAILING ADDRESS
0/0 JAMES BRUCE
7420 SW BRIDGEPORT ROAD SUITE 101
PORTLAND OR 97224 USA
3. NAME &ADDRESS OF REGISTERED AGENT
JAMES BRUCE
7420 SW BRIDGEPORT ROAD
SUITE 101
PORTLAND OR 97224 USA
4. ORGANIZERS
ANDREW JONES
9577 SW MOUNTAIN VIEW LANE
TIGARD OR 97224 USA
5. MEMBERS/MANAGERS
MEMBER
ANDREW JONES
9577 SW MOUNTAIN VIEW LANE
TIGARD OR 97224 USA
6. DURATION
PERPETUAL
7. MANAGEMENT
This Limited Liability Company will be member-managed by one or more members
8. OPTIONAL PROVISIONS
The company elects to indemnify its members, managers, employees, agents for liability and related expenses
tinder ORS 63.1&) to 61.171)_
14= ,. Corporation Division
www.filinginoregon.com OREGON SECRETARY OF STATE
By my signature, I declare as an authorized authority, that this filing has been examined by me and is, to the best
of my knowledge and belief, true, correct, and complete. Making false statements in this document is against the
law and may be penalized by fines, imprisonment, or both.
By typing my name in the electronic signature field, I am agreeing to conduct business electronically with the
State of Oregon. I understand that transactions and/or signatures in records may not be denied legal effect
solely because they are conducted, executed, or prepared in electronic form and that if a law requires a record or
signature to be in writing, an electronic record or signature satisfies that requirement.
ELECTRONIC SIGNATURE
NAME
JAMES S BRUCE
TITLE
AUTHORIZED AGENT
DATE SIGNED
06-06-2016
HYPERFIGHT HOLDINGS,LLC
OPERATING AGREEMENT
An Oregon Limited Liability Company
(Member-Managed)
OPERATING AGREEMENT
THIS OPERATING AGREEMENT is made and entered into effective this 6 day of June,
2016 by Andrew Jones (referred to in this agreement as the "Member").
SECTION 1. THE LIMITED LIABILITY COMPANY
1.1 Formation. Effective upon the execution of this Agreement, the Member shall form an
Oregon limited liability company under the name HyperFight Holdings, LLC (the "Company"),
on the terms and conditions in this Operating Agreement (the "Agreement") and pursuant to the
Oregon Limited Liability Company Act (the "Act"). Effective upon the execution of this
Agreement, the Member agrees to cause to be filed with the Corporation Division of the Oregon
Secretary of State's office Articles of Organization for the Company. The rights and obligations
of the parties are as provided in the Act except as otherwise expressly provided in this
Agreement.
1.2 Name. The business of the Company will be conducted under the name HyperFight
Holdings, LLC or such other name as the Member may decide on.
1.3 Purpose. The Company may conduct or promote any lawful business or purpose that a
partnership or corporation may conduct or promote. The LLC shall have authority to engage in
all activities reasonably necessary and incidental thereto.
1.4 Office. The Company will maintain its principal business office within Oregon at 9577
SW Mountain View Lane, Hillsboro, Oregon 97124.
1.5 Registered Agent. James S. Bruce shall be the Company's initial registered agent in
Oregon and the registered office is 7420 SW Bridgeport Road, Suite 101, Portland, Oregon
97224.
1.6 Term. The term of the Company shall be perpetual, unless earlier terminated as provided
in this agreement.
1.7 Name and Address of Member. The Member's name and address are as follows:
Name Address
Andrew Jones 9577 SW Mountain View Lane
Tigard, OR 97224
2-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
1.8 Admission of Additional Member. Except as otherwise expressly provided in this
Agreement, no additional Member may be admitted to the Company through issuance by the
company of a new interest in the Company without the prior unanimous written consent of the
Member.
SECTION 2. CAPITAL CONTRIBUTIONS
2.1 Initial Capital Contributions. The Member's initial capital contribution to be made to
the Company no later than the date this Agreement is executed, and their initial Capital Accounts
(defined in Section 6.7) in the Company is:
Andrew Jones: $ jj 000
94
2.2 Ownership Interest. The Member's percentage interest in the Company (the
"Ownership Interest") is:
Andrew Jones 100%
2.3 Additional Capital Contributions. The Member intends that to the maximum extent
possible, Company obligations are to be paid from operating cash flows and from Company
borrowings, whether short term or longer term. To the extent cash flow from operations and
borrowings are not sufficient to meet the obligations of the Company as they become due, then
on the prior consent of Member holding a majority of the Ownership Interests (such majority of
Ownership Interests hereinafter referred to as a "Majority of the Member") the Member will
contribute to the Company proportionately to their Ownership Interest the funds necessary to
meet such obligations. No Member shall be obligated to make any additional contributions
except as provided in this section.
2.3.1 The Operating Manager (defined in Section 4.1.1) may initiate a required capital
contribution by giving the other Member written notice (the "Notice") of the total amount of
capital required and by stating the reasons the additional capital contribution is needed. If
approved by a Majority of the Member, each Member must contribute his proportionate share
(determined by reference to Ownership Interest) of the amount stated in the Notice. All
contributions of capital must be made by each Member within 30 days of the date the Notice is
received by the other Member. Failure to make a required capital contribution is a breach of this
Agreement, unless, pursuant to Section 2.4, the other Member(s) advance funds, which decision
is in the sole discretion of the other Member.
2.4 Failure to Make Additional Capital Contribution. Should any Member for any reason
fail to make an additional capital contribution required under Section 2.3 (a "Defaulting
Member"), then the other Member may advance funds proportionate to their Ownership Interests
or as they otherwise may agree for the account of the Defaulting Member (a "Default Advance").
The other Member shall give any Defaulting Member a notice of the failure to make a required
contribution. A Member who makes a Default Advance is an "Advancing Member". A Default
3-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
Advance is a debt of the Defaulting Member due to the Advancing Member(s) that bears interest
from the date made at a rate equal to 4% above the prime rate of U.S. Bank. The defaulting
Member' share of Company cash distributions and proceeds will be paid to the Advancing
Member in the chronological order of, and proportionately to, the Default Advances then to be
repaid until that debt, including interest and costs of collection, are repaid in full. A Default
Advance is the personal obligation of the Defaulting Member to the Advancing Member(s), and
if not repaid within two years of the date made, the Advancing Member(s) may pursue any
remedy at law or in equity for his repayment.
2.5 No Interest on Capital Contributions. Member are not entitled to interest or other
compensation for or on account of their capital contributions to the Company except to the
extent, if any, expressly provided in this Agreement.
