HomeMy WebLinkAboutContract 56261-CA1 i,
I
CSC No.56261-CA1
CITY OF FORT WORTH
ASSIGNMENT
For value received, Jones & Carter, Inc. ("Assignor"), hereby assigns to Quiddity
Engineering, LLC ("Assignee"), all of its right, title and interest in and to any and all sums of
money now due or to become due from the City of Fort Worth to Assignor under PSK
14334/CSCO 56261 (the "Contracts") and Assignee agrees to assume and perform all duties and
obligations required by Assignor under the terms of the Contracts.
This Assignment constitutes the entire agreement between Assignor and Assignee with
respect to the subject matter hereof. No modification of any provision of this Assignment shall be
effective unless in writing and signed by Assignor and Assignee. This Assignment shall inure to
the benefit of and be binding upon Assignor and Assignee and their respective successors and
assigns. This Assignment shall be governed by the terms of the original Contracts between
Assignor and various other entities and the City of Fort Worth and the laws of the State of Texas,
without application of principles of conflicts of law.
This Assignment may be executed in one or more counterparts each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. Signed
signature pages may be transmitted by facsimile or e-mail, and any such signature shall have the
same legal effect as an original.
Dated the oS i I t Ly of March 2022.
Jones& Canter, Inc.
(Assignor)
By: <
Print: Tobin Synatschk
Title: Chief Operating Officer
Quiddity Engineering, LLC
(Assignee)
By:
Print: Bob Aylw Prd
Title: Chief Executive Officer
OFFICIAL RECORD
CITY SECRETARY
Assignment FT. WORTH, TX
i
NOTARY ACKNOWLEDGEMENT
nn
On the aS�� day of March 2022, personally appeared Tobin Synatschk, who
acknowledged to me that (s)he is the Chief Operating Officer of Jones & Carter, Inc., and that
(s)he executed this document for the purposes and consideration contained herein.
Jones & Carter, Inc.
By:
Print: Tobin Synatschk
n/Tiitle: Chief Operating fficer
SUBSCRIBED TO before me on th4LOday of March, 2022.
� C
Notary Public in and for the St to of
My commission Expires: V��j
NOTARY ACKNOWLEDGEMENT
On the o43&L day of March 2022, personally appeared Bob Aylward, who
acknowledged to me that(s)he is the Chief Executive Officer of Quiddity Engineering, LLC, and
that(s)he executed this document for the purposes and consideration contained herein.
Quiddit •in ,VLL
By:
Print: Bob Aylward
Title: Chief Executive Officer
SUBSCRIBED TO before me on this '41 day of March, 2022.
CHARLOTTE G.JACKSON
• NOTARY ID#11299474-3 Notary Public in and f -the State of
• My Commission Expires My commission Expires: 05 - 4?&1
September 05,2022
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Assignment Page 2 of
i
I
CONSENT TO ASSIGNMENT
The City of Fort Worth consents to the assignment of Jones & Carter, Inc. ("Assignor")to
Quiddity Engineering, LLC (Assignee"), of all its rights, title, and obligation owing and all funds
due or to become due to Assignor under PSK 14334/CSCO 56261, as long as all terms required of
Assignor in said contracts are met by Assignee.
I
CITY OF FORT WORTH
i
r2-1 M a r 29,2022
Reginald Zeno(Mar 29,2022 08:28 CDT)
i
Reginald Zeno,Interim Assistant City Manager Date
Ma r 29,2022
Cynthia Garcia,Assistant Director—FMS Date
�aAG Fonr��a�
ATTESTED BY: o° ----,A°00��
�v0 o=d Mar31,2022
Jannette S.Goodall(Mar 31,202211:25 CDT) o j
Y ° o d
Jannette Goodall, City Secretary � '�°°°°°°°°°°°°° `� Date
aa�nExASgap '
APPROVED AS TO FORM AND LEGALITY:
John B. Strong,Assistant City Attorney
Contract Manager:
Compliance Mana
p g
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including ensuring all performance and
reporting requirements.
a 04r?& Mar 26, 2022
Employee Signature/Date
Graduate Engineer
Title
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Assignment Page 3 of
6330 West Loop South,Suite 150
QUIDDITY Bellaire,Texas .5337
L Tel:713.777.5337
www.quiddity.com
March 3,2022
Clients of Jones&Carter, Inc.
Re: Recent Changes
Dear Clients:
Jones&Carter,Inc.,(now Quiddity),very much appreciates the opportunity to provide our professional
services to you. As you are hopefully already aware,Jones&Carter has undergone a rebranding and
name change effort and we are now known as Quiddity Engineering,LLC. We successfully completed
the necessary filings with the Texas Secretary of State's Office and will be pleased to provide you those
additional documents should you desire them. However,please know that Quiddity Engineering,LLC
will maintain a Doing Business As(DBA)—Jones&Carter,Inc.status for a short window while we
complete the novation and assignments of our existing contracts. Our desire is to immediately begin
processing invoices and receiving payments under our Quiddity Engineering,LLC name and EIN numbers
noted below. However,to avoid unnecessary delays in the payment of this attached invoice,we ask
that you contact us immediately should you have a need to process this invoice under our existing Jones
&Carter,Inc.name and EIN. In this case,we will work with you in the coming month to ensure that you
have all necessary documentation in place to facilitate a Quiddity Engineering,LLC invoice and payment
for next month.
Please update your records to refer to the new name and Federal EIN of Quiddity Engineering, LLC(EIN:
87-3888184).
To facilitate payments for the work performed,please use the following:(We have attached a new
updated W-9 form with the new name and tax ID)
Payments by Automated Clearing House(ACH):
Account Name:Quiddity Engineering, LLC
Account#1440017655101
ABA#111017694
Payments by Check:
Please make all checks payable to Quiddity Engineering,LLC,and mail to the lockbox address below.
P.O. Box 95562
Grapevine,TX 76099-9708
Paves bg Crarlit card
We accept all types of credit card payments.To process a payment by credit card payment please
reach out to accounts receivable via email at Accountsreceivableoguiddity.com or by phone at
(713)777-5337
Texas Board of Professional Engineers and Land Surveyors Registration Nos.F-23290 &10046100
QUIDDITY
Clients of Jones&Carter,Inc.
Page 2
March 3,2022
All other invoice related questions should be directed to the project accountant that handles your
account.
Tobin Synatschk, E
Chief Operations Officer
TS/cgj
Texas Board of Professional Engineers and Land Surveyors Registration Nos.F-23290&10046100
Form -9 Request for Taxpayer Clive Form to the
(Rev.October2018) Identification Number and Certification requester.Do not
II-t-1:11Revnue Sery ce ry ►Go to WWW.frs.gov1FarmW9 for instructions and the latest lnfarmatlon. send to the IRS.
1 Name(as shown on your income lax return).Name Is required on this line;do not leave this Una blank.
Quiddity Engineering,LLC
2 13ustness name/disregarded entity name,If different from above ""-'.-""
ri
m 3 Check appropriate box for federal tax clasaffballon of the person whose name Is entered on line 1,Check only one of the 4 Exemptlons(codes apply only to
N fallowing seven boxes_ certain entities,not Individuals;see
° Instructions on page 3)
1 :
o ❑ Indivldual/sole proprietor or ❑ C Corporation ❑S Corporation ❑ Partnership ❑TrusV4ostate f
single-member LLC Exempt pages cede(If any) N f A
o i
❑✓ Limited[lability company.Enter the tax classification(C=C corporation,S=S corporatlon,P=Partnership)> S
`aa Note:Check the appropriate box In the line above for the tax classiflcatlan of the single-member owner Do not check Exemption from FATCA reporting
LLC If the LLG is classified as a afnglo•member LLC that is disregarded from the owner unless theowner of the LLC Is a y)another LLC that Is not disregarded from the owner for U.S.federal tax purposes.Otherwise,a single-member L coda Of an
LC that —ri 1p _
is disregarded from the owner should check the appropriate box for the tax classification of Its owner.
d ❑ Other(sea Instructions)► *PfUfoaetoeN:M.J ar.,.aW1d*thoasi
S Address(number,street,and apt.or suite no.)See Instructions. Requester's name and address(opnonaq
P,O.BOX 95562
co
B Clty,state,and ZiP code
Grapevine TX 76099.9708
7 List account number(s)here(optionah -
Lockbox
Taxpayer Identification Number(TIN)
Enter your TIN In the appropriate box.The TIN provided must match the name given on Ilno 1 to avoid Social seourity number
backup withholding.For individuals,this is genorallyyourSocial security number(SSN).However,for a
resident alien,solo proprietor,or disregarded entity,see the instructians for Part I,later.For other -m
entities,it is your employer Identification number(EIN).If you do not have a number,see Now to get a
71N,later.
or
Note:If the account is In more than one name,see the Instructlons for line 1.Also see What Name and Employer identification number
Number To Give the Requester for guldelines on whose number to enter. i
8 7 - 3 8 8 8 1 8 4
F2-Mir Certification
Under penalties of perjury,I certify that:
1.The number shown an this form Is my correct taxpayer identification number(or i am waiting for a number to be Issued to me);and
2,1 am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue
Service(IRS)that 1 am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that 1 am
no longer subject to backup withholding;and
3.1 am a U.S.citizen or other U.S.person(defined below);and
4.The FATCA code(s)entered on this form(If any)Indicating that I am exempt from FATCA reporting Is correct.
Certification instructions.You must cross out Item 2 above If you have been notified by the IRS that you are currently subject to backup withholding because
you have failed to report all IntereF,7d-
.di ds on your tax return,For real estate transactions,Item 2 does not apply.For,mortgage interest paid,
acquisition or abandonment of seroper ,cancellation of debt,contributions to an individual retirement arrangement{IRA),and generally,payments
other than interest and dividends e not equlrad to sign the certification,but you must provide your correct TIN,See the Instructions for Part Il,later.
Sign Signature of
Here U.S.parson► Date),
General instructions •Form 1099-DIV(dividends,Including those from stocks or mutual
funds)
Section references are to the internal Revenue Code unless otherwise •Form 1099-MISO(various types of Income,prizes,awards,or gross
noted. proceeds)
Future developments,For the latest information about developments .Form 1099 8(stock or mutual fund sales and certain other
related to Form W-9 and its Instructions,such as legislation enacted transactions by brokers)
after Prey were published,go to www.frs.gov1FormW9.
