U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
(Mark One)
X Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934
For the quarterly period ended September 30, 1999
Transition report under Section 13 or 15(d) of the Exchange Act
For the transition period from to
Commission file number 1-8631
Dover Investments Corporation
(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware 94-1712121
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization Identification No.)
100 Spear Street, Suite 520, San Francisco, CA 94105
(Address of Principal Executive Offices) (Zip Code)
(415) 777-0414
(Issuer's Telephone Number)
(Former Name, Former Address and Former Fiscal Year, if Changed Since Last
Report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for
such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS
The number of shares outstanding of each of the issuer's classes of
common stock, as of October 31, 1999 were as follows:
Class A Common Stock, $.01 par value 806,894 Shares of Common Stock
Class B Common Stock, $.01 par value 315,396 Shares of Common Stock
Transitional Small Business Disclosure Format
(Check one):
Yes No X
DOVER INVESTMENTS CORPORATION
INDEX
Page
Number
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets
as of September 30, 1999 and December 31, 1998.................. 3
Consolidated Statements of Operations for the Three
Months and Nine Months Ended September 30, 1999 and 1998........ 4
Consolidated Statement of Stockholders'
Equity for the Nine Months Ended September 30, 1999............. 5
Consolidated Statements of Cash Flows
for the Nine Months Ended September 30, 1999 and 1998........... 6
Notes to Consolidated Financial Statements...................... 7
Item 2. Management's Discussion and Analysis or Plan of Operation....... 7
PART II - OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K................................10
Signatures .....................................................11
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DOVER INVESTMENTS CORPORATION
CONSOLIDATED BALANCE SHEETS
September 30, 1999 and December 31, 1998
(in thousands, except share amounts)
09-30-99 12-31-98
ASSETS
Cash and Cash Equivalents $ 13,516 $ 8,622
Restricted Cash 405 394
Homes Held for Sale 1,127 2,136
Property Held for Development 17,860 23,302
Notes Receivable 2,646 1,678
Other Assets 1,300 1,335
TOTAL ASSETS $36,854 $37,467
LIABILITIES AND STOCKHOLDERS' EQUITY
Accrued Interest and Other Liabilities $ 2,535 $ 1,800
Notes Payable 3,720 12,650
Minority Interest in Joint Venture 1,488 220
TOTAL LIABILITIES 7,743 14,670
STOCKHOLDERS' EQUITY
Class A Common Stock Par Value, $.01
Per Share -- Authorized 2,000,000
Shares; Issued 806,894 at
9/30/99 and 806,864 at 12/31/98 8 8
Class B Common Stock Par Value, $.01
Per Share -- Authorized 1,000,000
Shares; Issued 315,396 at
9/30/99 and 320,137 at 12/31/98 3 3
Additional Paid-In Capital 21,811 20,441
Retained Earnings from January 1, 1993 7,314 2,682
Treasury Stock (250 at 9/30/99
and 60,066 at 12/31/98 of Class A
Common Stock and 4,560 of Class B
Common Stock) (25) (337)
TOTAL STOCKHOLDERS' EQUITY 29,111 22,797
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $36,854 $37,467
See accompanying Notes to Consolidated Financial Statements.
DOVER INVESTMENTS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three Months and Nine Months Ended September 30, 1999 and 1998
(in thousands, except share amounts)
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
Home Sales $ 20,528 $ 5,045 $53,491 $10,312
Lot Sales 1,280 - 3,875 2,021
Total Sales 21,808 5,045 57,366 12,333
Cost of Home Sales 15,474 4,099 40,173 8,427
Cost of Lot Sales 998 - 3,023 1,653
Total Cost of Sales 16,472 4,099 43,196 10,080
Minority Interest in
Joint Venture 1,211 1 3,593 9
GROSS PROFIT 4,125 945 10,577 2,244
Selling Expenses 1,40 519 2,968 801
General and Administrative
Expenses 213 168 652 489
1,619 687 3,620 1,290
Operating Income 2,506 258 6,957 954
Other Income
Interest 198 48 544 125
Fees 51 - 51 32
Total Other Income 249 48 595 157
Income before Income Taxes 2,755 306 7,552 1,111
Provision for Income Taxes 1,072 128 2,920 466
NET INCOME $1,683 $ 178 $4,632 $ 645
Basic Earnings Per Share $ 1.55 $ 0.17 $ 4.28 $ 0.62
Diluted Earnings Per Share $ 1.52 $ 0.16 $ 4.18 $ 0.59
Weighted Average Number of
Shares Outstanding:
Basic: 1,082,933 1,042,697 1,082,933 1,042,697
Diluted: 1,107,907 1,086,799 1,107,907 1,086,799
See accompanying Notes to Consolidated Financial Statements.
<TABLE>
DOVER INVESTMENTS CORPORATION
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
For the Nine Months Ended September 30, 1999
(in thousands)
<CAPTION>
Additional Treasury
Common Stock Paid-In Retained Stock
Class A Class B Capital Earnings at Cost Total
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1999 $ 8 $ 3 $20,441 $ 2,682 $ (337) $22,797
Re-issuance of Treasury
Stock $ - - 15 - 312 327
Realization of Prequasi-
reorganization Net Operating
Loss Tax Benefits $ - - 1,355 - - 1,355
Net Income $ - - - 4,632 - 4,632
Balance at September 30, 1999 $ 8 $ 3 $21,811 $7,314 $ (25) $29,111
<FN>
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
DOVER INVESTMENTS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Nine Months Ended September 30, 1999 and 1998
(in thousands)
Nine Months
Ended September 30,
1999 1998
Cash Flows from Operating Activities:
Net Income $ 4,632 $ 645
Reconciliation of Net Income to
Net Cash Provided by (Used in)
Operating Activities:
Minority Interest 1,268 (34)
Tax Benefit of Utilizing Prequasi-
reorganization Net Operating Losses 1,355 410
Changes in Assets and Liabilities:
Restricted Cash (11) (14)
Property Held for Development 6,451 (4,838)
Other Assets 35 (463)
Notes Receivable (968) -
Accrued Interest and Other
Liabilities, Net 735 405
Net Cash Provided by (Used in)
Operating Activities 13,497 (3,889)
Cash Flows from Financing Activities:
(Repayment of) Proceeds from
Notes Payable (8,930) 2,624
Re-issuance of Treasury Stock 327 326
Net Cash (Used in) Provided by
Financing Activities (8,603) 2,950
Net Increase (Decrease) in Cash
and Cash Equivalents 4,894 (939)
Cash and Cash Equivalents at
Beginning of Period 8,622 2,660
Cash and Cash Equivalents at
End of Period $13,516 $1,721
See accompanying Notes to Consolidated Financial Statements.