SECTION 3. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
3.1 Income and Loss Determination. The Company's taxable income or loss for each
calendar year, will be determined as of the end of the calendar year by the Company's accountant
in accordance with federal income tax accounting principles, consistently applied, using the
method of accounting employed in the federal income tax informational return filed by the
Company for that calendar year.
3.2 Allocations of Income and Loss. All items of income, gain, loss, deduction, and credit
will be allocated among the Member pro rata in proportion to their respective Ownership
Interest.
3.3 Distributions. Except as provided in Section 8, distributions will be made to the
Member pro rata in proportion to their respective Ownership Interests at times and in amounts as
the Operating Manager may deem appropriate or advisable; provided, however, that if any
Default Advances then remain unpaid and outstanding, distributions otherwise payable to the
Defaulting Member instead will be paid to the Advancing Member in chronological order of the
Default Advances until all Default Advances made on behalf of the Defaulting Member and all
accrued and unpaid interest and costs of collection are repaid in full.
3.3.1 Notwithstanding Section 3.3, no distribution may be made to any Member if, after giving
effect to the distribution, in the judgment of the Operating Manager, determined as permitted in
the Act, either (1) the Company would not be able to pay its debts as they become due in the
ordinary course of business, or (2) the fair value of the total assets of the Company would not at
least equal its total liabilities.
3.4 Transfer of Interest by Member During Fiscal Year. If any Member transfers all or a
portion of an interest in the Company during any calendar year of the Company consistent with
the provisions of Section 7, by sale, exchange, transfer, assignment, gift, death, operation of law,
or in any other manner, the income or deduction of the Company allocable to the Membership
interest so transferred will be prorated between the transferor and the transferee in accordance
4-HYPERFIGHT HOLDINGS, LLC OPERATING AGREEMENT
with the number of days during the calendar year each owned the interest, but, unless otherwise
agreed between the Member and the transferor, gains or losses recognized from the sale or
conveyance of Company assets will be allocated based on a closing of the books to the Member
owning the interest at the time of the sale or conveyance.
3.5 No Right to Demand Return of Capital. No Member has any right to any return of
capital or other distribution except as expressly provided in this Agreement. No Member has any
drawing account in the Company.
SECTION 4. POWERS AND DUTIES OF MANAGERS
4.1 Management of Company. The management and control of the Company and its
business and affairs is exclusively in the Member. The Member has all the powers that may be
possessed by a Member in a limited liability company without managers pursuant to the Act. No
Member acting solely in his, her, or its capacity as a Member, may be an agent of the company,
nor bind or execute any instrument or document on behalf of the company without the prior
written consent of the Operating Manager.
4.1.1 Notwithstanding Section 4.1, the Member agrees among themselves that, except as
otherwise provided in Section 4.3, in connection with Major Decisions (defined in Section 4.3),
the right to manage the day-to-day operations of the Company rests exclusively in Andrew Jones
(hereinafter the "Operating Manager"). Consistent with and subject to the foregoing, the
Operating Manager has all the rights and powers that may be possessed by a manager in a
limited liability company with managers pursuant to the Act, and such rights and powers as are
otherwise conferred by law or are necessary, advisable, or convenient to the discharge of the
Operating Manager's duties under this Agreement and to the management of the business and
affairs of the Company. Without limiting the generality of the foregoing, subject to the
restrictions set forth in Section 4.3, the Operating Manager has the following rights and powers
(which any manager may exercise at the cost, expense, and risk of the Company):
(1) To expend the funds of the Company in furtherance of the Company's business;
(2) To perform all acts necessary to fulfill the purposes of the Company, including engaging
persons the Operating Manager deems advisable to fulfill those purposes;
(3) To execute, deliver, and perform on behalf of and in the name of the Company, without
any other signature, agreements and documents deemed necessary or desirable by the Operating
Manager to carry out the business of the Company, including any lease, deed, easement, bill of
sale, mortgage, trust deed, security agreement, contract of sale, or other document conveying,
leasing or granting a security interest in the interest of the Company in any of its assets, or any
part thereof, whether held in the Company's name, the name of the Operating Manager, or
otherwise;
(4) To borrow or raise money on behalf of the Company in the Company's name or in the
5-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
name of the Operating Manager for the benefit of the Company and, from time to time, to draw,
make, accept, endorse, execute, and issue promissory notes, drafts, checks, and other negotiable
or nonnegotiable instruments and evidences of indebtedness, and to secure their payment by
mortgage, security agreement, pledge, conveyance, or assignment in trust of the whole or any
part of the assets of the Company, including contract rights; and
(5) As a limit to the powers of the Operating Manager under this section, no Operating
Manager shall, except with the consent of all other Members, incur any expense, or obligate the
LLC to pay out any sum in excess of$10,000.00.
(6) To appoint Officers to assist in the day-to-day operations of management of the
Company's business and activities. Such Officers shall serve at the pleasure of the Operating
Manager, as specifically set forth in Section 4.2 herein.
4.2 Officers.
The Operating Manager may appoint a President, Vice-president, Secretary, Treasurer, or such
other Officers as the Manager deems necessary from time to time.
All such Officers, deemed necessary by the Operating Manager, will be appointed annually at the
Company's annual meeting of the Member. Each Officer will hold office until his or her
successor has been duly appointed or until his or her death, or until he or she resigns or has been
removed in a manner provided herein.
Removal. The Operating Manager may remove any Officer at any time. The Officer's
appointment will not of itself create any contract rights or employment rights, and the resignation
or removal of an Officer will not effect the contract rights, if any, of the Company or the Officer.
Vacancies. The Operating Manager may fill a vacancy in any officer's position that arises
because of death, resignation, removal, or otherwise for the unexpired portion of the Officer's
term.
(1) President. The president will be the Company's Chief Executive Officer and subject to
the instruction of the Operating Manager generally supervise and control the Company's
business. The president may sign on behalf of the Company all such deeds, mortgages, bonds,
contracts, and other instruments that the Operating Manager has authorized to be executed and
shall also execute any and all such contracts, instruments, and documents that arise in the
ordinary course of the Company's business or that have been previously approved by the
Operating Manager as part of the annual budget and/or business plan. In general, the president
will perform all duties incident to the president's office and such other duties as the Operating
Manager may prescribe from time to time.
(2) Vice-President. In the absence of the president or in the event of the president's death,
inability, or refusal to act, the vice-president, if any, will perform the president's duties and when
6-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
acting will have all the powers and subject to the restrictions upon the president. Any vice-
president will perform such other duties as from time to time given by the president or that the
Operating Manager may assign.