•Form 1099-S(proceeds from real estate transactions)
Purpose of Form •Form 1099-K(merchant card and third party network transactions)
An individual or entity(Form W-9 requester)who Is required to file an •Form 1098(home mortgage Interest),i098-E(student loan interest),
information return vAth the IRS must obtain your correct taxpayer i098-T(tuition)
Identification number(TIN)which may be your social security number •Form 1099-0(canceled debt)
(SSN),individual taxpayer Identification number(ITIN),adoption j
taxpayer Identification number(ATIN),or employer identification number •Form 1099-A(acquisitlon or abandonment of secured property) I
(EIN),to report on an information return the amount paid to you,or other Use Form W-9 only if you are a U.S,person(including a resident
amount reportable on an information return.Examples of information alien),to provide your correct TIN.
returns include,but are riot limited to,the following. ff you do not return Form W-9 to the requester with a TIN,you might
•Form 1099-iNT(interest earned or paid) be subject to backup withholding.See What Is backup withholding,
later.
Cat.No,10231X Form W-9 Fev.10-2018)
EXECUTION VERSION
CERTIFICATE OF MERGER
DOMESTIC ENTITY
DIVISIONAL MERGER
Pursuant to Chapter 10 of the Texas Business Organizations Code ("TBOC"), and the
title applicable to the filing entity,the undersigned entity submits this Certificate of Merger for to
divide itself into a surviving domestic entity and three new domestic entities (the "Merger").
1. Party to the Merger. The name, organizational form, state of incorporation or
organization, and file number, if any, issued by the Secretary of State of the Texas, and the
principal place of business for the entity dividing itself pursuant to the Merger are as follows:
Jones & Carter, Inc. (the "Company")
Company is a corporation
Company is organized under the laws of the State of Texas
Filing Number: 0037303700
Principal place of business: 6330 West Loop S., Suite 150, Bellaire, TX 77401
Company will survive the Merger
2. Agreement and Plan of Divisional Merger. A copy of the signed Plan of
Divisional Merger is on file at the principal place of business of Company and each domestic
entity that is created by the Plan of Divisional Merger, which is located at 6330 West Loop S,
Suite 150, Bellaire, Texas 77401. On written request, a copy of the Plan of Divisional Merger
will be furnished without cost to any owner of Company or a new domestic entity that is created
by the Plan of Divisional Merger and to any creditor or obligee of Company at the time of the
Merger if a liability or obligation is then outstanding.
3. New Entity. The name, jurisdiction of organization, principal place of business
address, and entity description of the single entity to be created pursuant to the Merger are set
forth below:
Quiddity Engineering, LLC ("Subsidiary").
Subsidiary will be organized as a limited liability company under the laws of the
State of Texas.
Principal place of business: 6330 West Loop S., Suite 150, Bellaire, Texas 77401
The certificate of formation of Subsidiary is being filed with this Certificate of
Merger and is attached hereto as Exhibit A.
4. Approval of the Agreement and Plan of Merger. The Plan of Divisional Merger
has been approved as required by the laws of the jurisdiction of formation and by the governing
documents of Company.
5. Effectiveness of Filing. This Certificate of Merger becomes effective when
accepted and filed by the secretary of state.
13119176v1
6. Tax Liability. Company will be responsible for all franchise taxes and fees
required to be paid in connection with the transactions contemplated by this Certificate of
Merger.
[Signature Page Follows]
2
13119176v1
DocuSign Envelope ID: BE329DA4-42F4-4D1 E-BDC9-D7729D39E1 F7
IN WITNESS WHEREOF, the undersigned signs this document subject to the penalties
imposed by law for the submission of a materially false or fraudulent instrument. The
undersigned certifies that the statements contained herein are true and correct, and that the
person signing is authorized under the provisions of the TBOC to execute the filing instrument.
JONES &/C�APRTER, INC.
By: U
Name: Robert L. Aylward
Title: Chief Executive Officer and President
Dated: November 30 , 2021
SIGNATURE PAGE
CERTIFICATE OF MERGER-DIVISIVE MERGER
EXHIBIT A
Certificate of Formation
Subsidiary
See attached.
CERTIFICATE OF FORMATION
LIMITED LIABILITY COMPANY
FOR
QUIDDITY ENGINEERING,LLC
1. The filing entity being formed is a limited liability company ("Company").
2. The name of Company is Quiddity Engineering, LLC.
3. Company's initial registered agent is an entity by the name of Capitol Corporate
Services, Inc. The business address of both the registered agent and Company's initial registered
office is 206 E. 91' Street 91300,Austin, Texas 78701-4411.
4. Company will have managers who will manage Company's business and affairs.
The number of persons constituting the initial board of managers is seven. The names and
addresses of the persons who shall serve as the managers on the initial board of managers until
their successors shall have been duly elected and qualified, unless they resign or are removed at
an earlier date, in accordance with Company's company agreement, is as follows:
Bryan P. Kennedy 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Carlos P. Cotton 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Clayton O. Black 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Conlin D. Crow 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Kevin R. Krahn 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Robert L. Aylward 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Tobin T. Synatschk 6330 West Loop South, Suite 150
Bellaire, Texas 77401
5. The purpose for which Company is formed is for the transaction of any and all
lawful purposes for which a limited liability company may be organized under the Texas
Business Organizations Code.
6. Company is formed pursuant to a divisional merger of a domestic filing entity
under a plan of merger pursuant to Section 10.002 of the TBOC.
13119176v1
EXECUTION VERSION
PLAN OF DIVISIONAL MERGER
This Plan of Divisional Merger (this "Plan") is made and entered into this 30th day of
November, 2021, effective as of the Effective Time (defined below) by Jones & Carter, Inc., a
Texas corporation formerly known as J. R. Jones &Associates, Inc. ("Company").
RECITALS
A. Company is a corporation duly organized and validly existing under the laws of
the State of Texas.
B. Pursuant to (i) Sections 10.001, 10.002, and 10.003 of the Texas Business
Organizations Code (as amended, the "TBOC"), and (ii) the Amended and Restated Bylaws
adopted by the board of directors of Company on July 29, 2014 (as amended, the `Bylaws"), the
board of directors of Company have determined that it is appropriate for Company to be divided
by merger (such division being the "Merger") into (A) Company which will survive the merger
as a Texas corporation, and (B) Quiddity Engineering, LLC, a Texas limited liability company
("Subsidiary"), a new Texas limited liability company to be created pursuant to the divisional
merger and that will survive the merger as a wholly-owned subsidiary of Company.
NOW, THEREFORE, in consideration of the Recitals and of the mutual covenants and
agreements herein contained, and in order to prescribe the terms and conditions of the Merger,
the mode of carrying the same into effect, and such other details and provisions as are deemed
necessary or proper, Company hereby agree as follows:
AGREEMENTS:
1. The Merger.
1.1 Merger. Subject to the conditions hereinafter set forth, and in accordance
with Sections 10.001, 10.002, and 10.003 of the TBOC, at the Effective Time (defined
below), Company shall be divided by merger into (a) Company, which will survive the
Merger as a Texas corporation, and (b) Subsidiary, created pursuant to the Merger that
will survive the Merger as a wholly-owned subsidiary of Company.
1.2 Effective Time. The Merger shall become effective at the date and time
designated in the Certificate of Merger filed with the Secretary of State of the State of
Texas (the "Certificate of Merger') to effectuate the Merger in accordance with the
requirements of the TBOC. The date and time upon which the Merger shall become
effective, as defined by this Section 1.2, is referred to in this Plan as the "Effective
Time".
1.3 Effects of the Merger. Following the completion of the Merger, Company
shall continue its existence as a Texas corporation governed by and subject to the laws
of the State of Texas. Pursuant to the Merger, Subsidiary shall be created as a Texas
limited liability company governed by and subject to the laws of the State of Texas.
1.4 Governing Documents. The Certificate of Formation of Company as in
effect at the Effective Time, shall be the Certificate of Formation of Company following
the Merger until thereafter amended in the manner provided by the Bylaws, TBOC, or
other applicable law. The Bylaws, as in effect at the Effective Time, shall be the
bylaws of Company following the Merger until thereafter altered, amended, or replaced
in the manner provided by the Bylaws, the TBOC, or other applicable law. The
certificate of formation and company agreement for Subsidiary are attached to this Plan
as Exhibit A and Exhibit B,respectively.
1.5 Effect of the Merger on Ownership Interests. At the Effective Time, by
virtue of the Merger, and without any action on the part of any holder thereof, the
ownership interests of Company outstanding immediately prior to the Effective Time
shall remain issued, outstanding, and unchanged.
1.6 No Domestic Nonfiling Entities. There are no new domestic nonfiling
entities to be created pursuant to the Merger.
1.7 No Non-Code Organizations. There are no non-code organizations that
will survive the Merger or be created by the Merger.
1.8 Federal Income Tax Consequences. Immediately following the Effective
Time, Subsidiary's existence as separate from Company will be disregarded in
accordance with Section 301.7701-3(b)(1)(ii) of the regulations promulgated by the
United States Treasury Department (the "Treasury Regulations") under the Internal
Revenue Code of 1986, as amended (the "Code"). Accordingly, Company's intent is
that the Merger will not constitute a regarded transaction (and thus will not constitute a
taxable event) for U.S. federal income tax purposes. Company will report the Merger
consistent with this Section 1.8 for U.S. federal income tax purposes, unless otherwise
required by a"final determination"within the meaning of Section 1313(a) of the Code.
2. Assets and Liabilities.
2.1 Assets. At the Effective Time, all right, title, and interest in and to the
assets of Company that are related to the business of providing engineering, surveying,
and planning services across the State of Texas (the "Business"), including but not
limited to, the assets described on Exhibit C ("Subsidiary Assets") shall be, without
reversion or impairment, without any further act or deed, and without any transfer or
assignment having occurred, allocated to and vested in Subsidiary without the need for
any other transfer or action, except as herein provided. At the Effective Time, all right,
title, and interest in and to all the assets of Company not related to the Business,
including, but not limited to, the assets that are described on Exhibit D ("Retained
Assets") shall be, without reversion or impairment, without any further act or deed, and
without any transfer or assignment having occurred, allocated to and remain vested in
Company without the need for any other transfer.
2.2 Liabilities. At the Effective Time, only those debts, liabilities, and
obligations of Company relating to the operation of the Business or the Subsidiary
PLAN OF DIVISIONAL MERGER
2
Assets, including the debts, liabilities, and obligations described on Exhibit E
("Subsidiary Liabilities") shall be allocated to and assumed by Subsidiary, without
reversion or impairment, without any further act or deed, and without any transfer or
assignment having occurred. At the Effective Time, all debts, liabilities, and
obligations of Company not associated with or relating to the Business, including the
debts, liabilities, and obligations described on Exhibit F ("Retained Liabilities") shall be
allocated to and remain in Company, without reversion or impairment, without any
further act or deed and without any transfer or assignment having occurred.