DOVER INVESTMENTS CORPORATION
Notes to Consolidated Financial Statements
September 30, 1999
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-QSB and
Article 10 of Regulation S-B. Accordingly, they do not include all of the
information and notes required by generally accepted accounting principles
for annual financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary
for a fair presentation have been included. Operating results for the three
and nine months ended September 30, 1999 are not necessarily indicative of
the results that may be expected for the year ending December 31, 1999. For
further information, refer to the consolidated financial statements and notes
thereto included in the Company's 1998 Annual Report to Shareholders.
2. NET INCOME PER SHARE
Basic income per share is computed, on a combined basis, for the two classes
of common stock, Class A and Class B. Computations are based upon the
weighted average number of common shares outstanding. The weighted average
number of Class A and Class B shares used to compute basic income per share
was 1,082,933 at September 30, 1999, and 1,042,697 at September 30, 1998.
Diluted income per share took into consideration the outstanding stock options.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1999, the Company's investment in property held for
development and homes held for sale decreased by $6,451,000 from its carrying
value at December 31, 1998. This decrease resulted primarily from the
sale of a higher number of homes in San Leandro, California (the "Marina Vista"
property), and the sale of homes and lots in Tracy, California (the "Glenbriar
Joint Venture"). For the quarter ended September 30, 1999, the Company closed
the sale of twelve homes at the Marina Vista and thirty six homes and thirty
six lots at the Glenbriar Estates projects, compared to fourteen home sales at
the Marina Vista and no lot sales at the Glenbriar Estates projects for the
same period in 1998.
REAL ESTATE DEVELOPMENT - MARINA VISTA.
At September 30, 1999, the Company is nearing completion of its Marina Vista
Development project in San Leandro, California and has the last eleven homes
under construction and they are sold. All other homes previously
constructed at Marina Vista, including the model homes, have been sold and
closed.
REAL ESTATE DEVELOPMENT - GLENBRIAR ESTATES.
The Company continues to develop the Glenbriar Estate Project in Tracy,
California, through four entities (the "Developers") that it has formed with
Westco Community Builders, Inc. [Glenbriar Joint Venture, a California
Partnership ("GJV"); Glenbriar Venture #2, LLC ("GV #2, LLC"); Tracy
Residential Venture Partners, LLC ("TRVP") and Meadowbrook Ventures, LLC
("MV, LLC")]. At September 30, 1999, the Developers have constructed major
infra structure improvements, sold one hundred and eighty unimproved lots to
a merchant builder, substantially completed lot improvements on approximately
three hundred and eighty two lots and a three acre park, constructed six model
homes in two model complexes, constructed and closed the sale on
approximately one hundred and fifty four homes, commenced construction on
approximately thirty four homes of which twenty nine are sold. The Developers
own or have under option, land for an additional two hundred and eighty two
lots, a twelve acre school site and an eight acre park. All of the land
owned or under contract to purchase by the Developers is covered by a vesting
tentative subdivision map. The market for homes built by the Developers has
been very strong during 1999, however, there are some signs that the market
in Tracy may be slowing or at least subject to greater competition from a
number of merchant builders for a finite number of home buyers. Future
development in Tracy is subject to the availability of Residential Growth
Allocations issued by the City of Tracy, which could be affected
by the passage of a citizens initiative during the year 2000, and the state
of the economy generally in the Bay Area.
REAL ESTATE DEVELOPMENT - HIGHER PRICED HOMES.
During 1997 and 1998, the Company entered into joint ventures to develop
three higher priced homes with Westco Community Builders, Inc. Prior to
September 30, 1999, two of the three homes had been built, sold and closed.
The remaining home was completed, sold and closed in October, 1999.
In September of 1999, the Company entered into joint ventures to develop a
fourth higher priced home with Westco Community Builders, Inc. The property
is located in Atherton, California, and is scheduled for completion in
approximately January of 2001.
During the nine months ended September 30, 1999, the Company used its
liquidity to fund expenditures in connection with the Marina Vista property,
the Tracy Joint Venture, and its general and administrative expenses.
The Company met its funding requirements primarily from cash reserves and
from revenues from home sales. The Company also obtained construction
financing from private sources secured by the homes under construction. The
Company's primary source of liquidity in the future will continue to be from
revenues generated from home sales, lot sales, and from construction financing
when deemed appropriate. The Company believes that it has sufficient
cash available to complete the development and construction of the Marina
Vista property, as well as pay off the debt discussed below when it becomes
due, and make its required contributions to the Glenbriar Joint Ventures.
At September 30, 1999, the Company borrowed a total of $3,720,000 to pay
for home construction costs. The loans are secured by lots and homes under
construction and will be paid from the proceeds of home and lot sales.
The loans bear interest at the rate of prime plus 1.25 percent per annum,
maturity dates through February 27, 2000. The Company has repaid the $802,000
loan secured by the four model homes, and the lender has released the
models from the lien of its Deed of Trust.
RESULTS OF OPERATIONS
For the quarter ended September 30, 1999, the Company had income of $1,683,000,
compared to $178,000 for the same period in 1998. For the nine months ended
September 30, 1999, net income was $4,632,000, compared to $645,000 for the
same period in 1998. Total sales for the nine months ended September 30, 1999,
were $57,366,000, resulting in a gross profit of $10,577,000, compared to
$12,333,000 in sales and a gross profit of $2,244,000 for the same period in
1998. The increase resulted primarily from the sale of a higher number of
homes at the Marina Vista property, and the sale of homes and lots at the
Glenbriar Estates projets.
Minority interest for the quarter ended September 30, 1999 increased to
$1,211,000, compared to $1,000 for the same period in 1998. The increase in
minority interest is attributable to the sale of homes and lots at the Glenbriar
Estates project and the sale of the higher priced homes.