(3) Secretary/Treasurer. Secretary/Treasurer, if one is deemed necessary by the Operating
Manager, will keep the minutes of meetings, see that all notices are duly given in accordance
with the provisions of this Agreement or as required by law, be the custodian of the Company's
books and records, be responsible for the authentication of such records, generally have charge
and be responsible for the Company's funds and securities, give receipts for monies due and
payable to the Company from any source whatsoever, and deposit all such monies in the
Company's name in such banks, trust companies, or other depositories as have been selected by
the Operating Manager, and in general perform all duties incident to the secretary/treasurer's
office as may from time to time be assigned by the president or Operating Manager.
(4) Salaries. The salaries of non-Member Officers will be fixed from time to time by the
Operating Manager. No Officer will be prevented from reimbursement for reasonable expenses
incurred on behalf of the Company by reason of the fact that he is also a Member of the
Company.
4.3 Restriction on Authority of Operating Manager. Notwithstanding any other provision
of this Agreement, without the prior written approval or consent of a Majority of the Member,
the Operating Manager does not have any authority to do any of the following (the "Major
Decisions"):
(1) Amend the Company's Articles of Organization or this Agreement;
(2) Finance or refinance any assets of the Company, or demolish, renovate, or lease the
existing improvements on the Company's existing real property (the "Property");
(3) Acquire any land or other real property or interest in land or other real property other than
any easement, right-of-way, or other similar interest reasonably required, in the opinion of the
Operating Manager, for the ownership or operation of the Company's Property;
(4) Sell, transfer, or exchange all or substantially all of the intellectual property, real or
personal property owned by the Company;
(5) Execute any lease or other arrangement involving the rental, use, or occupancy of the
Property or any part of it if such lease or other arrangement is for the entire rentable area of the
Property or is for a term (including renewal options) in excess of 10 years; or
(6) Construct any improvements or make any capital improvements, repairs, alterations, or
changes in or to the Property involving in any instance an expenditure in excess of $1,000.00,
except for matters expressly delegated to the Operating Manager by the Member.
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4.4 Member Exercise of Authority. Notwithstanding any other provision of this
Agreement, should any Member not an Operating Manager exercise any right or power vested in
the Member as a manager of the Company (other than voting or consenting to Major Decisions
as provided in Section 4.3), on the approval of Member owning a majority of the Ownership
Interests held by Member other than the breaching Member, the Company or such remaining
Member have the option, but not the obligation, to purchase and acquire the interest of that
Member in the Company for an amount equal to 75% of the amount that Member otherwise
would receive if the Company's assets were then sold and the proceeds distributed in liquidation
to all Member in accordance with this Agreement. Payment for that Member interest in the
Company will be unsecured and will not be less than 25% of the purchase price at closing, and
25% of the purchase price on each anniversary of the closing until paid.
4.5 Tax Matters Member. Andrew Jones is hereby designated and approved as Tax Matters
Member for the Company; in such capacity, the Tax Matters Member is authorized to participate
in any audit of the Company's federal income tax return, and in connection therewith, to
negotiate, settle, and make agreements and adjustments with respect to the Company's federal
income tax return that will be binding on all the Member; provided, however, that Andrew Jones
first consult with and obtain the approval of the other Member(s), if any, concerning any audit
adjustments proposed to be made to the Company's federal income tax return. Andrew Jones, as
Tax Matters Member,must notify all Member(s) of any final Company audit adjustments.
4.6 Duties of the Operating Manager. The Operating Manager must take all actions that
may be necessary or appropriate for the continuation of the Company's valid existence as a
limited liability company under the laws of Oregon and of each jurisdiction in which such
existence is necessary for the Company to conduct the business in which it is engaged and for the
accomplishment of the Company's purposes, including the preservation and operation of
Company assets in accordance with the provisions of this Agreement and applicable laws and
regulations. Notwithstanding the foregoing, the Operating Manager is not required to devote his
full time to the business and affairs of the Company, but must devote such time as reasonably is
necessary to perform his duties under this Agreement and prudently to manage or operate the
Company's assets and conduct its business.
4.7 Limitation on Liability of Operating Manager. The Operating Manager has no
liability to the Company or to any other Member for any loss suffered by the Company or any
Member that arises out of any action or inaction of the Operating Manager if the Operating
Manager, in good faith, determined that such course of conduct was in the best interest of the
Company and such course of conduct did not constitute gross negligence or intentionally
wrongful misconduct.
4.8 Indemnification of Operating Manager. The Operating Manager is not personally
liable for any debt, obligation, or liability of the Company merely by reason of being the
Operating Manager or a Member. To the fullest extent provided or allowed by the laws of
Oregon, the Company will indemnify the Operating Manager, in his capacity as Operating
Manager, from and against all costs, losses, liabilities, damages, claims, and expenses (including
8-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
attorney fees as incurred at trial and on appeal)(collectively "Claims") arising from actions or
inactions taken or omitted in his capacity as Operating Manager, including, without limitation,
action taken or omitted by the Operating Manager consistent with this Agreement and in
furtherance of the business or affairs of the Company. The satisfaction of any indemnification of
the Operating Manager under this Agreement will be from, and limited to, Company assets, and
the Member will not have any personal liability on account thereof.
4.9 Duties and Standards of Conduct. Each Member of the Company owes to the
Company and other Member, a duty of loyalty and a duty of care.
4.9.1 Duty of Care. Each Member shall refrain from engaging in grossly negligent or reckless
conduct, intentional misconduct or knowing violations of the law in the conduct of and winding
up of the business of the Company.
4.9.2 Duty of Loyalty. All Member shall not enter into transactions that compete with, or a
business opportunity that may be beneficial to, the business of the Company, or deal with the
Company in any manner adverse to the Company, or represent a person with an interest adverse
to the Company, without first obtaining written approval from fifty percent(50%) of the Member
of the Company, whether interested or disinterested. Each Member must account to the
Company for any property, profit, or benefit derived by the Member, in the formation, conduct,
and winding up of the Company business or from a use or appropriation by the Member of
Company property, including information developed exclusively for the Company and
opportunities expressly offered to the Company.
4.10 Decisions by Member. Whenever in this Agreement reference is made to the decision,
consent, approval, judgment, or action of the Member, unless otherwise expressly provided in
this Agreement, such decision, consent, approval,judgment, or action shall mean a Majority of
the Ownership Interest represented at a meeting where a quorum is present.