2.3 No Claims. Neither Company nor Subsidiary shall have any causes of
action, rights, or claims against the other as a result of the Merger. If there is any
ambiguity as to the allocation and vesting of assets, debts, liabilities, and obligations
described in this Plan, Company and Subsidiary may, by subsequent written agreement,
clarify the allocation and vesting of property, debts, liabilities, and obligations.
3. Certificates, Further Action. Company will execute and deliver, or cause to be
executed and delivered, all deeds and other instruments necessary to consummate the Merger in
the manner contemplated in this Plan. Company shall take or cause to be taken all such further
or other lawful actions, assignments or assurances that are necessary to (a) vest, perfect, and
confirm title to the Subsidiary Assets in Subsidiary, or its successors and assigns, and
(b) otherwise carry out the purposes of this Plan. In furtherance of the foregoing, Company will
execute and deliver, or cause to be executed and delivered, such amendments and such filings
with the Secretary of State of the State of Texas for purposes of specifically identifying
(i)property constituting either Subsidiary Assets or Retained Assets, including but not limited to
assets to which Company had a right but not title at the Effective Time, and (ii) liabilities
constituting either Subsidiary Liabilities or Retained Liabilities.
4. Defined Terms. Defined Terms. For purposes this Plan, the following terms have
the following meanings:
4.1 "Action" means any claim, action, complaint, cause of action, demand,
lawsuit, hearing, arbitration, notice of violation, litigation, proceeding (including any
civil, criminal, administrative, or appellate proceeding), subpoena, audit, hearing,
inquiry, investigation, citation, summons or similar proceeding of any nature, civil,
criminal, administrative,regulatory or otherwise,whether at law or in equity
4.2 "Books and Records„ means all books and records, including, but not
limited to, books of account, ledgers and general, financial and accounting records,
machinery and equipment maintenance files, customer lists, customer purchasing
histories, price lists, distribution lists, supplier lists, production data, quality control
records and procedures, customer complaints and inquiry files, research and
development files, records and data (including all correspondence with any
governmental entity), sales material and records (including pricing history, total sales,
terms and conditions of sale, sales and pricing policies and practices), strategic plans,
internal financial statements and marketing and promotional surveys;
PLAN OF DIVISIONAL MERGER
3
4.3 "Registered Proprietary Rights" means all registered Company Proprietary
Rights and pending applications for registration of other Proprietary Rights used or held
for use in the Business, including all patents, trademarks, copyrights, and domain
names.
4.4 "Company Proprietary Rights" means all material Proprietary Rights that
were owned or purported to be owned by Company immediately prior to the Effective
Time and related to the Business or otherwise used or held for use in the conduct of the
Business as currently conducted.
4.5 "Liabilities" means any and all debts, liabilities, commitments and
obligations, of whatever kind or nature, primary or secondary, direct or indirect,
whether accrued or fixed, known or unknown, absolute or contingent, matured or
unmatured, or determined or undeterminable.
4.6 "Proprietary Rights" means: (a) inventions (whether patentable or
unpatentable and whether or not reduced to practice) and any improvements thereto,
and patents, patent applications, and patent disclosures, together with all reissuances,
continuations, divisions, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) trademarks, service marks, trade names, trade dress, logos,
slogans, internet domain names, together with all translations, adaptations, derivations,
and combinations thereof, whether registered or unregistered, and together with all
goodwill associated therewith; (c) all copyrightable works and all copyrights in
connection therewith, whether registered or unregistered; (d) all trade secrets and
Confidential Information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information, and business and marketing plans and proposals); (e) all mask
works; (f) all computer software (including source code, object code, data, databases,
and related documentation); (g) social media accounts and pages; and (h) all
registrations for, applications for, renewals for, copies of, and tangible embodiments of
any of the foregoing (in whatever form or medium).
4.7 "Confidential Information" means any information concerning the
businesses and affairs of the Business (but excluding such information to the extent it is
not related to the operation of the Business) as operated by Company that is not already
generally available to the public, whether of a technical, business or other nature,
including, without limitation, the following: (a) all information that is a trade secret
under applicable trade secret or other law; (b) all information concerning product
specifications, recipes, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current
and planned manufacturing or distribution methods and processes, client and customer
lists and files, current and anticipated customer requirements, price lists, market studies,
business plans, computer hardware and software and database technologies, systems,
structures and architectures; and (c) all information concerning historical and current
financial statements, financial projections and budgets, tax returns and accountants'
materials, historical plans, strategic plans, marketing and advertising plans,
PLAN OF DIVISIONAL MERGER
4
publications, contracts, the names and backgrounds of key personnel and personnel
training techniques and materials,however documented.
[Signature Page Follows]
PLAN OF DIVISIONAL MERGER
5
DocuSign Envelope ID: BE329DA4-42F4-4D1 E-BDC9-D7729D39E1 F7
IN WITNESS WHEREOF, the undersigned authorized representative of Company has
executed and agreed to this Plan as of the date first above written.
JONES & CARTER, INC.
a Texas corporation
By:
Name: Robert L. Aylward
Title: Chief Executive Officer and President
SIGNATURE PAGE
PLAN OF DIVISIONAL MERGER
EXHIBIT A
Subsidiary Certificate of Formation
(see attached)
EXHIBIT A
PLAN OF DIVISIONAL MERGER
CERTIFICATE OF FORMATION
LIMITED LIABILITY COMPANY
FOR
QUIDDITY ENGINEERING,LLC
1. The filing entity being formed is a limited liability company ("Company").
2. The name of Company is Quiddity Engineering, LLC.
3. Company's initial registered agent is an entity by the name of Capitol Corporate
Services, Inc. The business address of both the registered agent and Company's initial registered
office is 206 E. 91' Street 91300,Austin, Texas 78701-4411.
4. Company will have managers who will manage Company's business and affairs.
The number of persons constituting the initial board of managers is seven. The names and
addresses of the persons who shall serve as the managers on the initial board of managers until
their successors shall have been duly elected and qualified, unless they resign or are removed at
an earlier date, in accordance with Company's company agreement, is as follows:
Bryan P. Kennedy 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Carlos P. Cotton 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Clayton O. Black 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Conlin D. Crow 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Kevin R. Krahn 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Robert L. Aylward 6330 West Loop South, Suite 150
Bellaire, Texas 77401
Tobin T. Synatschk 6330 West Loop South, Suite 150
Bellaire, Texas 77401
5. The purpose for which Company is formed is for the transaction of any and all
lawful purposes for which a limited liability company may be organized under the Texas
Business Organizations Code.
6. Company is formed pursuant to a divisional merger of a domestic filing entity
under a plan of merger pursuant to Section 10.002 of the TBOC.
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EXHIBIT B
Subsidiary Company Agreement
(see attached)
EXHIBIT B
PLAN OF DIVISIONAL MERGER
EXECUTION VERSION
QUIDDITY ENGINEERING, LLC
a Texas limited liability company
COMPANY AGREEMENT
effective as of December 1, 2021
THE MEMBERSHIP RIGHTS REPRESENTED BY THIS COMPANY AGREEMENT HAVE
NOT BEEN REGISTERED UNDER ANY SECURITIES LAWS AND THE
TRANSFERABILITY OF SUCH MEMBERSHIP RIGHTS IS RESTRICTED. SUCH
MEMBERSHIP RIGHTS MAY NOT BE SOLD, ASSIGNED, OR TRANSFERRED, NOR
WILL ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE
RECOGNIZED BY COMPANY AS HAVING ACQUIRED ANY SUCH MEMBERSHIP
RIGHTS FOR ANY PURPOSES,UNLESS (1)(A) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT,WITH RESPECT TO SUCH MEMBERSHIP RIGHTS SHALL THEN
BE IN EFFECT AND SUCH SALE,ASSIGNMENT,OR TRANSFER HAS BEEN QUALIFIED
UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (B) THE AVAILABILITY OF
AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION SHALL BE
ESTABLISHED TO THE SATISFACTION OF COUNSEL TO COMPANY WITH RESPECT
TO SUCH SALE, ASSIGNMENT, OR TRANSFER, AND (2) THE TERMS AND
CONDITIONS OF THIS COMPANY AGREEMENT HAVE BEEN SATISFIED TO THE
SATISFACTION OF COUNSEL TO COMPANY WITH RESPECT TO SUCH SALE,
ASSIGNMENT, OR TRANSFER.
THE MEMBERSHIP RIGHTS REPRESENTED BY THIS COMPANY AGREEMENT ARE
SUBJECT TO FURTHER RESTRICTIONS AS TO THEIR SALE, TRANSFER,
HYPOTHECATION,OR ASSIGNMENT AS SET FORTH IN THIS COMPANY AGREEMENT
AND AGREED TO BY THE MEMBER. SUCH RESTRICTIONS PROVIDE,AMONG OTHER
THINGS, THAT NO MEMBERSHIP RIGHT MAY BE TRANSFERRED WITHOUT FIRST
OBTAINING THE CONSENT OF COMPANY'S SOLE MEMBER, AND THAT NO VENDEE,
TRANSFEREE, ASSIGNEE, OR ENDORSEE OF A MEMBER SHALL HAVE THE RIGHT
TO BECOME A SUBSTITUTED MEMBER WITHOUT FIRST OBTAINING THE CONSENT
OF COMPANY'S SOLE MEMBER.