The Company expects that the Marina Vista project and the Glenbriar Joint
Ventures will continue to provide a profit from the sale of homes and lots.
Factors such as interest rates and general economic conditions influence the
prices at which the Company is able to sell homes. In order to maintain its
market share of new home sales, the Company keeps home prices competitive
with other builders of a similar product in the vicinity of the property.
Interest income in the third quarter of 1999 increased to $198,000, compared
to $48,000 in 1998, due to higher cash balances from increased home sales and
notes receivable.
Selling expenses for the nine months ended September 30, 1999, increased by
$2,167,000 compared to the same period in 1998. Selling expenses increased
primarily due to increased sales and marketing, labor costs and related
commission expenses. For the nine months ended September 30, 1999, general
and administrative expenses increased by $163,000 compared to the same period
in 1998. This expense increase resulted from an increase in administrative
expenses associated with increased sales volume.
Year 2000 Disclosure. The Company replaced its accounting software
with Solomon IV which is year 2000 compliant. Personal Computers have been
replaced or upgraded and are also compliant. The expense, to become Year 2000
compliant had no material effect on the Company's financial position or
results of operations. The Company believes all joint venture entities and
major suppliers are year 2000 compliant. In the event that these
entities are not compliant, it would not impact the Company's operations.
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
The exhibits listed below are filed with this report.
Exhibit No. Description.
10.17 Partnership Agreement, Meadowbrook Ventures LLC,
dated July 1, 1999 between the Company and Westco
Community Builders, Inc.
27.1 Financial Data Schedule for the Quarter Ended
September 30, 1999.
(b) Reports on Form 8-K.
None.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
DOVER INVESTMENTS CORPORATION
Date: November 10, 1999 By: /s/Lawrence Weissberg
Lawrence Weissberg
Chairman of the Board, President
and Chief Executive Officer
EXHIBIT INDEX
Exhibit Number Description
10.17 Partnership Agreement, Meadowbrook Ventures LLC, dated
July 1, 1999 between the Company and Westco Community
Builders, Inc.
27.1 Financial Data Schedule for the Quarter Ended
September 30, 1999.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 13,921
<SECURITIES> 0
<RECEIVABLES> 2,646
<ALLOWANCES> 0
<INVENTORY> 18,987
<CURRENT-ASSETS> 35,554
<PP&E> 1,300
<DEPRECIATION> 0
<TOTAL-ASSETS> 36,854
<CURRENT-LIABILITIES> 4,023
<BONDS> 3,720
0
0
<COMMON> 11
<OTHER-SE> 29,100
<TOTAL-LIABILITY-AND-EQUITY> 36,854
<SALES> 10,577
<TOTAL-REVENUES> 57,961
<CGS> 49,757
<TOTAL-COSTS> 49,757
<OTHER-EXPENSES> 652
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 7,552
<INCOME-TAX> 2,920
<INCOME-CONTINUING> 4,632
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,632
<EPS-BASIC> 4.28
<EPS-DILUTED> 4.18
</TABLE>
OPERATING AGREEMENT OF
MEADOWBROOK VENTURES LLC
A CALIFORNIA LIMITED LIABILITY COMPANY
In accordance with the Beverly-Killea Limited Liability Company Act and
subject to the Articles of Organization, which were filed on May 18, 1999 with
the Secretary of State of California, the members of MEADOWBROOK VENTURES
LLC, listed on the signature page, make the following agreement on July 1, 1999
regarding the conduct of the business and affairs of MEADOWBROOK VENTURES
LLC, a California limited liability company ("Company"):
ARTICLE 1. DEFINITION OF TERMS
1.01 When used in this agreement, the following terms have the meanings
set forth here:
(a) "Act" means California's Beverly-Killea Limited Liability
Company Act, as set forth in Corporations Code Title 2.5.
(b) "Agreement" means this operating agreement, as originally
executed and as amended from time to time.
(c) "Articles" means the Articles of Organization for the Company
as originally filed with the Secretary of State and as amended from time to
time.
(d) "Available cash" of the Company means all cash funds of the
Company on hand from time to time (other than cash funds obtained as
contributions to the capital of the Company by the members and cash funds
obtained from loans to the Company), after (1) payment of all operating
expenses of the Company as of such time, (2) provision for payment of all
outstanding and unpaid current obligations of the Company as of such time,
and (3) provision for a working capital reserve, as defined below.
(e) "Bankruptcy" means, and a member is deemed a "Bankrupt
Member" on, (1) the entry of a decree or order for relief against the Member
by a court of competent jurisdiction in any involuntary case brought against
the Member under any bankruptcy, insolvency, or similar law ("Debtor Relief
Laws") that generally affect the rights of creditors and relief of debtors;
(2) the appointment of a receiver, liquidator, assignee, custodian,
conservator, trustee or similar agent under Debtor Relief Laws for the Member
or for any substantial portion of the Member's assets; (3) the issuance of an
order for the winding up and/or liquidation of the Member's affairs; (4) the
filing of a petition in any involuntary bankruptcy case that
remains undismissed or suspended under the federal bankruptcy laws; (5) the
commencement by a Member of voluntary case under any applicable Debtor Relief
Law; (6) the written admission of a Member that the Member is unable to pay the
Member's debts as they become due; (7) the consent by any Member to the entry of
an order for relief in any involuntary case, or to the appointment of (or the
taking of possession by) a receiver, liquidator, assignee, custodian,
conservator, trustee or similar agent under Debtor Relief Law for the Member
or for any substantial portion of the Member's assets; or (8) the making by
a Member of any general assignment for the benefit of creditors.
(f) "Capital Account" means the individual accounts established
and maintained pursuant to Paragraph 3.04.
(g) "Capital Contribution" means the total value of cash and
agreed fair market value of property and/or services contributed and/or agreed
to be contributed to the Company by each member, as shown in Exhibit A, as
the same may be amended from time to time.
(h) "Code" means the Internal Revenue Code of 1986, as
amended. All references in this Agreement to sections of the Code include any
corresponding provision or provisions of succeeding law.
(i) "Company" means MEADOWBROOK VENTURES, LLC,
a California limited liability company.
(j) "Entity" means any association, corporation, general
partnership, limited partnership, limited liability company, joint stock
association, joint venture, firm, trust, business trust, cooperative, and
foreign association of like structure.