4.11 Withdrawal by a Member. A Member has no power to withdraw from the Company.
4.12 Limitation of Liability. Each Member' liability shall be limited as set forth in this
Agreement, the Act and other applicable law. Except as otherwise provided by law, a Member
will not be personally liable, merely by reason of being a Member, for any debts or losses of the
LLC beyond the Member' obligation to restore a deficit capital account balance. Without
limiting the generality of the foregoing, no Member shall be liable to the LLC or to any other
Member for losses or liabilities arising from his or her conduct of LLC business, provided that
such losses or liabilities are not the result of willful misconduct or gross negligence.
4.13 Indemnification. The LLC shall indemnify each Member for all costs, losses, liabilities,
and damages paid or accrued by such Member, and advance expenses incurred by the Member,
in connection with the business of the LLC, to the fullest extent provided or allowed hereunder
and by the Laws of Oregon. However, this provision shall not eliminate or limit a Member'
liability to the Limited Liability Company for:
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(a) Any breach of a Member's duty of loyalty to the Limited Liability Company or its
Member as described in the Limited Liability Company's Operating Agreement;
(b) Acts or omissions not in good faith which involve intentional misconduct or a knowing
violation of the law;
(c) Any unlawful distribution under the Act;
(d) Any transaction for which the Member derives an improper personal benefit.
4.14 Loans or other business by Member with Company. A Member may lend money to
or transact other business with the Company provided the loan or transaction of business
between the Member and the Company is fair to the Company.
SECTION 5. SALARIES,REIMBURSEMENT,AND PAYMENT OF EXPENSES
5.1 Organization Expenses. All expenses incurred in connection with organization of the
Company will be paid by the Company.
5.2 Reimbursements. The Operating Manager is entitled to reimbursement from the
Company for actual out-of-pocket expenses of the Company reasonably incurred in connection
with the Company's business; however, all expenses to be incurred in excess of$500.00 must be
pre-approved by the consent of all managers.
5.3 Guaranteed Payments. No guaranteed payments will be paid to a Member for the
performance of his duties under this Agreement unless the guaranteed payment has been
approved in writing by a Majority of the Member.
5.4 Insurance. At all times, the Operating Manager must obtain and keep in full force and
effect a comprehensive public liability policy and a property damage policy in amounts, with
companies, and on terms acceptable to a Majority of the Member. Each policy of insurance
covering any Company property or any portion of any Company property must provide that the
policy may not be canceled without at least 30 days' written notice to the Member.
5.5 Legal and Accounting Services. The Operating Manager is authorized to obtain legal
and accounting services to the extent reasonably necessary for the conduct of the Company's
business, at the expense of the company, subject to the approval of the Member.
SECTION 6. BOOKS OF ACCOUNT, ACCOUNTING REPORTS, TAX RETURNS,
FISCAL YEAR, BANKING
6.1 Books of Account. At the expense of the Company, the Operating Manager shall
maintain records and accounts of all operations and expenditures of the Company at the
principal office of the Company. At a minimum,the Company records must include:
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(1) A current list of the full name and last-known business, residence, or mailing address
of each Member, both past and present;
(2) A copy of the Articles of Organization and all amendments;
(3) A copy of the Company's currently effective written Operating Agreement and all
amendments;
(4) Copies of the Company's federal, state, and local income tax returns and reports, if
any, for the three most recent years. Each Member shall have access to these at all
reasonable times;
(5) Minutes of every meeting of the Member and any written resolution or
authentications obtained from the Member for actions taken without a meeting.
The Operating Manager must keep and maintain books and records of the operations of the
Company that are appropriate and adequate for the Company's business and for carrying out this
Agreement. The Operating Manager must prepare the books and records on the basis of
generally accepted accounting principles.
6.2 Accounting Reports. Within 30 days after the end of each quarter, the Operating
Manager must furnish each Member with copies of internally prepared financial statements of
the Company.
6.3 Audit. At any time, on the written request and for a reasonable purpose, at the request of
a Member, an audit of the accounting books of the Company will occur at the expense of the
Company. However, absent compelling reason, no Member can request more than one audit
every twelve (12) month period. All Member must cooperate fully with the accountant
conducting the audit.
6.4 Tax Returns. The Operating Manager must cause to be prepared and, on the review and
approval of them by a Majority of the Member, must timely file with the appropriate authorities
as necessary all federal and state income tax returns for the Company. Within 90 days after the
end of each taxable year, or such lesser time if prescribed by the Internal Revenue Service, each
Member will be furnished with a statement that may be used by the Member in the preparation of
the Member's income tax return, showing the amounts of any distributions, gains, profits, losses,
deduction, or credits allocated him during the fiscal year.
6.5 Method of Accounting. The Company will use the method of accounting previously
determined by the Member for financial reporting and tax purposes.
6.6 Fiscal Year; Taxable Year. The fiscal year and the taxable year of the Company is the
calendar year.
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6.7 Capital Accounts. The Company will maintain a Capital Account for each Member on a
cumulative basis in accordance with federal income tax accounting principles consistent with
Treasury Regulation §1.704-1(b)(2)(iv). In the event the LLC shall determine it is prudent to
modify the manner in which the capital accounts or any debits or credits thereto are computed,
the LLC may make such modification, provided it is not likely to have a material effect on the
amounts distributable to any Member.
6.8 Banking. All funds of the Company will be deposited in a separate bank account or in an
account or accounts of a savings and loan association in the name of the Company as determined
by a Majority of the Member. Company funds will be invested or deposited with an institution,
the accounts or deposits of which are insured or guaranteed by an agency of the United States
government. Company funds may be withdrawn from Company accounts on the signature of the
Operating Manager.
6.9 Management of Funds. The Operating Manager must hold and disburse all funds of the
Company in accordance with the terms of this Agreement and must account for all funds as a
fiduciary. All funds of the Company held by a Member must be held in trust for the benefit of
the Company, not be commingled with other funds of a Member, not be the personal property of
a Member, and, to the maximum extent permitted by law, not be vulnerable to inclusion in the
bankruptcy estate of a Member.
SECTION 7. TRANSFER OF MEMBERSHIP INTEREST
7.1 Sale or Encumbrance Prohibited. Except as otherwise permitted in this Agreement, no
Member may voluntarily or involuntarily transfer, sell, convey, encumber, pledge, assign, or
otherwise dispose of (collectively, "Transfer") an interest in the Company without the prior
written consent of a majority of the other non-transferring Member determined on a per capita
basis.
7.2 Right of First Offer. Notwithstanding Section 7.1, a Member may transfer all or any
part of the Member's interest in the Company (the "Interest") as follows:
7.2.1 The Member desiring to transfer his or her Interest first must provide written notice (the
"Notice") to the other Member, specifying the price and terms on which the Member is prepared
to sell the Interest(the "Offer").