13119036v1
TABLE OF CONTENTS
Page
ARTICLE 1 ORGANIZATION
SECTION1.1 General ..........................................................................................................I
SECTION1.2 Name .............................................................................................................I
SECTION 1.3 Purpose and Powers ......................................................................................I
SECTION1.4 Tax Status......................................................................................................I
SECTION 1.5 Principal Office.............................................................................................I
SECTION1.6 Filings............................................................................................................2
SECTION 1.7 Period of Existence........................................................................................2
SECTION 1.8 Winding Up and Termination .......................................................................2
SECTION 1.9 Title to Property ............................................................................................2
SECTION 1.10 Payment of Individual Obligations ...............................................................3
SECTION 1.11 Other Instruments..........................................................................................3
ARTICLE 2 MEMBERS
SECTION 2.1 One Class of Members..................................................................................3
SECTION 2.2 Single Member..............................................................................................3
SECTION 2.3 Special Vote Requirements...........................................................................3
SECTION 2.4 Member Liability...........................................................................................4
ARTICLE 3 BOARD OF MANAGERS
SECTION3.1 General Powers .............................................................................................4
SECTION 3.2 Limitations on Power....................................................................................4
SECTION 3.3 Number and Qualifications ...........................................................................4
SECTION 3.4 Election; Term...............................................................................................4
SECTION 3.5 Regular Meeting............................................................................................4
SECTION3.6 Special Meetings ...........................................................................................4
SECTION 3.7 Notice of Special Meetings ...........................................................................5
SECTION 3.8 Waiver of Notice by Attendance...................................................................5
SECTION 3.9 Quorum and Adjournment............................................................................5
SECTION 3.10 Voting and Manner of Acting .......................................................................5
SECTION 3.11 Presumption of Assent..................................................................................5
SECTION 3.12 Written Consent.............................................................................................5
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SECTION 3.13 Member Advice.............................................................................................6
SECTION 3.14 Transactions with Affiliates..........................................................................6
ARTICLE 4 OFFICERS
SECTION4.1 Number..........................................................................................................6
SECTION 4.2 Election and Tenn.........................................................................................6
SECTION4.3 Removal ........................................................................................................7
SECTION4.4 Vacancies ......................................................................................................7
SECTION 4.5 Chief Executive Officer ................................................................................7
SECTION4.6 President........................................................................................................7
SECTION4.7 Vice Presidents..............................................................................................7
SECTION4.8 Secretary........................................................................................................7
SECTION4.9 Treasurer........................................................................................................8
SECTION4.10 Salaries..........................................................................................................8
SECTION 4.11 Securities of Other Issuers.............................................................................8
ARTICLE 5 LIABILITY LIMITATION, INDEMNIFICATION AND INSURANCE
SECTION 5.1 Limitation on Liability ..................................................................................8
SECTION 5.2 Indemnification .............................................................................................9
SECTION5.3 Insurance .....................................................................................................10
ARTICLE 6 ISSUANCE AND TRANSFER OF UNITS
SECTION 6.1 Authorized Units.........................................................................................10
SECTION 6.2 Ownership of Units .....................................................................................10
SECTION 6.3 Issuance of Units.........................................................................................11
SECTION 6.4 Certificates for Units...................................................................................11
SECTION 6.5 Unit Transfers..............................................................................................11
ARTICLE 7 FINANCIAL MATTERS; BOOKS AND RECORDS
SECTION 7.1 Distributions................................................................................................11
SECTION 7.2 Maintenance of Books and Records............................................................12
SECTION 7.3 Access to Books and Records .....................................................................12
SECTION 7.4 Tax Returns.................................................................................................12
SECTION7.5 Banking.......................................................................................................12
ARTICLE 8 MISCELLANEOUS
SECTION 8.1 Amendments................................................................................................12
SECTION 8.2 Entire Agreement........................................................................................13
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SECTION8.3 Notices.........................................................................................................13
SECTION 8.4 Binding Effect.............................................................................................13
SECTION 8.5 Definitions and Additional Rules................................................................13
SECTION8.6 Headings......................................................................................................14
SECTION8.7 Severability..................................................................................................14
SECTION 8.8 Further Action.............................................................................................14
SECTION8.9 Time ............................................................................................................14
SECTION8.10 Signatures....................................................................................................14
SECTION 8.11 Estoppel Certificate.....................................................................................14
SECTION 8.12 No Third-Party Rights.................................................................................14
SECTION 8.13 Governing Law............................................................................................15
SECTION8.14 Venue ..........................................................................................................15
EXHIBIT A Glossary of Terms
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QUIDDITY ENGINEERING, LLC
a Texas limited liability company
COMPANY AGREEMENT
This COMPANY AGREEMENT ("Agreement') is made and entered into and shall be
effective as of December 1, 2021, for good and valuable consideration, by the Person executing
this Agreement as the Member on the following terms and conditions:
ARTICLE 1
ORGANIZATION
SECTION 1.1 General. Company has been organized as a limited liability company
under the TBOC pursuant to the filing of the Certificate. The Member hereby subscribes to and
adopts this Agreement for purposes of setting forth the terms and conditions pursuant to which
Company will be governed and operated from and after the Effective Date. Except as expressly
provided to the contrary in this Agreement, the rights, duties, status and liabilities of the Member,
and the formation, administration, dissolution, and continuation or termination of Company, shall
be as provided in the TBOC.
SECTION 1.2 Name. The name of Company is "Quiddity Engineering, LLC" and all
Company business must be conducted in that name or such other names that comply with Law as
the Board of Managers may select from time to time.
SECTION 1.3 Purpose and Powers. The purposes of Company are to (a) acquire,buy,
manage,protect, conserve, sell, dispose of, and/or otherwise deal (directly or indirectly) with any
and all property contributed by the Member or acquired by Company; (b) conduct such activities
as may be necessary or appropriate in connection with the foregoing; and (c) transact any and all
lawful business for which a limited liability company may be organized under the TBOC (the
"Business"). Company shall have the power to do any and all acts necessary, appropriate, proper,
advisable, incidental, or convenient to or in furtherance of the purposes of Company, and shall
have, without limitation, any and all powers that may be exercised on behalf of Company by the
Board of Managers pursuant to this Agreement.
SECTION 1.4 Tax Status. Company is a single-member limited liability company.
Notwithstanding anything in this Agreement or Company's other organizational documents to the
contrary, Company's existence separate from its owner shall, solely for U.S. federal income tax
purposes, be disregarded in accordance with the Regulations promulgated under Code Section
7701 for so long as Company qualifies for such"disregarded entity" status. Accordingly, during
such period, profits, losses, and other federal income tax items shall be reported directly by the
Person that constitutes Company's single owner under and for purposes of such Regulations. If at
any time Company's separate existence from its owners is not disregarded under such Regulations,
profits,losses,and other federal income tax items shall be reported for federal income tax purposes
in accordance with Company's then applicable entity classification status under the Code.
SECTION 1.5 Principal Office. The principal office of Company in the United States
shall be at such place as the Board of Managers may designate, which need not be in the
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State of Texas, and Company shall maintain records there as required by the TBOC. Company
may have such other offices as the Board of Managers may designate.
SECTION 1.6 Filings. The Board of Managers shall take any and all actions,including
without limitation, the filing of amendments to the Certificate or new certificates, necessary to
perfect and maintain the status of Company as a limited liability company under the Laws of the
State of Texas. The Board of Managers shall cause amendments to the Certificate to be filed
whenever required by the TBOC. Such amendments may be executed by the Managers or any
Officer designated by the Board of Managers. In the event of the dissolution and completion of
the winding up of Company,the Liquidator shall promptly execute and cause to be filed certificates
of cancellation or termination in accordance with the TBOC and the Laws of any other states or
jurisdictions in which Company has filed certificates.Period of Existence. Company's existence
shall be perpetual unless and until a Termination Event occurs and the winding up and termination
of Company and its business is completed pursuant to the requirements of this Agreement and the
TBOC.
SECTION 1.8 Winding Up and Termination.
1.8.1 Termination Events. Company shall commence winding up upon the first
to occur of any of the following (each, a"Termination Event"): (a) the affirmative vote of
the Member to wind up and terminate Company; (b) a judicial determination that an event
has occurred that makes it unlawful,impossible or impractical to carry on the Business; or
(c) the occurrence of any event that requires dissolution of Company pursuant to any
provision of the TBOC or this Agreement. Notwithstanding any provision of the TBOC to
the contrary, Company shall not dissolve prior to the occurrence of a Termination Event.
1.8.2 Winding Up. Upon the occurrence of a Termination Event, Company
shall continue solely for the purposes of winding up its affairs in an orderly manner in
accordance with the requirements of the TBOC; provide however,that all covenants and
agreements contained in this Agreement shall continue to be fully binding upon the
Member until such time as Company has completed the winding up of its affairs pursuant
to the TBOC.
1.8.3 Appointment of Liquidator. Upon the occurrence of a Termination Event,
the Board of Managers may appoint a Person to wind up Company's affairs in the manner
contemplated in Section 1.8.2 and the TBOC.
1.8.4 Member Cooperation. Following the occurrence of a Termination Event,
the Member shall not take any action that is inconsistent with, or not necessary to or
appropriate for,the winding up of Company's business and affairs.
SECTION 1.9 Title to Property. All property owned by Company shall be owned by
Company as an entity and no Member shall have any ownership interest in such property in its
individual name, and the Member's interest in Company shall be personal property for all
purposes. Notwithstanding anything in this Section 1.9 to the contrary,no property of the Member
shall constitute property of Company unless expressly conveyed to Company in writing.
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SECTION 1.10 Payment of Individual Obligations. Company's credit and assets shall
be used solely for the benefit of Company, and no asset of Company shall be Transferred or
encumbered for, or in payment of, any individual obligation of the Member.
SECTION 1.11 Other Instruments. The Member hereby agrees to execute and deliver
to Company promptly after receipt of a written request therefor, such other and further documents
and instruments, statements of interest and holdings, designations, limited powers of attorney and
other instruments, and to take such other action, as the Board of Managers reasonably determines
is necessary, useful or appropriate to comply with any Laws or enable Company to fulfill its
responsibilities under this Agreement.
ARTICLE 2
MEMBERS
SECTION 2.1 One Class of Members. There shall be one class of members.
The ownership interests held by the Member shall be represented by Units issued pursuant to
Article 5.
SECTION 2.2 Single Member. Company has been organized as a single-member
limited liability company. Company's sole Member is Jones & Carter, Inc., a Texas corporation.
The affirmative vote of the Member, or the authorized representative of the Member, shall
constitute the act of the Member.
SECTION 2.3 Special Vote Requirements. Except as otherwise provided in this
Agreement, and notwithstanding Section 3.1, the following actions shall require an affirmative
vote of the sole Member:
(a) the election or removal of Managers;
(b) authorizing the creation of a series of Units;
(c) authorizing a change in the number of Managers comprising the
Board of Managers;
(d) authorizing the approval of any merger,consolidation, or other form
of reorganization or winding up and dissolution of Company;
(e) the admission of any additional or substitute Member;
(f) authorizing any amendment to the Certificate or this Agreement;
(g) authorizing the revocation of any voluntary dissolution proceedings
initiated by Company; and
(h) authorizing the sale of all or substantially all of the assets of
Company.
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SECTION 2.4 Member Liability. The Member shall not be liable under a judgment,
decree, or order of a court,or in any other manner for the debts or any other obligations or liabilities
of Company. The Member shall be liable only to make its capital contribution, and shall not be
required to lend any funds to Company, or, after its initial contribution to Company contemplated
in Section 6.2, to make any additional contributions, assessments or payments to Company.