(k) "Interest" in the Company means the entire ownership interest
of a member in the Company at any particular time, including the right of the
member to any and all benefits to which a Member may be entitled as provided in
this Agreement and under the Act, together with the obligations of the member to
comply with all of the terms and provisions of this Agreement.
(l) "Manager" means an individual appointed by consent of all
Members and having the authority as set forth in this Agreement.
(m) "Member" means each person who is an original signatory to
the Agreement and has been admitted to the Company as a Member, or who is an
assignee that has been admitted to the Company as a Member that has not
resigned, withdrawn, or been dissolved.
(n) "Percentage Interests" of a Member means the percentage of
the Member set forth opposite the name of the Member in Exhibit "A" attached
to this Agreement, as the percentage may be adjusted from time to time
pursuant to the terms of this Agreement.
(o) "Principal office" means the office of the agent of this
Company as shown in its Articles.
(p) "Pro Rata Part" means the proportion that a percentage interest
of a Member bears to the aggregate interest in the Company of all Members.
(q) "Share" refers to an interest in the Company representing a
contribution to capital. Whenever reference is made to "percentage interest,"
a share may be converted into the same by dividing a Member's number of shares
by the total of all shares outstanding.
(r) "Substitute Member" means any individual or entity that is
admitted into membership on the written consent of all Members in accordance
with Paragraph 3.11.
(s) "Tax Matters Member" means the Member chosen pursuant
to Internal Revenue Code Section 6231(a)(7) to deal with the Internal Revenue
Service on tax matters.
(t) "Project" means the purchase of the following lots and
dwellings of Glenbriar Estates situated in the City of Tracy, County of San
Joaquin, California, as shown in Exhibit "B" attached hereto: Tract No. 2889,
Unit 8; Tract No. 2923, Unit 10A; and Tract No. 2926, Unit 10B, the
construction of dwellings on each of the lots, and the subsequent sale of the
lots and dwellings situated thereon.
(u) "Construction Manager" means Westco Community Builders,
Inc., a California corporation. Construction Manager shall perform all
construction functions including supervision, coordination, budgeting, the
hiring of subcontractors and consultants and other related services to
achieve the construction of the Project.
(v) "Marketing Manager" means Westco Community Builders,
Inc., a California corporation. The Marketing Manager shall be responsible for
making all necessary arrangements for the marketing of the Project and its
completed dwellings including those arrangements necessary for the sale of
the dwellings.
(w) "Management Fee" means that fee of three percent (3%) of
gross income to be paid to Member Westco Community Builders, Inc. as a fee
for its performance of the services of Construction Manager and Marketing
Manager.
(x) "Financing" means all loans, if any, procured by the Company
for the purpose of completing the Project, including any construction loan.
(y) "Approved Costs" means all costs, including Financing and
the Management Fee, incurred in carrying out the Project. Approved Costs
include, but are not limited to: hard and soft costs, developments costs,
design and engineering costs, marketing costs, labor costs, supplier costs,
legal, administrative and accounting costs attributable to the Project,
salaries of the project foreman, permit costs, site trailer costs, materials
costs, and insurance costs.
(z) "Equity" shall mean the amount of capital, in the form of cash,
supplied to the Company by a Member.
(aa) "Preferred Return" shall mean that twelve percent (12%) per
annum return on the amount of Equity invested by a Member.
ARTICLE 2. ORGANIZATION OF COMPANY
2.01 Formation of Company. The Members have formed a limited liability
company under the Act by properly executing and filing the Articles and
executing this Agreement. The rights, duties, and liabilities of the Members
and the Managers are determined pursuant to the Act, the Articles, and this
Agreement.
2.02 Company Name. The name of the Company is MEADOWBROOK
VENTURES, LLC. The Company will transact business under that name. However,
the Managers may conduct business under another name if the Managers think it
advisable, provided that the Managers comply with the Act and any other
applicable laws, file fictitious name certificates and the like, and file any
necessary amendments.
2.03 Company Purpose. The purpose of the Company is to engage in any
business activity permitted by the Act.
2.04 Duration of Company and Agreement. The duration of the Company
and this Agreement is until December 31, 2049, as provided in the Articles,
unless the Company is dissolved earlier pursuant to Article 25.
ARTICLE 3. MEMBERS AND MEMBERSHIP INTERESTS
3.01 Names, Addresses, and Initial Capital Contributions of Members.
Members, their respective addresses, their initial Capital Contributions to the
Company, and their respective percentage interests in the Company are set
forth on Exhibit A, attached to this Agreement and made a part of it. Each
Member agrees to make the initial contribution set out in Exhibit A within
thirty (30) days of the execution of this Agreement.
(a) In accordance with the foregoing Section 3.01, and in order to
satisfy its required Capital Contribution, the Members, and each of them, hereby
consent and agree that Member Dover Investments Corp. shall satisfy its capital
contribution requirements by supplying the Equity for the purchase of lots, the
construction of dwellings thereon, and the subsequent sale thereof.
(b) In accordance with the foregoing Section 3.01, and in order to
fully satisfy its required Capital Contribution, the Members, and each of them,
hereby consent and agree that Member Westco Community Builders, Inc. shall
satisfy its capital contribution requirements by performing the duties of
Construction Manager and Marketing Manager for the Project.
3.02 Future Contributions. Other than those Capital Contributions
necessary to satisfy each Member's required capital contributions specified in
Section 3.01, no Member shall be required to make any additional contributions
to the to the capital of the Company. Additional contributions to the capital
of the Company shall be made only with the unanimous consent of the Members.
Except as provided in this Agreement, no Member may withdraw its Capital
Contributions.
3.03 Member Loans or Services. Loans or services by any Member to the
Company may not be considered to be contribution to the capital of the Company.
3.04 Capital and Capital Accounts.
(a) The initial Capital Contribution of each Member is as set forth
in Exhibit A. No interest may be paid on any other Capital Contribution.