7.2.2 For a period of 30 days after receipt of the Notice, the Member have the right, but not the
obligation, to acquire all, but not less than all, of the Interest at the price and under the terms
specified in the Offer.
7.2.3 Closing of the sale of the Interest will occur as stated in the Offer; provided, however,
that the closing will not be less than 150 days after expiration of the 30-day notice period.
12-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
7.2.4 If the other Member fail or refuse to notify the transferring Member of their desire to
acquire all of the Interest proposed to be transferred within the 30-day period following receipt
of the Notice, then the Member will be deemed to have waived their right to acquire the Interest
on the terms described in the Offer, and the transferring Member may sell and convey the
Interest consistent with the Offer to any other person or entity; provided, however, that
notwithstanding anything in Section 7.2 to the contrary, should the sale to a third person be at a
price or on terms that are more favorable to the purchaser than stated in the Offer, then the
transferring Member must reoffer the sale of the Interest to the remaining Member at that other
price or other terms; provided, further, that if the sale to a third person is not closed within six
months after the expiration of the 30-day period described above, then the provisions of Section
7.2 will again apply to the Interest proposed to be sold or conveyed.
7.2.5 Non-Consented Transfer: If contrary to this article, any transfer of a Member's
Membership Interest or of a person's Economic Interest is made to a transferee which is not a
Member immediately prior to the transfer is not approved in writing by all of the other Member,
in their sole discretion, then the proposed transferee or donee shall have no right to participate in
the management of the business and affairs of the Company or to become a Member. Such
transferee or donee shall be merely an owner of an Economic Interest.
7.3 Substituted Parties. Any transfer in which the Transferee becomes a fully substituted
Member is not permitted unless and until:
(1) The transferor and assignee execute and deliver to the Company the documents and
instruments of conveyance necessary or appropriate in the opinion of counsel to the Company to
effect the transfer and to confirm the agreement of the permitted assignee to be bound by the
provisions of this Agreement; and
(2) The transferor furnishes to the Company an opinion of counsel, satisfactory to the
Company, that the transfer will not cause the Company to terminate for federal income tax
purposes or that any termination is not adverse to the Company or the other Member.
7.4 Death, Incompetence, or Bankruptcy of Member. On the death, adjudicated
incompetence, or bankruptcy of a Member, unless the Company exercises its rights under
Section 7.4 and subject to the exercise of rights by Member, the successor in interest to the
Member (whether an estate, bankruptcy trustee, or otherwise) will receive only the economic
right to receive distributions whenever made by the Company and the Member's allocable share
of taxable income, gain, loss, deduction, and credit (the "Economic Rights") unless and until a
majority of the other Member determined on a per capita basis admit the transferee as a fully
substituted Member in accordance with the provisions of Section 7.2.
7.4.1 Any transfer of Economic Rights pursuant to Section 7.4 will not include any right to
participate in the management of the Company, including any right to vote, consent to, or
approve any actions of the Operating Manager, and will not include any right to information on
the Company or its operations or financial condition. Following any transfer of only the
13-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
Economic Rights of a Member's Interest in the Company, the transferring Member' power and
right to vote or consent to any matter submitted to the Member will be eliminated, and the
Ownership Interests of the remaining Member, for purposes only of such votes, consents, and
participation in management, will be proportionately increased until such time, if any, as the
transferee of the Economic Rights becomes a fully substituted Member.
7.5 Death Buyout. Notwithstanding the foregoing provision of Section 7, the Member
covenant and agree that on the death of any Member, the Company, at its option, by providing
written notice to the estate of the deceased Member within 60 days of the death of the Member,
may purchase, acquire, and redeem the Interest of the deceased Member in the Company
pursuant to the provision of Section 7.4 and 7.5.
7.5.1 The value of each Member' Interest in the Company will be determined on the date this
Agreement is signed, and the value will be endorsed on Exhibit A attached and made a part of
this Agreement. The value of each Member' Interest will be re-determined unanimously by the
Member annually, unless the Member unanimously decide to re-determine those values more
frequently. The Member will use their best effort to endorse those values on Exhibit A. The
purchase price for a decedent Member' interest conclusively is the value last determined before
the death of such Member; provided, however, that if the latest valuation is more than two years
before the death of the deceased Member, the provisions of Section 7.5.2 will apply in
determining the value of the Member' Interest in the Company.
7.5.2 If the Member have failed to value the deceased Member' Interest within the prior two-
year period, the value of each Member' Interest in the Company on the date of death, in the first
instance, will be determined by mutual agreement of the surviving Member and the personal
representative of the estate of the deceased Member. If the parties cannot reach an agreement on
the value within 30 days after the appointment of a personal representative of the deceased
Member, then the surviving Member and the personal representative shall each select a qualified
appraiser within the next succeeding 30 days. The appraisers so selected must attempt to
determine the value of the Company interest owned by the decedent at the time of death based
solely on their appraisals of the total value of the Company's assets in the amount the decedent
would have received had the assets of the Company been sold at that time for an amount equal to
their fair market value and the proceeds (after payment of all Company obligations) were
distributed in the manner contemplated in the section on dissolution. The appraisals may not
consider and discount for the sale of a minority interest in the Company. In the event the
appraisers cannot agree on a value within 30 days after being selected, the two appraisers must,
within 30 days, select a third appraiser. The value of the interest of the decedent in the Company
and the purchase price of it will be the average of the two appraisals nearest in amount to one
another. That amount will be final and binding on all parties and their respective successors,
assigns and representatives. The costs and expenses of the third appraiser and any expenses of
the appraiser retained but not paid for by the estate of the deceased Member will be offset against
the purchase price for the deceased Member' interest in the company.
14-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
7.5.3 Closing of the sale of the deceased Member' Interest in the Company will be held at the
office of the accountant on a date designated by the Company, not be later than 90 days after
agreement with the personal representative of the deceased Member' estate on the fair market
value of the deceased Member' Interest in the Company; provided, however, that if the purchase
price is determined by appraisal as set forth in Section 7.5.2, the closing will be 30 days after the
purchase price is determined. If no personal representative has been appointed within 60 days
after the deceased Member' death, the surviving Member have the right to apply for and have a
personal representative appointed.
7.5.4 The Members are allowed to carry life insurance on each other, if so agreed by unanimous
consent of all managers. Any and all premiums due for said life insurance policies shall be paid
out of the funds of the Limited Liability Company and the Company shall be the named
beneficiary on any such policies.