ARTICLE 3
BOARD OF MANAGERS
SECTION 3.1 General Powers. The business and affairs of Company shall be
managed by the Board of Managers. The Board of Managers may exercise all of the powers of
Company consistent with the Certificate, this Agreement, the TBOC, and applicable Law.
Notwithstanding anything herein to the contrary, the Member shall not have any power to cause
Company to enter into any transaction or take any action without an affirmative vote or written
consent of the Board of Managers.
SECTION 3.2 Limitations on Power. Notwithstanding any other provisions of this
Agreement, the Board of Managers shall not have authority under this Agreement to cause
Company to take any action or engage in any transaction for which the vote, consent, or approval
of the Member is expressly required by the Certificate,this Agreement,non-variable provisions of
the TBOC, and applicable Law,without first obtaining the requisite vote, consent or approval. In
this regard, (a) the Board of Managers shall not cause Company to take the actions identified in
Section 2.3 without first obtaining the requisite vote, consent, or approval of the Member, and (b)
for the avoidance of doubt, the Member hereby consents and agrees that, subject to Section 2.3,
the Board of Managers is authorized to execute, deliver, and perform agreements, acts,
transactions, and matters described in this Agreement on behalf of Company, without any further
act, approval, or vote of the Member, notwithstanding any other provisions of the TBOC or any
applicable Law.
SECTION 3.3 Number and Qualifications. The number of Managers of Company
shall be two (2), or such other number, not less than one (1), as may be subsequently determined
by the Member; provided, however, that a decrease in the number of Managers shall not have the
effect of shortening the term of any incumbent Manager. Managers need not be residents of the
State of Texas or a Member.
SECTION 3.4 Election, Term. As of the Effective Date,the Managers comprising the
Board of Managers are Bryan P. Kennedy, Carlos P. Cotton, Clayton O. Black, Conlin D. Crow,
Kevin R. Krahn, Robert L. Aylward, and Tobin T. Synatschk, each an individual resident of the
State of Texas. Each Manager shall be appointed by and serve at the discretion of the Member,
and thus shall hold office until his,her or its successor shall have been duly elected and qualified.
Any Manager may be removed at any time,with or without cause,by the Member.
SECTION 3.5 Regular Meeting. A regular meeting of the Board of Managers may be
held if and as determined by the Board of Managers.
SECTION 3.6 Special Meetings. A special meeting of the Board of Managers may be
called by or at the request of any Manager and will be held at the time and place within or outside
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the State of Texas stated in the Notice of the meeting, unless otherwise agreed by a quorum of the
Managers, upon prior Notice as required by Section 3.7.
SECTION 3.7 Notice of Special Meetings. When a special meeting of the Board of
Managers is called pursuant to Section 3.6,Notice shall be delivered not less than one(1)nor more
than sixty (60) Days before the date of the special meeting to each Manager of record entitled to
vote at such meeting. The purpose for the meeting shall be set forth in the Notice. Any proper
matter may be presented for consideration at the meeting, even though the matter is not described
in the Notice for the meeting.
SECTION 3.8 Waiver of Notice by Attendance. The attendance of a Manager at a
meeting of the Board of Managers shall constitute a waiver of Notice of such meeting by the
Manager, except when a Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully called or convened.
Except as may be otherwise provided by Law, the Certificate, or this Agreement, neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the Managers
must be specified in the Notice of or any waiver of Notice of such meeting.
SECTION 3.9 Quorum and Adjournment. Managers holding a majority of the votes
as provided in Section 3.10 shall constitute a quorum for the transaction of business at any meeting
of the Board of Managers. If less than a quorum is present at any meeting of the Managers, a
majority of the Managers present at the meeting may adjourn the meeting without further Notice
other than the announcement of the adjournment of the meeting,until a quorum is present.
SECTION 3.10 Voting and Manner of Acting. Each Manager shall have one (1) vote
with respect to any matter submitted for consideration by the Board of Managers. Except as
otherwise provided elsewhere in this Agreement, by Law or by the Certificate, the vote of
Managers holding a majority of the votes at a meeting shall decide any question brought to the
Board of Managers for consideration at such meeting.
SECTION 3.11 Presumption of Assent. A Manager who is present at a meeting of the
Board of Managers at which action on any matter is taken shall be presumed to have assented to
the action unless the Manager's dissent shall be entered in the minutes of the meeting, or unless
the Manager either files a written dissent to such action with the person acting as the secretary of
the meeting before adjournment thereof or forwards such dissent to Company, in the manner
contemplated in Section 8.3 for providing Notice, within three Business Days after adjournment
of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such
action.
SECTION 3.12 Written Consent. Any action required or permitted to be taken at any
meeting of the Board of Managers may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed
Managers having not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all Managers were present and voted. A copy of any
proposed consent action of the Board of Managers shall be sent to all Managers simultaneously
(or as close thereto as is practical under the circumstances). A copy of each fully executed consent
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action of the Board of Managers shall be sent to each Manager as soon as possible following
execution.
SECTION 3.13 Member Advice. The Board of Managers may, but shall have no
obligation to, seek advice from the Member, either formally or informally, but (a) the Member
shall be paid no compensation for providing any such advice, (b)the Member shall not be deemed
to have taken part in any Company business or operations (and shall be deemed not to have so
taken part), (c) shall not be considered a Company representative of any kind, and (d) shall have
no liability to Company or any other Person with respect to any such advice that may or may not
be provided.
SECTION 3.14 Transactions with Affiliates.
3.14.1 General Authorization. Except as otherwise required by applicable Law,
the Board of Managers is hereby authorized to cause Company to borrow money from,
purchase or lease property from,rent equipment from, sell or lease property to, engage the
services of, or otherwise deal with any Member, acting on its own behalf, or any Affiliate
of any Member; provided, however, that any such borrowing, purchase, sale, or other
transaction shall be made in the ordinary course of Company's business and shall be on
terms and conditions that are commercially reasonable under the circumstances as
determined by the Board of Managers.
3.14.2 Lending Transactions. The Member and any Affiliate of the Member
may,with the approval of the Board of Managers, lend money to, borrow money from, act
as a surety,guarantor,or endorser for,guarantee or assume one or more specific obligations
of, provide collateral for, and transact other similar business with Company, and, subject
to applicable Law, shall have the same rights and obligations with respect thereto as a
Person who is not a Member. The existence of these relationships and acting in such
capacities shall not result in the Member being deemed to be participating in the control of
the business of Company or otherwise affect the limited liability of the Member
contemplated hereunder.
ARTICLE 4
OFFICERS
SECTION 4.1 Number. The Board of Managers may, in its discretion, elect Officers,
including a Chief Executive Officer, President, Secretary, one or more Vice Presidents, a
Treasurer, and assistant Officers. Each Officer shall have such rights and perform such duties as
customarily associated with his or her officer position. Any two or more offices may be held by
the same Person. If any two or more offices are held by the same Person, such Person shall be
entitled to exercise the rights and duties of each such office as set forth hereinafter. If the holder
of two or more offices is required to sign any instruments, certificates, agreements, or any other
documents on Company's behalf, then the signature of such Person in any one of his or her
capacities shall be sufficient to bind Company.
SECTION 4.2 Election and Term. Officers shall be elected whenever, in the best
judgment of the Board of Managers,the best interests of Company would be served thereby. Each
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Officer shall hold office until his or her death, resignation or removal, or until his successor shall
have been duly elected and shall have qualified.
SECTION 4.3 Removal. Any Officer or agent elected or appointed by the Board of
Managers may be removed by the Board of Managers whenever in its judgment the best interests
of Company would be served thereby, but the removal shall be without prejudice to the contract
rights, if any, of the Person so removed.
SECTION 4.4 Vacancies. A vacancy in any office resulting from death, resignation,
removal, disqualification, or otherwise may be filled by the Board of Managers, in its discretion,
for the unexpired portion of the term.
SECTION 4.5 Chief Executive Officer. Subject to the Board of Managers itself, the
Chief Executive Officer shall in general supervise and control all of the day-to-day business and
affairs of Company, including the authority to appoint such agents and employees of Company as
the Chief Executive Officer shall deem necessary (who shall act at the discretion of the Chief
Executive Officer),to prescribe their powers, duties, and compensation, and to delegate authority
to them. The Chief Executive Officer shall have general executive charge, management and
control of the properties, business and operations of Company with all such powers as may be
reasonably incident to such responsibilities. The Chief Executive Officer may sign certificates for
Units, any deeds, mortgages,bonds, contracts, or other instruments which the Board of Managers
has authorized to be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Managers or by this Agreement to some other Officer or agent
of Company, or shall be required by Law to be otherwise signed or executed, and in general shall
perform all duties incident to the office of Chief Executive Officer and such other duties as may
be prescribed by the Board of Managers from time to time.
SECTION 4.6 President. In the absence of the Chief Executive Officer or in the event
of the death, inability, or refusal to act of the Chief Executive Officer, the President, if any, shall
perform the duties of the Chief Executive Officer. The President may agree upon and execute any
leases, agreements, or contracts in the name of Company and may sign certificates for Units, and
shall have such other powers and duties as designated by this Agreement and such other duties as
from time to time may be assigned to him or her by the Chief Executive Officer or by the Board
of Managers.
SECTION 4.7 Vice Presidents. 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 (or in the event there be
more than one Vice President, the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation then in the order of their election), shall perform the
duties of the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President shall perform such other duties as from time
to time may be assigned to him or her by the Chief Executive Officer, President, or the Board of
Managers.
SECTION 4.8 Secretary. The Secretary shall: (a) keep the minutes of the Board of
Manager's meetings in one or more books provided for that purpose; (b) see that all Notices are
given in accordance with the terms of this Agreement or as required by Law; (c) be custodian of
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Company's records and seal, if any; (d)keep a register of the post office address of each member
which shall be furnished to the Secretary by such member; (e) sign with the Chief Executive
Officer or President certificates for Units, the issuance of which shall have been authorized by
resolution of the Board of Managers; (f) have general charge of the Unit transfer books of
Company; and (g) in general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Chief Executive Officer,President,
or the Board of Managers.
SECTION 4.9 Treasurer. The Treasurer, if required by the Board of Managers, shall
give a bond for the faithful discharge of his or duties in such sum and with such surety or sureties
as the Board of Managers shall determine. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of Company;(b)receive and give receipts for monies
due and payable to Company from any source whatsoever; (c)deposit all such monies in the name
of Company in the banks,trust companies, or other depositories as shall be selected in accordance
with the provisions of this Agreement; and (d) in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned to him or her by
the Chief Executive Officer, President, or the Board of Managers.