(b) The Company will establish and maintain individual Capital
Accounts on behalf of each Member, including any additional or Substituted
Member who shall subsequently receive any interest in the Company. The
Capital Account of each Member consists of (1) the amount of cash the Member
has contributed to the Company, (2) less any liabilities assumed by the
Company or to which the property is subject, plus (3) the amount of profits
or income (including tax-exempt income) allocated to the Member, less (4) the
amount of losses and deductions allocated to the Member, less (5) the amount
of all cash distributed to the Member, less (6) the fair market value of any
property distributed to the Member, net of any liability assumed by the
Member or to which the property is subject, less (7) the Member's share of
any other expenditures that are not deductible by the Company for
federal income tax purposes or that are not allowable as additions to the
basis of Company property, and (8) subject to any other adjustments that may
be required under the Code. The Capital Account of a Member is not affected
by any adjustments to basis made pursuant to Section 743 of the Internal
Revenue Code, but must be adjusted with respect to adjustments to basis made
pursuant to Section 734 of the Internal Revenue Code.
(c) No Member has the right to withdraw his or her Capital
Contribution or to demand and receive property of the Company or any
distribution in return for his or her Capital Contribution, except as may be
specifically provided in this Agreement or required by law. No Member may
receive out of Company property any part of his, her, or its Capital
Contribution until (1) all liabilities of the Company, except liabilities to
the Members on account of their loans, have been paid or sufficient Company
property remains to pay them, and (2) all Members consent, unless the return
of the contributions to capital is rightfully demanded as provided
in the Act.
(d) Subject to the provisions of subparagraph (c) of this paragraph,
a Member may rightfully demand the return of his or her or its Capital
Contribution (1) on the dissolution of the Company, or (2) as may otherwise
be provided in the Act. A Member may demand and receive only cash in return
for the Member's Capital Contribution.
3.05 Admission of Additional Capital. Additional capital may be
contributed to the Company, but only on the written consent of all Members.
3.06 Admission of Additional Members. The Members may admit to the
Company additional members to participate in the profits, losses, available
cash flow, and ownership of the assets of the Company on such terms as are
determined by all of the Members. Admission of any additional Member
requires the written consent of all Members then having any interest in the
Company. Any additional Members are allocated gain, loss, income, or expense
by the method provided in this Agreement.
3.07 Limitation on Liability. No Member is liable under a judgment,
decree, or order of the court, or in any other manner, for a debt, obligation,
or liability of the Company, except as provided by law. No Member is required
to loan any funds to the Company.
3.08 No Individual Authority. Unless expressly provided in this
Agreement, no Member, acting alone, has any authority to act for, or to
undertake or assume, any obligation, debt, or responsibility on behalf of,
any other Member of the Company.
3.09 No Member Responsible for Other Member's Commitment. In the
event that a Member (or a Member's shareholders, partners, members, owners, or
affiliates) has incurred any indebtedness or obligation before the date of this
Agreement that relates to or otherwise affects the Company, neither the
Company nor any other Member has any liability or responsibility with respect
to the indebtedness or obligation unless the indebtedness or obligation is
assumed by the Company pursuant to a written instrument signed by all Members.
Furthermore, neither the Company nor any Member is responsible or liable for
any indebtedness or obligation that is subsequently incurred by any other
Member (or a Member's shareholder, partners, members, owners, or affiliates).
In the event that a Member (or a Member's shareholders, partners, members,
owners, or affiliates; collectively called the "liable Member"), whether
before or after the date of this Agreement, incurs (or has incurred) any debt
or obligation that neither the Company nor any of the other
Members is to have any responsibility or liability for, the liable Member must
indemnify and hold harmless the Company and the other Members from any liability
or obligation they may incur in respect of the debt or obligation.
3.10 Transfer and Assignment of Membership Interests. No Member may
assign, convey, sell, encumber, or in any way alienate all or any part of his
or her interest in the Company as a Member without prior written consent of all
other Members, which consent may be given or withheld, conditioned or delayed
(as allowed by this Agreement or the Act), as the remaining Members may
determine in their sole discretion. Transfers in violation of this section
are effective only to the extent set forth in Subparagraph 3.13(b), below.
3.11 Further Restrictions on Membership Transfers. No Member may
assign, convey, sell, encumber, or in any way alienate all or any part of his,
her or its interest in the Company (1) without registration under applicable
federal and state securities laws, or unless he, she or it delivers an
opinion of counsel satisfactory to the Company that registration under those
laws is not required; or (2) if the interest to be sold or exchanged, when
added to the total of all other sold or exchanged in the preceding twelve
(12) consecutive months prior to that time, would result in the
termination of the Company under Section 708 of the Internal Revenue Code.
3.12 Substitute Members. A transferee may become a Substitute Member
if (1) the requirements of Subsections 3.10 and 3.11, above, are met; (2) the
person executes an instrument satisfactory to the remaining Members accepting
and adopting the terms and provisions of this Agreement; and (3) the person
pays all reasonable expenses in connection with his, her or its admission as
a remaining Member.
3.13 Effect of Transfer.
(a) Any permitted transfer of all or any portion of a Member's
interest in the Company takes effect on the first day of the month following
receipt by the Members of written notice of transfer. Any transferee of an
interest in the company takes subject to the restrictions on transfer imposed
by this Agreement.
(b) On a transfer of a Member's interest in the Company in
violation of this Agreement, the transferee has no right to participate in the
management of the business and affairs of the Company or to become a Member, but
the transferee is entitled only to receive the share of profits or other
compensation by way of income and the return of contributions to which the
transferor of the interest in the Company would otherwise be entitled.
3.14 Right of First Negotiation. If any Member desires to transfer all
or any part of his, her or its Membership Interest, such Member shall notify
the Company and the other Members in writing of such desire and, for a period
of thirty (30) days thereafter, the Members and the Company shall negotiate
with respect to the purchase of such Member's Membership Interest. During
such period, the Member desiring to transfer such Membership Interest may not
solicit a transferee for such Membership Interest.
3.15 Right of First Refusal. If the period described in Section 3.14
expires without an agreement being reached as to the purchase of the
Membership interest referred to therein, the Member desiring to transfer his,
her or its Membership Interest may solicit transferees. In such event, each
time a Member proposed to transfer all or any part of his, her or its
Membership interest, such Member shall first offer such Membership Interest
to the Company and the non-transferring Members
in accordance with the following provisions:
(a) Such Member shall deliver a written notice ("Option Notice")
to the Company and the other Members stating (i) such Member's bona fide
intention to transfer such Membership Interest, (ii) the Membership Interest
to be transferred, (iii) the purchase price and terms of payment for which
the Member proposes to transfer such Membership Interest and (iv) the name
and address of the proposed transferee.