7.5.5 At closing, the Company will pay the purchase price for the deceased Member's Interest in
the Company. If the purchase price is less than $10,000.00, or if there is insurance owned by the
Company on the deceased Member in an amount at least equal to the deceased Member' Interest
in the Company, the purchase price will be paid in cash; if the purchase price is $10,000.00 or
more, and there is no insurance as provided above, the purchase price will be paid as follows:
(1) A down payment of 5% of the purchase price shall be paid on closing, such sum to be in
cash, bank cashier's check, or certified funds;
(2) The balance of the purchase price by the Company executing and delivering its
promissory note for the balance, with interest at the prime interest rate stated by U.S. National
Bank at the time of the deceased Member' death. Principal and interest will be payable monthly
in 120 equal monthly installments. The promissory note will be unsecured and will contain
provisions that the principal sum may be paid in whole or in part at any time, without penalty.
7.5.6 At the closing, the deceased Member's estate or personal representative must assign to the
Company all of the deceased Member's Interest in the Company free and clear of all liens,
claims, and encumbrances, and, at the request of the Company, the estate or personal
representative must execute all other instruments as may reasonably be necessary to vest in the
Company all of the deceased Member's right, title, and interest in the Company and its assets. If
either the Company or the deceased Member's estate or personal representative fails or refuses to
execute any instrument required by this Agreement, the other party is hereby granted the
irrevocable power of attorney which, it is agreed, is coupled with an interest, to execute and
deliver on behalf of the failing or refusing party all instruments required to be executed and
delivered by the failing or refusing party.
7.5.7 On completion of the purchase of the deceased Member's Interest in the Company, the
Ownership Interests of the remaining Member will increase proportionately to their then-existing
Ownership Interests.
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7.6 Deadlock Buyout. The provisions of this Section 7.6 shall apply if (1) this Agreement
requires the unanimity of the Member, (2) the Members cannot agree as to a decision or course
of action (a "Deadlock"), (3) a Member delivers to the other Member a written notice of the
Member's election to invoke the provisions of this Section 7.6 (a "Deadlock Notice"), and (4)
unanimity cannot be reached within 60 days after delivery of the Deadlock Notice to the other
Members.
7.6.1 A Member who believes that there is a Deadlock may deliver to the other Members a
Deadlock Notice stating with particularity the issue or decision on which the Member believes
there is a Deadlock. If the Members cannot resolve the Deadlock within 60 days after delivery
of the Deadlock Notice to the other Members (the "Resolution Period"), then during the 30-day
period after expiration of the Resolution Period, any Member (the "Initiating Member") may
deliver to the other Members (the "Responding Member") a written notice (the "Buyout Notice")
invoking the provisions of this Section 7.6. The Buyout Notice shall set forth a dollar figure
selected by the Initiating Member for the total value of the Company's assets, such value to be
determined without regard to any debts, mortgages, or other liabilities of the Company (which
figure is hereinafter referred to as the "Total Asset Value").
7.6.2 Within 120 days after the delivery of such notice by the Initiating Member, the Responding
Members or any of them shall furnish written notice to the Initiating Member electing either to
purchase the Initiating Member's entire rights and interests in the Company or to sell the
Responding Member's entire rights and interest in the company to the Initiating Member, at the
cash purchase price provided for in Section 7.6.5. If the Responding Member does not
effectively give either notice, then the Responding Member shall be deemed to have elected to
sell their rights and interests in the Company to the Initiating Member at such purchase price.
7.6.3 For purposes of this Section 7.6.3, the election of the Responding Member shall be
determined in accordance with the following:
7.6.3.1 If all Responding Members elect to acquire the Initiating Member's interest, the
Responding Member shall acquire that interest proportionately to their respective Ownership
Interests or as they otherwise may agree;
7.6.3.2 If less than all the Responding Member elect to acquire the Initiating Member' interest,
the Responding Member so electing shall acquire the Initiating Member' interest proportionately
to the Ownership Interests of the Responding Member electing to purchase, or in such other
proportions as they may otherwise agree;
7.6.3.3 If none of the Responding Member elects to acquire the Initiating Member' interest, then
the Initiating Member shall acquire all of the interests of all Responding Member; or
7.6.3.4 Responding Member cannot acquire the interests of other Responding Member who do
not elect to participate in the acquisition of the Initiating Member' interest as the result of a
Deadlock except in accordance with the provisions of this Section 7.6 wherein such purchasing
16-HYPERFIGHT HOLDINGS, LLC OPERATING AGREEMENT
Responding Member becomes an Initiating Member.
7.6.4 Closing shall take place on the 30th day after the expiration of the 60-day period provided
in Section 7.6.2 for the giving of notice if election by the Responding Member or, if that 30th
day shall fall on a weekend or holiday, then on the next ensuing business day thereafter. The
closing shall occur at a time and place in Portland, Oregon, to be designated by the purchasing
Member. At the time and place of closing, the selling Member(s) shall convey, transfer, and
assign to the purchasing Member(s) by assignment, bill of sale, and such other instruments of
transfer as shall reasonably be required, all of the selling Member' rights and interests in and to
the Company and all its assets, and shall, to the extent requested by the purchasing Member(s),
cooperate to effect the smooth and efficient continuation of Company affairs.
7.6.5 The purchase price to be paid by the purchasing Member(s) to the selling Member(s) shall
be equal to the amount that the selling Member(s) would have received if all of the Company's
assets had been sold on the date of closing for a cash price equal to the Total Asset Value, and
the proceeds thereof were applied and distributed in the manner provided in Section 8 of this
Agreement, except that any reserves for contingencies shall not be taken into account for this
purpose. The purchase price shall be payable in its entirety in cash, cashier's check, wire
transfer, or certified funds (which funds shall be immediately available in Portland, Oregon) at
closing.
SECTION 8. DISSOLUTION AND WINDING UP OF THE COMPANY
8.1 Dissolution. The Company will be dissolved on the happening of any of the following
events:
8.1.1 Sale, transfer, or other disposition of all or substantially all of the property of the
Company;
8.1.2 The agreement of all of the Members:
8.1.3 By operation of law;
8.1.4 Reaching of time for dissolution set forth in the Articles of Organization; or
8.1.5 The death, incompetence, expulsion, or bankruptcy of a Member, or the occurrence of
any event that terminates the continued Membership of a Member in the Company unless there
are then remaining at least the minimum number of Member required by law and all of the
remaining Member, within 120 days after the date of the event, elect to continue the business of
the Company.