SECTION 4.10 Salaries. The salaries of the Officers shall be fixed from time to time
by the Board of Managers.
SECTION 4.11 Securities of Other Issuers. The Chief Executive Officer or such other
Person designated by the Board of Managers from time to time shall have power and authority to
Transfer, endorse for Transfer,vote,consent or take any other action with respect to any securities
of another issuer which may be held or owned by Company and to make, execute and deliver any
waiver,proxy or consent with respect to any such securities and otherwise to exercise any and all
rights and powers which Company may possess by reason of its ownership of securities in such
other issuer.
ARTICLE 5
LIABILITY LIMITATION,INDEMNIFICATION AND INSURANCE
SECTION 5.1 Limitation on Liability.
5.1.1 General. To the fullest extent permitted by the TBOC, no Member,
Manager, or Officer shall be personally liable to Company, any Member, or any other
Person for any loss, damages, or claims arising out of or incurred by reason of any act or
omission by such Member, Manager, or Officer (including any loss, damages, or claims
based on the proposition that such Member, Manager, or Officer owes any fiduciary or
other duties to any Person);provided,however,this Section 5.1.1 shall not limit the liability
of a Member, Manager, or Officer for any act or omission that constitutes fraud, gross
negligence, or willful misconduct by such Member, Manager, or Officer. Except for the
duties expressly set forth in this Agreement, a Member, Manager, or Officer shall not be
subject to any duties (including fiduciary duties) with respect to the management of
Company. If applicable Law is hereafter amended to authorize the further elimination or
limitation of the liability of a member, manager, or officer of a limited liability company,
then the liability of a Member, Manager, or Officer shall be limited to the fullest extent
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permitted by then applicable Law. No amendment,modification,or repeal of this provision
will apply to or adversely affect any right or protection of any Member,Manager,or Officer
occurring prior to such amendment, modification, or repeal. THE MEMBER
ACKNOWLEDGES AND AGREES THAT THE MEMBER, IN ITS CAPACITY AS A
MEMBER, AND EACH MANAGER AND OFFICER, MAY APPROVE, DECIDE, OR
DETERMINE ANY MATTER SUBJECT TO THE APPROVAL, DECISION, OR
DETERMINATION OF SUCH MEMBER,MANAGER, OR OFFICER PURSUANT TO
ANY PROVISION OF THIS AGREEMENT IN THE SOLE DISCRETION OF SUCH
MEMBER, MANAGER, OR OFFICER, AND IN EVALUATING OR MAKING SUCH
APPROVAL, DECISION, OR DETERMINATION SUCH MEMBER, MANAGER, OR
OFFICER SHALL HAVE NO DUTY, FIDUCIARY OR OTHERWISE, TO ANY
MEMBER OR COMPANY, IT BEING THE EXPRESS INTENT OF THE MEMBER
THAT SUCH MEMBER, IN ITS CAPACITY AS A MEMBER, AND EACH
MANAGER AND OFFICER, SHALL HAVE THE RIGHT AND ABILITY TO
EVALUATE OR MAKE ANY SUCH APPROVAL, DECISION, OR
DETERMINATION SOLELY ON THE BASIS OF THE MEMBER'S OWN
INTERESTS OR THE INTERESTS OF THE MEMBER(S) THAT DESIGNATED OR
APPOINTED SUCH MANAGER OR OFFICER.
5.1.2 Acknowledgment and Waiver. This Agreement is not intended to, and
does not, create or impose any fiduciary duty on any Member, Manager, or Officer.
Furthermore, Company and the Member each hereby waives any and all fiduciary duties
that, absent such waiver, may be implied by applicable Law, and in so doing hereby
acknowledges and agrees that the duties and obligations of each Member, Manager, or
Officer to each other and to Company are only as expressly set forth in this Agreement.
The provisions of this Agreement, to the extent that they restrict the duties and liabilities
of a Member,Manager,or Officer otherwise existing at Law or in equity, are agreed by the
Member to replace such other duties and liabilities of such Member, Manager, or Officer.
To the extent that, at Law or in equity, any Member, Manager, or Officer has duties and
liabilities related thereto to Company or to any other Person, a Member, Manager, or
Officer acting under this Agreement shall not be liable to Company or to any such other
Person for such Member's,Manager's, or Officer's good faith reliance on this Section 5.1.
SECTION 5.2 Indemnification. Company shall, to the fullest extent now or hereafter
permitted, and in the manner provided under applicable Law, including Chapter 8 of the TBOC
(or the corresponding provision of any subsequent Law), as amended, indemnify, defend, protect,
and hold harmless each Covered Person, from and against all actions, suits, or proceedings, and
all other claims, demands, losses, damages, liabilities, judgments, awards, penalties, fines,
settlements,costs, and expenses (including court costs and reasonable attorneys' fees), arising out
of the management of Company or such Person's service or status as a Covered Person
("Indemnifiable Items"). THE INDEMNIFICATION OBLIGATIONS PROVIDED IN THIS
SECTION 5.2 ARE INTENDED TO BE ENFORCEABLE AGAINST COMPANY AND THE
MEMBER IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE HEREOF
NOTWITHSTANDING TEXAS' EXPRESS NEGLIGENCE RULE OR ANY OTHER
SIMILAR RULE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNIFICATION
OBLIGATIONS BECAUSE OF THE SIMPLE NEGLIGENCE (WHETHER SOLE,
CONCURRENT, ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF
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ANY OF THE COVERED PERSONS. ACCORDINGLY, THE INDEMNIFICATION
PROVIDED HEREUNDER SHALL APPLY TO MATTERS THAT ARISE OUT OF THE
NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OR RESPONSIBILITY BY A
COVERED PERSON; PROVIDED, HOWEVER, THAT THE INDEMNIFICATION
PROVIDED HEREUNDER SHALL NOT APPLY TO MATTERS ARISING OUT OF THE
GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR WILLFUL BREACH OF THIS
AGREEMENT BY A COVERED PERSON. No amendment, modification, or repeal of the
provisions of this Section 5.2 will apply to or adversely affect any right or protection of any
Covered Person hereunder for or with respect to any acts or omissions of any Covered Person
occurring prior to such amendment, modification or repeal.
5.2.1 Advance Pam. Company shall pay or reimburse, in advance of the
final disposition of any applicable proceeding, reasonable expenses incurred by an
Indemnified Party to the fullest extent now or hereafter permitted by the TBOC (or the
corresponding provision of any subsequent Law), as amended.
5.2.2 Rights Cumulative. The right to indemnification and the advance
payment or reimbursement of expenses conferred in this Section 5.2 shall be cumulative
of,and in addition to,any and all other rights,remedies and resources to which the Covered
Persons are entitled at Law or in equity. The provisions of this Section 5.2 shall constitute
a contract between Company, on the one hand, and each Covered Person who served in
such capacity at any time while this Section 5.2 is in effect, on the other hand, pursuant to
which Company and each such Covered Person intend to be bound. No amendment,repeal,
or modification of this Section 5.2 that adversely affects the rights of a Covered Person to
indemnification for Indemnifiable Items incurred or relating to a state of facts existing prior
to such amendment, repeal, or modification shall apply in such a way as to eliminate or
reduce such Covered Person's entitlement to indemnification for such Indemnifiable Items.
SECTION 5.3 Insurance. To the fullest extent permitted by the TBOC, and with limits
and at a cost acceptable to the Board of Managers, Company may purchase and maintain, at its
own expense,insurance to protect itself, any Covered Person against any claims,demands,losses,
damages, liabilities,judgments, awards,penalties, fines, settlements, costs, and expenses whether
or not Company would have the power to indemnify such person against such amounts under this
Article 5.
ARTICLE 6
ISSUANCE AND TRANSFER OF UNITS
SECTION 6.1 Authorized Units. Ownership interests in Company shall be represented
by Units. Company is authorized to issue any number of Units as may be determined by the Board
of Managers and the Member. There may be fractional Units.
SECTION 6.2 Ownership of Units. Pursuant to Section 2.2, as of the Effective Date,
1,000 Units, constituting all issued and outstanding Units, are held by Company's sole Member.
Pursuant to the Merger Documents, Company was allocated certain assets and liabilities of
Member in consideration for the issuance of such Units. Accordingly, in connection with the
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execution and delivery of this Agreement, Member shall not be required to make any capital
contribution to Company in exchange for the issuance of the foregoing Units.
SECTION 6.3 Issuance of Units. The Board of Managers may issue Units, subject to
Section 6.1, (a)to a Person(and admit such Person as a new Member)upon Company's receipt of
a capital contribution from such Person, or in consideration for the provision of or an agreement
to provide services to Company, subject to the terms and conditions of this Agreement, or (b)
pursuant to a permitted Transfer. Exhibit A shall be revised to reflect the issuance of Units
following the Effective Date.
SECTION 6.4 Certificates for Units. All Units shall initially be uncertificated.
Ownership certificates representing Units shall be issued from time to time as the Board of
Managers may determine is necessary or appropriate, and shall be in such form that is consistent
with the requirements of Law and the Certificate, as the Board determines from time to time. All
issued certificates shall be consecutively numbered or otherwise identified. The name and address
of the Person to whom the Units represented thereby are issued,with the number of Units and date
of issue, shall be entered on the Unit transfer books of Company. All certificates surrendered to
Company for transfer shall be canceled and no new certificate shall be issued until the former
certificate for a like number of Units shall have been surrendered and canceled;provided,however,
that in the case of a lost,destroyed, or mutilated certificate,a new one may be issued therefor upon
such terms and the Member providing such indemnity to Company as the Board may prescribe.
SECTION 6.5 Unit Transfers A Transfer of Units pursuant to a Transfer of
Membership Rights shall be made only on the Unit transfer books of Company, by the holder of
record thereof, or by the holder of record's legal representative or attorney-in-fact authorized by
power of attorney (or such other evidence of authority as may be appropriate) duly executed and
filed with Company, and upon surrender for cancellation of the certificate representing such Units.
Except as otherwise specifically provided in this Agreement,the Person in whose name Units stand
on the books of Company shall be deemed by Company to be the owner thereof for all purposes.
Exhibit A shall be revised to reflect any permitted Transfer of any Units.
ARTICLE 7
FINANCIAL MATTERS; BOOKS AND RECORDS
SECTION 7.1 Distributions.