(b) Within thirty (30) days after receipt of the Option Notice, the
Company shall have the right, but not the obligation, to elect to purchase
all or any part of the Membership Interest upon the price and terms of
payment designated in the Option Notice. If the Option Notice provides for
the payment of non-cash consideration, the Company may elect to pay the
consideration in cash equal to the good faith estimate of the present fair
market value of the non-cash consideration offered as determined by the
Managers. If the Company exercises such right within such thirty (30) day
period, the Managers shall give written notice of that fact to the
transferring and non-transferring Members.
(c) If the Company fails to elect to purchase the entire
Membership Interest proposed to be transferred within the thirty (30) day period
described in Paragraph 3.14(b), the non-transferring Members shall have the
right, but not the obligation, to elect to purchase any remaining share of
such Membership Interest upon the price and terms of payment designated in
the Option Notice. If the Option Notice provides for the payment of non-cash
consideration, such purchasing Members each may elect to pay the consideration
in cash equal to the good faith estimate of the present fair market value of
the non-cash consideration offered as determined by the Managers. Within
sixty (60) days after receipt of the Option Notice, each non-transferring
Member shall notify the Managers in writing of his, her
or its desire to purchase a portion of the Membership Interest proposed to be
so transferred. The failure of any Member to submit a notice within the
applicable period shall constitute an election on the part of that Member not
to purchase any of the Membership Interest which may be so transferred.
Each Member so electing to purchase shall be entitled to purchase a portion
of such Membership Interest in the same proportion that the Percentage
Interest of such Member bears to the aggregate of the Percentage Interests of
all of the Members electing to so purchase the Membership Interest being
transferred. In the event any Member elects to purchase none or less than
all of his, her or its pro rata share of such Membership Interest, then
the other Members can elect to purchase more than their pro rata share.
(d) If the Company and the other Members elect to purchase or
obtain any or all of the Membership Interest designated in the Option Notice,
then the closing of such purchase shall occur within the ninety (90) days
after receipt of such notice and the transferring Member, the Company and/or
the other Members shall execute such documents and instruments and make such
deliveries as may be reasonably required to consummate such purchase.
(e) If the Company and the other Members elect not to purchase
or obtain, or default in their obligation to purchase or obtain, all of the
Membership Interest designated in the Option Notice, then the transferring
Member may transfer the portion of the Membership Interest described in the
Option Notice not so purchased, to the proposed transferee, providing such
transfer (i) is completed within thirty (30) days after the expiration of the
Company's and the other Members' right to purchase such Membership Interest,
(ii) complies with Paragraphs 3.10, 3.11, 3.12 and 3.13 relating to unanimous
consent of Managers who are Members, securities and tax requirements.
ARTICLE 4. POWER TO AMEND AGREEMENT
4.01 The Power to adopt, alter, amend, or repeal this Agreement is vested
entirely in the Members of the Company.
ARTICLE 5. MANAGEMENT RIGHTS IN MANAGERS
5.01 The right to exercise the powers of the Company and to manage the
business and affairs of the Company is vested entirely in the Managers.
ARTICLE 6. ELECTION OF MANAGERS
6.01 (a) The initial Managers specified in the Articles of Organization
and/or Exhibit "A" attached hereto will serve as Managers for the period
specified in the Articles of Organization or until resignation or removal.
(b) Managers may be elected at a special meeting called for the
purpose of electing Managers. Managers may also be designated by the unanimous
written consent of the Members.
(c) The term of service for the Managers is perpetual unless
removed by the affirmative vote of a majority of the Members.
ARTICLE 7. REMOVAL OF MANAGERS
7.01 (a) The Members may remove a Manager before the expiration
of the Manager's term specified in this Agreement by the affirmative vote of a
majority of all of the Members.
(b) At any meeting of Members called expressly for the purpose,
a Manager may be removed for any reason, with or without cause, on a resolution
adopted by the Members.
ARTICLE 8. QUORUM OF MANAGERS
8.01 At all meetings of the Managers, two (2) of the Managers must be
present to constitute a quorum for the transaction of business.
ARTICLE 9. ACTION BY MANAGERS
9.01 Authority. The Managers have full authority to act on behalf of the
Company and its Members in its best interest. An act of the Managers is
effective if more than a Majority in Interest of the Managers, representing
their Membership Interests, vote approval of the act at a meeting at which a
quorum of Managers is present.
9.02 Appointment of Officers. The Managers may appoint officers at any
time. The officers of the Company, if deemed necessary by the Managers, may
include a chairperson, president, vice president, secretary, and chief
financial officer. The officers shall serve at the pleasure of the Managers,
subject to all rights, if any, of an officer under any contract of employment.
Any individual may hold any number of offices. No officer need be a resident
of the State of California or citizen of the United States. If a Manager is
not an individual, such Manager's officers may serve as officers of the
Company if elected by the Managers. The officers shall exercise such powers
and perform such duties as specified in this Agreement and as
shall be determined from time to time by the Managers. Any such officers duly
appointed by the Managers shall have the duties, power and authority assigned
to them by the Managers.
ARTICLE 10. REGULAR MEETINGS OF MANAGERS
10.01 Regular meetings of the Managers are held at 15225 Wicks
Boulevard, San Leandro, California, the principal office of the Company. The
Managers are authorized to designate, from time to time, a place or places
other than that specified above as the place for regular meetings of the
Managers.
ARTICLE 11. SPECIAL MEETINGS OF MANAGERS
11.01 Special meetings called by action of the Managers are held at
15225 Wicks Boulevard, San Leandro, California, the principal office of the
Company or a place designated by the Managers. Written notice of the time
and place of special meetings must be delivered personally to the Managers or
sent to each Manager by United States mail or facsimile machine at the
Manager's address as shown on the records of the Company.
ARTICLE 12. NOTICE OF PURPOSE OF MANAGER MEETINGS
12.01 Notice of special meetings of the Managers must specify the
purpose of the meeting or the business to be transacted at the meeting, in
addition to the date, time and place of the meeting.
ARTICLE 13. COMPENSATION OF MANAGERS
13.01 Members have authority to establish reasonable compensation of
all Managers for services to the Company. The compensation may include
pensions, disability benefits, and death benefits.