8.2 Winding Up. On the dissolution of the Company (if the Company is not continued as
provided in Section 8.1.5), the Member must take full account of the Company's assets and
liabilities, and the assets will be liquidated as promptly as is consistent with obtaining their fair
17-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
value, and the proceeds, to the extent sufficient to pay the Company's obligations with respect to
the liquidation, will be applied and distributed, after any gain or loss realized in connection with
the liquidation has been allocated in accordance with this Agreement, and the Member' Capital
Accounts have been adjusted to reflect the allocation and all other transactions through the date
of the distribution, in the following order:
8.2.1 To payment and discharge of the expenses of liquidation and of all the Company's debts
and liabilities to persons or organizations other than Member;
8.2.2 To the payment and discharge of any Company debts and liabilities owed to Member; and
8.2.3 To Member in the amount of their respective adjusted Capital Account balances on the date
of distribution; provided, however, that any then-outstanding Default Advances (with interest
and costs of collection) first must be repaid from distributions otherwise allocable to the
Defaulting Member pursuant to Section 8.2.3.
SECTION 9. MEMBER MEETINGS
9.1 Meetings. A meeting of Member shall be held (a) if it is called by the Operating
Manager; or(b) if Member holding at least 25% of the ownership interests sign, date, and deliver
to the LLC's principal office a written demand for the meeting, describing the purpose or
purposes for which it is to be held. Meetings of Member shall be held at the principal office of
the LLC or any other place specified in the notice of meeting.
9.2 Notice of Meeting. Notice of the date, time, and place of each Member's meeting shall
be given to each Member not earlier than 60 days nor less than 10 days before the meeting date.
The notice must include a description of the purpose or purposes for which the meeting is called.
9.3 Record Date. The persons entitled to notice of and to vote at Member' meeting, and
their respective ownership interests, shall be determined as of the record date for the meeting.
The record date shall be a date, not earlier than 70 days nor less than 10 days before the meeting,
selected by the managers. If the managers do not specify a record date, the record date shall be
the date on which notice of the meeting was first mailed or otherwise delivered.
9.4 Quorum. The presence, in person or by proxy, of Member holding at least 51% of the
ownership interests shall constitute a quorum.
9.5 Proxies. A Member may be represented at a meeting in person or by written proxy.
Such Proxy may be of any duration except that a Member who shall appear in person at a
meeting shall void any outstanding proxy for so long as such Member is in attendance.
9.6 Voting. On each matter requiring action by the Member, each Member shall be entitled
to vote the Member' ownership interest. Except as otherwise stated in the Articles of
Organization, this Operating Agreement, or applicable law, a matter submitted to a vote of the
18-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
Member shall be deemed approved if the ownership interests voted in favor exceed those voted
against the matter (or, it receives the affirmative vote of more than 50% of the ownership
interests represented at a meeting).
SECTION 10. ACTIONS WITHOUT NOTICE OR MEETINGS,OR BY TELEPHONE
10.1 Meeting of All Member. Notwithstanding any other provision of this Operating
Agreement, if all of the Member shall hold a meeting at any time and place, such meeting shall
be valid without call or notice, and any lawful action taken at such meeting shall be the action of
the Member.
10.2 Action Without Meeting. Any action required or permitted to be taken by the Member
at a meeting may be taken without a meeting if consent in writing, describing the action taken, is
signed by Member holding more than 50% of the ownership interests and is included in the
minutes or filed with the LLC's records of meetings.
10.3 Meetings by Telephone. Meetings of the Member may be held by conference telephone
or by any other means of communication by which all participants can hear each other
simultaneously during the meeting, and such participation shall constitute presence in person at
the meeting.
SECTION 11. INVESTMENT REPRESENTATIONS
Each Member represents and warrants to the other Member and the Company as follows:
11.1 Preexisting Relationship or Experience. (a) The Member has a preexisting personal or
business relationship with the Company or one or more of its Managers, officers or control
persons or (b) by reason of the Member's business or financial experience, or by reason of the
business or financial experience of the Member' financial advisor who is unaffiliated with and
who is not compensated, directly or indirectly, by the Company or any Affiliate or selling agent
of the Company, the Member is capable of evaluating the risks and merits of an investment in its
Membership interest and of protecting the Member' own interests in connection with the
investment.
11.2 Access to Information. The Member has had an opportunity to review all documents,
records and books pertaining to this investment and has been given the opportunity to consult
with counsel of his or her choice with respect to all aspects of this investment and the Company's
proposed business activities. Such Member has personally met with the Managers and has been
provided with such information as may have been requested and has at all times been given the
opportunity to obtain additional information necessary to verify the accuracy of the information
received and the opportunity to ask questions of and receive answers from the Managers
concerning the terms and conditions of the investment and the nature and prospects of the
Company's business.
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11.3 Economic Risk. The Member is financially able to bear the economic risk of an
investment in its Membership interest, including the total loss thereof.
11.4 Investment Intent. The Member is acquiring its Membership interest for investment
purposes and for the Member' own account only and not with a view to, or for sale in connection
with, any distribution of all or any part of its Membership interest. Except for the partners of
Member, no other Person will have any direct or indirect beneficial interest in, or right to, its
Membership interest.
11.5 Consultation with Attorney. The Member has been advised to consult with its own
attorney regarding all legal and tax matters concerning an investment in its Membership interest
and has done so to the extent he/she/it considers necessary.
11.6 Purpose of Entity. If the Member is a corporation, partnership, limited liability
company, trust or other entity, it was not organized for the specific purpose of acquiring its
Membership interest.
11.7 No Advertising. The Member has not seen, received or been solicited by any leaflet,
public promotional meeting, newspaper or magazine article or advertisement, radio or television
advertisement or any other form of advertising or general solicitation with respect to the sale of
its Membership interest.
11.8 Membership Interest is Restricted Security. The Member understands that its
Membership interest is a "restricted security' under the Securities Act of 1933 in that the
Membership interest will be acquired from the Company in a transaction not involving a public
offering, that its Membership interest may be resold without registration under the Securities Act
of 1933 only in certain limited circumstances and that otherwise its Membership interest must be
held indefinitely.
11.9 No Registration of Membership interest. The Member acknowledges that its
Membership interest has not been registered under the Securities Act of 1933 or qualified under
any state securities law in reliance, in part, upon its representations, warranties and agreements
herein.
SECTION 12. GENERAL PROVISIONS
12.1 Amendments. Amendments to this Agreement or the Articles of Organization may be
proposed by any Member. A proposed amendment will be adopted and become effective as an
amendment only on the written approval of all of the Member(s).