7.1.1 Distributions of Net Cash Flow. Except as otherwise expressly provided
in this Agreement, Net Cash Flow, if any, shall be distributed from time to time as the
Board of Managers determines to the Member.
7.1.2 Distributions Upon Liquidation. Following the occurrence of a
Termination Event, distributions shall be made to the Member.
7.1.3 Restrictions Upon Distributions. No distribution shall be made pursuant
to this Article 7 if and to the extent that it is prohibited under the TBOC.
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7.1.4 No Return Obligation. There shall be no requirement for any Member to
return any distributions by Company to Company unless such distributions were made in
contravention of the TBOC or other applicable Law.
SECTION 7.2 Maintenance of Books and Records. Company shall maintain at its
principal place of business separate books of account for Company which shall show a true and
accurate record of all costs and expenses incurred, all charges made, all credits made and received,
and all income derived in connection with the conduct of Company and the operation of the
Business in accordance with this Agreement and the TBOC.
SECTION 7.3 Access to Books and Records. The Member, or any agents or
representatives of the Member, at the Member's own expense, may examine, copy and audit the
books and records of Company and make copies of and abstracts from the financial and operating
records and books of account of Company, and discuss the affairs, finances and accounts of
Company with the independent accountants of Company, all at such reasonable times and as often
as the Member or any agents or representatives of the Member may reasonably request. The rights
granted to the Member pursuant to this Section 7.3 are expressly subject to compliance by the
Member with the confidentiality procedures and guidelines of Company, as such procedures and
guidelines may be established from time to time.
SECTION 7.4 Tax Returns. Company shall furnish the Member with such items as
may be required under and in accordance with applicable tax Law. Upon written request by the
Member, Company also shall either allow the Member an opportunity to review, or furnish to the
Member a copy of, the tax returns filed by Company, together with any schedules and other
information that are relevant to the Member's own tax affairs.
SECTION 7.5 Banking. All funds of Company shall be deposited in Company's name,
in such account or accounts with such financial institutions as may be approved by the Board of
Managers from time to time. Withdrawals of funds from Company accounts shall be made on
such signature or signatures as the Board of Managers may approve from time to time.
ARTICLE 8
NHSCELLANEOUS
SECTION 8.1 Amendments. This Agreement may be amended by the sole Member at
any time. Notwithstanding anything herein to the contrary, the Board of Managers shall have the
power and authority to amend this Agreement at any time, without the necessity of obtaining the
consent or approval of the Member, for purposes of(a) reflecting the admission of an additional
Member in accordance with the terms of this Agreement,(b)reflecting the Transfer of Membership
Rights in accordance with the terms of this Agreement, (c) complying with applicable Law, or(d)
resolving an ambiguity in the existing terms and provisions of this Agreement. The Board of
Managers shall promptly notify the Member of any amendments made pursuant to the foregoing
power and authority, and provide the Member with complete copies of the changes thereby made
to the Agreement; provided, however, that the failure of the Board of Managers to so notify the
Member shall not affect the validity of any such amendment.
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SECTION 8.2 Entire Agreement. This Agreement sets forth the entire agreement
among the parties with respect to the subject matter hereof, and supersedes all prior agreements
and understandings among the parties with respect to the subject matter hereof.
SECTION 8.3 Notices. All notices, requests, demands, claims, and other
communications pertaining to this Agreement ("Notices") must be in writing, must be sent to the
addressee at the address set forth in this Section 8.3, or at such other address as the addressee has
designated by a Notice given in the manner set forth in this Section 8.3, and must be sent by (a)
courier, hand delivery, or overnight express, or (b) prepaid, certified U.S. mail. Notices will be
deemed given when delivered and receipted for (or when attempted delivery is refused at the
address where sent), or, with regard to Notices sent via prepaid, certified U.S. mail, at the time
indicated on the stamped Certified Mail Receipt properly received from U.S. Post Office;
provided, however, that Notices received or delivered after 5:00 p.m. on any Business Day and
before 8:59 a.m.the next Business Day,local time of the destination address,will be deemed given
at 9:00 a.m. on such next Business Day. The addresses for Notices are as follows:
Company: Quiddity Engineering, LLC
6330 West Loop South, Suite 150
Bellaire, Texas 77401
Member: To the address set forth on the signature page hereof.
SECTION 8.4 BindingEffect.ffect. Every covenant,term, and provision of this Agreement
shall be binding upon and inure to the benefit of the Member and the Member's heirs, legatees,
legal representatives, successors, transferees, and assigns.
SECTION 8.5 Definitions and Additional Rules. For purposes of this Agreement, the
terms set forth in Exhibit A shall have the meanings specified in Exhibit A. For purposes of this
Agreement, unless the context shall require otherwise: (a) reference to "include," "includes," and
"including" shall be deemed to be followed by the phrase "without limitation"; (b)reference in
this Agreement to"herein,""hereby," or"hereunder," or any similar formulation, shall be deemed
to refer to this Agreement as a whole; (c)references to Articles and Sections refer to Articles and
Sections of this Agreement; (d)words importing the singular number or plural number shall
include the plural number and singular number respectively; (e) words importing the masculine
gender shall include the feminine and neuter genders and vice versa; (f)references to Exhibits and
Schedules are to the Exhibits and Schedules attached to this Agreement, each of which is made a
part hereof for all purposes; (g) all references to "$" or dollar amounts will be to lawful currency
of the United States of America, (h) any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented, including (in the
case of agreements or instruments)by waiver or consent and(in the case of statutes)by succession
of comparable successor statutes and references to all attachments thereto and instruments
incorporated therein, (i) references to a Person are also to the Person's permitted successors and
assigns, 0)the term "or"means "and/or", and(k)the term "any"means "any one,more than one,
or all".
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SECTION 8.6 Headings. Section and other headings contained in this Agreement are
for reference purposes only and are not intended to describe, interpret, define, or limit the scope,
extent, or intent of this Agreement or any provision hereof.
SECTION 8.7 Severability. Except as otherwise provided in the succeeding sentence,
every provision of this Agreement is intended to be severable, and, if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity or legality of the remainder of this Agreement.
SECTION 8.8 Further Action. The Member agrees to perform all further acts and
execute, acknowledge, and deliver any further documents that may be reasonably necessary,
appropriate, or desirable to carry out the provisions of this Agreement, and to take such other
action, as the Board of Managers determines is necessary, useful or appropriate to comply with
any Laws, rules or regulations or enable Company to fulfill its responsibilities under this
Agreement. In this regard,the Member hereby agrees to execute and deliver to Company promptly
after receipt of a written request therefor, such other and further documents and instruments,
statements of interest and holdings,designations, limited powers of attorney and other documents
and instruments,and to take such other action, as the Board of Managers determines are necessary,
useful or appropriate to either comply with Law or enable Company to fulfill its responsibilities
under this Agreement.
SECTION 8.9 Time. For purposes of computing any period of time pursuant to this
Agreement, the Day of the act, event or default from which the designated period of time begins
to run shall not be included, but the time shall begin to run on the next succeeding Day.
SECTION 8.10 Signatures. This Agreement shall be considered executed and delivered
by the Member upon delivery via email,facsimile,portable document format(pdf) signature of an
authorized representative of the Member or any electronic signature of an authorized
representative of the Member complying with the U.S. federal ESIGN Act of 2000 (including
DocuSign).
SECTION 8.11 Estoppel Certificate. The Member shall at any time and from time to
time upon not less than twenty (20) Days prior Notice from the Board of Managers execute,
acknowledge, and send to Company a statement in writing certifying that this Agreement is
unmodified and in full force and effect(or if there have been modifications,that the Agreement is
in full force and effect as modified and stating the modifications) and stating whether or not, as to
the Member, if the Member is in default in keeping, observing, or performing any of the terms
contained in this Agreement, and, if in default, specifying each default (limited to those defaults
of which the Member has knowledge).
SECTION 8.12 No Third-Party Rights. Except for the benefits provided to the
Indemnified Parties described in Section 5.2, nothing expressed or referred to in this Agreement
will be construed to give any Person other than the Member(and Company) any legal or equitable
right, remedy or claim under or with respect to this Agreement or any provision of or benefits
provided under this Agreement. This Agreement and all of its provisions and conditions are for
the sole and exclusive benefit of the Member (and Company) and their permitted successors and
assigns.
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SECTION 8.13 Governing. THIS AGREEMENT, AND ALL CLAIMS OR
CAUSE OF ACTION(WHETHER IN CONTRACT,IN TORT OR BY STATUTE)THAT MAY
BE BASED UPON, ARISE OUT OF, OR RELATE TO THIS AGREEMENT, OR THE
NEGOTIATION,EXECUTION, OR PERFORMANCE OF THIS AGREEMENT(INCLUDING
ANY CLAIM OR CAUSE OF ACTION BASED UPON,ARISING OUT OF,OR RELATED TO
ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH THIS
AGREEMENT OR AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT), SHALL
BE GOVERNED BY, ENFORCED IN ACCORDANCE WITH, AND BE SUBJECT TO THE
REMEDIES AVAILABLE UNDER THE INTERNAL LAWS OF THE STATE OF TEXAS,
INCLUDING ITS STATUTES OF LIMITATION AND BURDENS OF PROOF AND
AVAILABLE REMEDIES.
SECTION 8.14 Venue. THE EXCLUSIVE VENUE FOR CONDUCTING ANY
LEGAL ACTION, SUIT, OR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF
OR ANY MATTER ARISING UNDER OR IN CONNECTION WITH, OR CONTEMPLATED
BY THIS AGREEMENT, INCLUDING THE CONDUCT OF ANY MEDIATION OR OTHER
ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS, SHALL BE HARRIS COUNTY,
TEXAS, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS LOCATED IN HARRIS COUNTY,TEXAS IN ANY SUIT,
ACTION OR PROCEEDING AND WAIVES ANY OBJECTION BASED ON IMPROPER
VENUE OR FORUM NON CONVENIENS.
[SIGNATURE PAGE ATTACHED]
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SIGNATURE PAGE
Attached to and made a part of the
QUIDDITY ENGINEERING, LLC
COMPANY AGREEMENT
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of
December 1, 2021.
SOLE MEMBER:
JONES & CARTER, INC.