ARTICLE 14. EXECUTION OF DOCUMENTS
14.01 The Managers and Members have the authority to execute documents
and instruments for the acquisition, mortgage, or disposal of property on
behalf of the Company, to open accounts, disburse funds and otherwise bind
the Company contractually. The countersignatures of two or more Managers
will be required to authorize disbursements on behalf of the Company or bind
the Company contractually.
(a) Notwithstanding the foregoing, Member Westco Community
Builders, Inc. shall have the authority acting alone to enter into contracts
and authorize disbursements necessary to carry out its duties as Construction
Manager and Marketing Manager for the Project; provided, however, that such
authority shall not include the power to convey title to the Project or any
homes situated thereon.
ARTICLE 15. MEETINGS OF MEMBERS
15.01 All meetings of Members must take place at 15225 Wicks Boulevard,
San Leandro, California. The Members are authorized to designate, from time to
time, a place or places other than that specified above as the place for
meetings of the Members. Any Member may call a special meeting by giving at
least ten (10) days' written notice to all other Members. The notice must
specify the date, time, and place of the special meeting and the purpose for
calling the meeting. Notice of the meeting must be delivered personally to
the Members or sent to each Member by United States mail or facsimile machine
at the Member's address as shown on the records of the Company. For mailed
notice, the notice must be deposited in the United States mail at least
twelve (12) days before the time the meeting is held.
ARTICLE 16. QUORUM
16.01 At all meetings of the Members, two (2) Members must be present
to constitute a quorum for transaction of business.
ARTICLE 17. ACTIONS BY MEMBERS AND VOTING RIGHTS
17.01 Votes Required to Act. An act of the Members of record is
effective if the Majority in Interest of Members' votes adopt the act at a
meeting at which a quorum of Members is present. The voting rights of the
Members are to be distributed in proportion to each Member's Percentage
Interest as set forth in Exhibit "A" hereto.
17.02 Actions of Tax Matters Member. The Tax Matters Member of the
Company, chosen pursuant to Internal Revenue Code Section 6231(a)(7), is Westco
Community Builders, Inc. who has the same authority as granted by the Internal
Revenue Code to a tax matters partner.
ARTICLE 18. ACTION BY CONSENT WITHOUT MEETING.
18.01 Any action permitted to be taken by the Members may be taken
without a meeting if all Members individually or collectively consent by
signing a written approval of the action. Any action by written consent
shall have the same force and effect as a unanimous vote of the Members.
ARTICLE 19. RECORD DATE
19.01. Only persons whose names are listed as Members in the official
records of the Company fifteen (15) days before any meeting of the Members are
entitled to notice of or to vote at that meeting.
ARTICLE 20. VOTE BY PROXY
20.01 Members may vote either in person or by proxy. Proxies must be
executed in writing by the Members. A telegram, cablegram, or similar
transmission by the Member or a photographic, photostatic, facsimile, or
similar reproduction of a writing executed by a Member is deemed an execution
in writing for purposes of this Agreement.
ARTICLE 21. ALLOCATIONS: DISTRIBUTIONS AND INTERESTS
21.01 Allocation of Net Income, Net Loss, or Capital Gains. Except
as may be expressly provided otherwise in this Article 21, and subject to the
provisions of Section 704(c) of the Internal Revenue Code, the net income,
net loss, or capital gains of the Company for each fiscal year of the Company
is allocated to the Members as follows:
(a) Net Profits. Net profits shall be allocated among the Members
as follows:
(i) First to each of the Members until the cumulative net
profits allocated pursuant to this section is equal to cumulative net loss
allocated to the Member pursuant to Section 21.01(b) for any period;
(ii) Next, pari passu to the Members in the amount of any
accrued but preferred return allocable to their Capital Contributions;
(iii) Thereafter to each of the Members pro rata in
accordance with their percentage interest.
(b) Net Loss. Net losses shall be allocated among the Members
as follows:
(i) First to the extend any net profits have been allocated
pursuant to Section 21.01(a) hereof in the following order: first to offset
any net profits allocated pursuant to Section 21.01(a)(iii) hereof; then to
offset any net profits allocated pursuant to Section 21.01(a)(ii); and then
to offset any net profits allocated pursuant to Section 21.01(a)(i) (in each
case pro rata in proportion to the shares of net profits being offset);
(ii) Second, in proportion to the positive balances, if any,
in the Members' respective Capital Accounts, until such balances are reduced
to zero; and
(iii) Third; to the Members, pro rata, in accordance with
their Percentage Interests.
(c) Residual Allocations. Except as otherwise provided in this
Agreement, all items of Company income, gain, loss, deduction, and any other
allocations not specifically provided for herein shall be allocated to the
Members, pro rata in accordance with their Percentage Interest.
21.02 Distributions. Periodically, but not less frequently than at
the end of each calendar quarter, and after the payment from gross income of
all Approved Costs, the net income from net sales proceeds shall be
distributed to the Members and will be allocated as follows:
(a) First, to Dover Investments Corp. and Westco Community
Builders, Inc., pari passu, an amount equal to their respective return of
capital contributed.
(b) Second, to Dover Investments Corp. its Preferred Return.
(c) Third, to Dover Investments, Corp. 50% of the remaining
funds available and to Westco Community Builders, Inc. 50% of the remaining
funds available.
It is anticipated that the net income and all proceeds will be distributed in
accordance with the above no less frequently than quarterly. However, the
Members agree that should either Member have tax liability or tax liabilities
requiring funds, then the Members shall authorize distributions, including
any necessary advance distributions, to that Member. Any distributions to a
Member receiving advance distributions shall be first utilized to satisfy such
advance distributions.
21.03 Allocation of Income and Loss and Distributions in Respect of
Interests Transferred.