12.2 Governing Law. This Agreement and the rights and obligations of the parties under it
are governed by and interpreted in accordance with the laws of the state of Oregon (without
regard to principles of conflicts of law).
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12.3 Waiver of Action for Partition. Each of the Member(s) irrevocably waives, during the
existence of the Company and during the period of its winding up and liquidation following any
event of dissolution, any right that the Member may have to maintain any action for partition
with respect to any of the assets of the Company.
12.4 Counterparts. This Agreement may be executed in any number of counterparts with the
same effect as if all parties had signed the same counterpart. All counterparts will be construed
together and will constitute one and the same Agreement. A single counterpart may be
introduced as evidence of this Agreement.
12.5 Parties in Interest. Subject to the limitations on transfers of Membership interests set
forth in Section 7 of this Agreement, each and every covenant, term, provision, and agreement is
binding on and inures to the benefit of the parties and their heirs, successors, assigns, and legal
representatives.
12.6 Entire Agreement; Modification. This Agreement constitutes the entire understanding
and agreement between the Member(s) with respect to the subject matter of this Agreement.
There are no agreements, understandings, restrictions, representations, or warranties between the
Member other than those in this Agreement or referred to or provided for in this Agreement. No
modification or amendment of any provision of this Agreement will be binding on any Member
unless in writing and signed by all the Member(s).
12.7 Arbitration. Any dispute, controversy or claim arising out of, in connection with, or
relating to, this Agreement or any breach or alleged breach of this Agreement, shall, upon
request of any party involved, be submitted to mediation in Multnomah County, Oregon. If a
settlement cannot be reached through mediation, the parties agree that the dispute will be
submitted to and be settled by arbitration in Multnomah County, Oregon, pursuant to the rules
then in effect of the American Arbitration Association (or at any other place or under any other
form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be
final and conclusive upon the parties, and a judgment on such award may be entered in the
highest court of the forum, state or federal, having jurisdiction. The expenses of the arbitration
shall be borne equally by the parties to the arbitration, provided that each party shall pay for and
bear the cost of their respective own experts, evidence and counsel's fees. The parties to either
mediation or arbitration recognize that mediation sessions are settlement negotiations and that
settlement negotiations are inadmissible in any litigation or arbitration of their dispute, to the
extent allowed by law. The parties will not subpoena or otherwise require the mediator to testify
or produce records, notes, or work product in any future proceeding beyond mediation. In
addition, the parties agree that all information obtained in either the mediation or arbitration
process is strictly confidential and further agree that all such information shall be held in
confidence by the party not otherwise having such information available to them other than
through the mediation or arbitration process.
12.8 Defects as to Formalities. A failure to observe any formalities or requirements of this
Agreement, the Articles or the Act shall not be grounds for imposing personal liability on the
21-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
Member or Managers for liabilities of the Company.
12.9 No Partnership Intended for Nontax Purposes. The Member(s) have formed the
Company under the Limited Liability Company Act, and expressly do not intend hereby to form
a partnership under either the Oregon Uniform Partnership Act nor the Oregon Uniform Limited
Partnership Act or a corporation under the Oregon Business Corporation Act. The Member do
not intend to be partners one to another, or partners as to any third party. To the extent any
Member, by word or action, represents to another person that any other Member is a partner or
that the Company is a partnership, the Member making such wrongful representation shall be
liable to any other Member who incurs personal liability by reason of such wrongful
representation.
12.10 Rights of Creditors and Third Parties. This Agreement is entered into among the
Company and the Initial Member for the exclusive benefit of the Company, its Member, and
their successors and assigns. The Agreement is expressly not intended for the benefit of any
creditor of the Company or any other Person. Except and only to the extent provided by
applicable statute, no such creditor or third party shall have any rights under the Agreement or
any agreement between the Company and any Member with respect to any Contribution or
otherwise.
12.11 Title to Property. All Company Property shall be owned by the Company as an entity
and no Member shall have any ownership interest in such Property in the Member' individual
name or right, and each Member' interest in the Company shall be personal property for all
purposes. Except as otherwise provided in this Agreement,the Company shall hold all Company
Property in the name of the Company and not in the name or names of any Member or Member.
12.12 Payments of Individual Obligations. The Company's credit and assets shall be used
solely for the benefit of the Company, and no asset of the Company shall be transferred or
encumbered for or in payment of any individual obligation of any Member unless otherwise
provided for herein.
12.13 Further Effect. The parties agree to execute other documents reasonably necessary to
further effect and evidence the terms of this Agreement, as long as the terms and provisions of
the other documents are fully consistent with the terms of this Agreement.
12.14 Severability. If any term or provision of this Agreement is held to be void or
unenforceable, that term or provision will be severed from this Agreement, the balance of the
Agreement will survive, and the balance of this Agreement will be reasonably construed to carry
out the intent of the parties as evidenced by terms of this Agreement.
12.15 Captions. The captions used in this Agreement are for the convenience of the parties
only and will not be interpreted to alter the terms and provisions of this Agreement.
22-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT
12.16 Notices. All notices required to be given by this Agreement will be in writing and will be
effective when actually delivered or, if mailed,when deposited as certified mail,postage prepaid,
directed to the addresses first shown above for each Member or to such other address as a
Member may specify by notice given in conformance with these provisions to the other Member.
12.17 Rights and Remedies Cumulative. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party shall not preclude
or waive the right to use any or all other remedies. Said rights and remedies are given in addition
to any other rights the parties may have by law, statute, ordinance, or otherwise.
12.18 No Participation in Management. No Member (other than a Member who is also a
Manager) shall take part in the management of the Company's business, transact any business in
the Company's name, or have the power to sign documents, or otherwise bind the Company,
except as provided for in this Agreement.
12.19 Authority to Act. No Member shall have the power of authority to bind the Company
unless the Member is an Operating or Management Committee Member, or the Member has
been authorized in writing by the Operating managers or Management Committee (as the case
may be)to act as an agent of the Company in accordance with this Agreement.
12.20 Member Warranty. Each Member warrants and represents to the other Member(s) of
the Company that such Member has sufficient knowledge and expertise to enable such Member
to evaluate the merits and risks of entering into this Agreement, has received various documents,
including without limiting the generality of the foregoing, this Agreement, and the documents
attached as exhibits to this Agreement, has read such documents and become familiar with the
terms and provisions of the documents, and has been advised to consult with independent
accountants and legal counsel with respect to this documents.
IN WITNESS WHEREOF, the party to this Agreement executes this Operating Agreement as of
the date nd year fi st above written.
Andrew Jo
I
23-HYPERFIGHT HOLDINGS,LLC OPERATING AGREEMENT