By:
Name: Robert L. Aylward
Title: Chief Executive Officer and President
Address for Notice:
6330 West Loop South, Suite 150
Bellaire, Texas 77401
SIGNATURE PAGE
COMPANY AGREEMINT
QUIDDITY ENGINEERING,LLC
EXHIBIT A
QUIDDITY ENGINEERING, LLC
COMPANY AGREEMENT
GLOSSARY OF TERMS
As used in this Agreement,the following terms have the meanings set forth below:
"Affiliate" means, with respect to any Person, (a) any Person directly or indirectly
controlling, controlled by, or under common control with such Person, (b) any officer, director,
manager,member or general partner of such Person, or(c) any Person who is an officer, director,
manager,general partner, or trustee of any Person described in clauses(a) and(b) of this sentence.
For purposes of this definition,the term"controls,""is controlled by,"or"is under common control
with" shall mean the possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement"has the meaning set forth in the introductory paragraph.
"Board" and "Board of Managers" means all Managers collectively and shall be as
described in this Agreement, including Article 3.
"Business"has the meaning set forth in Section 1.3.
"Business Day" means any day other than a Saturday, a Sunday, or a holiday on which
national banking associations in the State of Texas are closed.
"Certificate" means the Certificate of Formation filed with the Secretary of State of the
State of Texas pursuant to the Merger Documents.
"Code"means the Internal Revenue Code of 1986, as amended, modified or supplemented
from time to time (or any corresponding provisions of succeeding Law).
"Company" means Quiddity Engineering, LLC, the Texas limited liability company
formed pursuant to the filing of the Certificate and governed by such Certificate and further
organized pursuant to the terms and conditions of this Agreement, as it may be amended and/or
restated from time to time.
"Covered Person" means (a) each Member, (b) each Governing Person of Company,
(c) each Former Governing Person of Company, (d) each Delegate of Company, and (e) each
Officer or former Officer.
"Day"means a calendar day; provided, however, that, if any period of Days referred to in
this Agreement shall end on a Day that is not a Business Day, then the expiration of such period
shall be automatically extended until the first succeeding Business Day.
"Delegate"has the meaning given to the term"delegate"in Section 8.001(1) of the TBOC.
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"Effective Date"means the first date set forth in the introductory paragraph.
"Former GoverningPerson"erson"has the meaning given the term "former governing person"in
Section 8.001(4) of the TBOC.
"Governing Person" has the meaning given the term "governing person" in Section
1.002(37) of the TBOC.
"Interest" means a Person's share of the income, gain, loss, deduction and credits of, and
the right to receive distributions from, Company.
"IRS"means the Internal Revenue Service.
"Law" means any applicable constitutional provision, statute, act, code, law, regulation,
rule, ordinance,order,decree,ruling,proclamation,resolution,judgment, decision, declaration, or
interpretative or advisory opinion or letter of any governmental authority (including the TBOC
and the Code).
"Liquidator"means a Person appointed to oversee the liquidation of Company pursuant to
this Agreement or the TBOC.
"Manager"means any Person serving on the Board of Managers from time to time pursuant
to Article 3.
"Member"means any Person executing this Agreement as a member as of the date of this
Agreement or hereafter admitted to Company as a member as provided in this Agreement,but such
term does not include any Person who has ceased to be a member in Company. All references in
this Agreement to Member shall mean the member identified in Section 2.2.
"Membership Rights" means with respect to the Member, (a) the Member's status as a
Member; (b)that Member's Units and Interest; (c) all other rights,benefits and privileges enjoyed
by that Member (under the TBOC, the Certificate,this Agreement or otherwise) in its capacity as
a Member, including that Member's rights to vote, consent and approve and otherwise to
participate in the management of Company; and (d) all obligations, duties and liabilities imposed
on that Member (under the TBOC, the Certificate, this Agreement or otherwise) in its capacity as
a Member, including any obligations to make capital contributions.
"Merger Documents"means,together,that certain Plan of Divisional Merger approved and
authorized by the Member and that certain Certificate of Merger accepted for filing by the
Secretary of State of the State of Texas effective as of the Effective Date.
"Net Cash Flow"means all cash funds of Company from any source,without reduction for
any non-cash charges, but less cash funds used to pay current operating expenses and to pay or
establish reasonable reserves for future expenses, debt payments (including loans made to
Company by the Member), capital improvements, and replacements as determined by the Board
of Managers in its Sole Discretion.
"Notices"has the meaning set forth in Section 8.3.
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13119036v1
"Officer" means any Person designated and properly serving as an officer of Company
appointed by the Board of Managers pursuant to Article 4.
"Person" means any individual, company (whether general or limited), limited liability
company, corporation,trust, estate, association, nominee, or other entity.
"Regulations" means the regulations promulgated by the United States Department of the
Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of
the Regulations shall include any corresponding provision or provisions of succeeding, similar,
substitute,proposed, or final Regulations.
"Sole Discretion" means with respect to any Person, that Person's sole and absolute
discretion,with or without cause, and subject to such conditions as it shall deem appropriate.
"TBOC" means the Texas Business Organizations Code, as amended, modified or
supplemented from time to time (or any corresponding provisions of succeeding Law), including
applicable provisions of the TLLCL.
"Termination Event"has the meaning set forth in Section 1.8.1.
"Transfer"means,as a noun, any voluntary or involuntary,direct or indirect,transfer, sale,
assignment, gift, pledge, hypothecation, encumbrance or other disposition and, as a verb,
voluntarily or involuntarily, directly or indirectly, to transfer, sell, assign, give, pledge,
hypothecate,encumber or otherwise dispose of an item. The term"Transfer"shall also specifically
include(a)the transfer of all or any part of the beneficial ownership of,the voting power associated
with, or any other right, power, or interest, in such item, including Membership Rights, and (b)
with respect to a trust, the (i) acquisition of a beneficial interest in the trust by a charity or other
legal entity, and (ii)the exercise of a special or general power of appointment with respect to any
interest in the trust. For the avoidance of doubt, the term "Transfer" as it relates to a Unit or
Membership Rights does not include the transfer of an ownership interest in a Member.
"Unit" means units representing the entire ownership interest and rights of a Member in
Company at any particular time as a Member, including all Membership Rights held by the
Member and the right of the Member to any and all rights and benefits to which a Member is
entitled pursuant to the terms of this Agreement.
[END OF EXHIBIT A]
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EXHIBIT C
Subsidiary Assets
L All of Company's right, title, and interest in and to tangible personal property of
Company owned by Company prior to the Effective Time.
IL All of Company's right, title, and interest in and to the equipment, vehicles, and trailers
of Company owned by Company prior to the Effective Time.
III. All licenses, sublicenses, consent to use agreements, settlements, coexistence agreements,
covenants not to sue, waivers, releases, permissions, and other contracts, whether written
or oral, relating to any Registered Proprietary Right to which Company was a party,
beneficiary or otherwise bound, in each case, immediately prior to the Effective Time and
related to the Business (collectively,the"Intellectual PropertyAgreements").
IV. All Registered Proprietary Rights.
V. The rights to the names "Jones I Carter," "Cotton Surveying Company," "Charlie
Kalkomey Surveying," "Brown Engineering Company, Inc.," "McCullah Surveying,"
"Pleger Reue & Associates," "Pledger Kennedy Rogers Kalkomey, Inc.," "Brehnam
Blueprint," "Terra Firma Surveying, Inc.," "Sitech Engineering, Inc.," "Terra Firma Land
Surveying," "Pledger Kalkomey Surveying," and"Montgomery & Barnes, Inc."
VI. Bank accounts and the cash, bank deposits and deposits in transit, including checks and
drafts, in and with respect to such bank accounts.
VIL All certificates of deposit, negotiable instruments, marketable securities, and other cash
equivalents.
VIII. All leases for real property (the "Leases").
IX. All contracts to which Company is a party, including, without limitation, that certain
Guaranty Agreement, dated July 16, 2021, entered into by Company in favor of Truist
Bank (collectively, with the Intellectual Property Agreements and the Leases, the
"Assigned Contracts").
X. All accounts or notes receivable arising from or related to the Business, and any security,
claim, remedy, or other right related to any of the foregoing.
XI. All permits, licenses, approvals, authorizations registrations, certificates, variances and
similar rights obtained from any governmental entity which are held by Company related
to the conduct of the Business or to the ownership and use of the other Subsidiary Assets.
XII. All rights to any Actions of any nature available to or being pursued by Company to the
extent related to the Business, the other Subsidiary Assets or the Subsidiary Liabilities,
whether arising by way of counterclaim or otherwise.
EXHIBIT C
PLAN OF DIVISIONAL MERGER
XIIL All prepaid expenses, credits, advance payments, claims, security, refunds, rights of
recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees
(including any such item relating to the payment of taxes) related to the Business, the
other Subsidiary Assets or the Subsidiary Liabilities.
XIV. All of Company's rights under warranties, indemnities and all similar rights against third
parties to the extent related to any of the other Subsidiary Assets.
XV. All insurance benefits, including rights and proceeds, arising from or related to the
Business, the other Subsidiary Assets or the Subsidiary Liabilities.
XVL All Books and Records related to the Business, the other Subsidiary Assets or the
Subsidiary Liabilities.
XVII. All goodwill associated with any of the foregoing.
EXHIBIT C
PLAN OF DIVISIONAL MERGER
EXHIBIT D
Retained Assets
L All Shareholder Agreements and related obligations between Company and any
shareholder of Company.
IL Any loan agreement by or between Company, on the one hand, and any shareholder of
Company, on the other.
III. All rights and obligations of Company under that certain Commercial Security
Agreement, dated July 31, 2020, between Company, as grantor, and Truist Bank, as
lender.
IV. All rights and obligations of Company under that certain Promissory Note, dated July 1,
2019,between Company, as maker, and James C. Jones, as payee.
V. All right and obligations of Company under that certain Termination Agreement, dated
May 2021,between Erich Peterson and Company.
VI. All ownership interests of Company in Jones & Carter Properties, L.L.C., a Texas limited
liability company.
EXHIBIT D
PLAN OF DIVISIONAL MERGER
EXHIBIT E
Subsidiary Liabilities
L All Liabilities of Company under any Assigned Contract, including Liabilities arising out
of any breach or non-performance thereof.
II. All Liabilities of Company with respect to its employees.
III. All Liabilities related to, or arising out of, the Subsidiary Assets.
EXHIBIT E
PLAN OF DIVISIONAL MERGER
EXHIBIT F
Retained Liabilities
L All Liabilities of Company under any contract or agreement that is not an Assigned
Contract, including Liabilities arising out of any breach or non-performance thereof.
IL All Liabilities relating to or arising out of the Retained Assets.
III. All Liabilities arising out of or related to Company's status as an S corporation for
federal income tax purposes.
EXHIBIT F
PLAN OF DIVISIONAL MERGER
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