(a) If any interest in the company is transferred, or is increased or
decreased by reason of the admission of a new Member or otherwise, during any
fiscal year of the Company, each item of income, gain, loss, deduction, or
credit of the Company for the fiscal year must be assigned pro rata to each
day in the particular period of the fiscal year to which the item is
attributable (that is, the day on or during which it is accrued or otherwise
incurred) and the amount of each item so assigned to any day shall be
allocated to the Member based on his, her or its respective interest in the
Company at the close of the day. For the purpose of accounting convenience
and simplicity, the Company may treat a transfer of, or an increase or
decrease in, an interest in the Company that occurs at any time during a
semimonthly period (commencing with the semimonthly period including the date
of this Agreement) as having been consummated on the first day of the
semimonthly period, regardless of when during the semimonthly period the
transfer, increase, or decrease actually occurs (that is, sales and
dispositions made during the first fifteen (15) days of any month are
deemed to have been made on the 16th day of the month).
(b) Distributions of the Company assets in respect of any interest
in the Company shall be made only to the Members who, according to the books
and records of the Company, are holders of record of the interests in respect
of which the distributions are made on the actual date of distribution.
Neither the Company nor any Member incurs any liability for making
distributions in accordance with the provisions of the preceding sentence,
whether or not the Company or Member has knowledge or notice of any transfer
or purported transfer of ownership of interest the Company that has not been
approved by unanimous vote of the Members. Notwithstanding any provision
above to the contrary, gain or loss of the Company realized in connection
with a sale or other disposition of any of the assets of the company must
be allocated solely to the parties owning interests in the Company as
of the date the sale or other disposition occurs.
ARTICLE 22. REPRESENTATIONS
Each Member hereby represents and warrants to, and agrees with, the
Members and Company as follows:
22.01. He, she or it has a preexisting personal or business
relationship with the Company or one or more of its officers or controlling
persons, or by reason of his, her or its business or financial experience, or
by reason of the business or financial experience of his, her or its
financial advisor who is unaffiliated with and who is not compensated,
directly or indirectly, by the Company or any affiliate or selling agent
of the Company; he, she or it is capable of evaluating the risks and merits
of an investment in the Company and of protecting his, her or its own
interests in connection with this investment.
22.02. He, she or it has not seen, received, been presented with,
or been solicited by any leaflet, public promotional meeting, article or any
other form of advertising or general solicitation with respect to the sale of
the Membership Interest.
22.03. He, she or it is acquiring the Membership Interest for
investment purposes for its own account and not with a view to or for sale in
connection with any distribution of all or any part of the Membership
Interest. No other person will have any direct or indirect beneficial
interest in or right to the Membership Interest.
22.04. He, she or it is financially able to bear the economic risk of
an investment in the Membership, including the total loss thereof.
22.05. He, she or it acknowledges that the Membership Interest has
not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), or qualified under any blue sky laws in reliance, in
part, on his, her or its representations, warranties and agreements herein.
22.06. He, she or it represents, warrants and agrees that the Company
is under no obligations to register or qualify the Membership Interest under
the Securities Act or under any state securities law, or to assist it in
complying with any exemption from registration and qualification.
22.07. Without limiting the representations set forth above, he, she
or it will not make any disposition of all or any part of the Membership
Interest which will result in the violation by it or by the Company of the
Securities Act or any other applicable securities laws.
22.08. He, she or it understands that the certificates (if any)
evidencing the Membership Interest may bear any legend required by applicable
securities laws.
22.09. He, she or it acknowledges that the Membership Interest is a
speculative investment which involves a substantial degree of risk of loss by
it of his, her or its entire investment in the Company, that he, she or it
understands and takes full cognizance of the risk factors related to the
purchase of the Membership Interest, and that the Company is newly organized
and has no financial or operating history.
22.10. He, she or it acknowledges that there are substantial
restrictions on the transferability of the Membership Interest pursuant to
this Agreement, that there is no public market for the Membership Interest
and none is expected to develop, and that, accordingly, it may not be
possible for it to liquidate his, her or its investment in the Company.
22.11. Neither the Members, any agent or employee of the Company or
of the Members, nor any other person has at any time guaranteed or warranted
to him, her or it that he, she or it may freely transfer the Membership
Interest, that a percentage of profit and/or amount or type of consideration
will be realized as a result of an investment in the Membership Interest,
that past performance or experience on the part of any Member or any other
person in any way indicates the predictable results of the ownership of the
Membership Interest or of the overall Company business, that any cash
distributions from Company operations or otherwise will be made to the
Members by any specific date or will be made at all or that any specific
tax benefits will accrue as a result of an investment in the Company.
22.12. He, she or it acknowledges that the tax consequences to him,
her or it of investing in the Company will depend on his, her or its
particular circumstances, and neither the Company, the Members, nor any other
person will be responsible or liable for the tax consequences to him, her or
it of an investment in the Company. He, she or it will look solely to, and
rely upon, his, her or its own advisers with respect to the tax consequences
of this investment.
ARTICLE 23. INDEMNIFICATION OF MEMBERS
AND MEMBERS' FIDUCIARY DUTIES
23.01 The Company will indemnify Members for any act taken in the
capacity of a Member, other than acts that involve a breach of fiduciary duty.
The standard of the fiduciary duty a Member owes to the Company and to its
Members are those of a partner to a partnership and to the partners of the
partnership. A Member's standard of conduct owed to the Company and other
Members is to act in the highest good faith to the Members, and a Member may
not seek to obtain an advantage in the Company affairs by the slightest
misconduct, misrepresentation, concealment, threat, or adverse pressure of
any kind.
ARTICLE 24. INDEMNIFICATION OF MANAGERS
AND MANAGERS' FIDUCIARY DUTIES
24.01. The Company shall indemnify Managers for any act taken in the
capacity of a Manager, other than acts that involve a breach of fiduciary
duty. The standard of the fiduciary duties a Manager owes to the Company and
to its Members are those of a partner to a partnership and to the partners of
the partnership. A Manager's standard of conduct owed to the Company and
other Members is to act in the highest good faith to the Members, and a
Manager may not seek to obtain an advantage in the Company affairs by the
slightest misconduct, misrepresentation, concealment, threat, or adverse
pressure of any kind.
ARTICLE 25. COMPANY RECORDS AND REPORTS
25.01. Records and Accounting; Fiscal Year. The books and records of
the Company must be kept, and the financial position and the results of its
operations recorded, in accordance with the accounting methods elected to be
followed by the company for federal and state income tax purposes. The books
and records of the Company must reflect all Company transactions and must be
appropriate and adequate for the Company's business. The fiscal year of the
Company for financial reporting and for federal income tax purposes is the
calendar year.
25.02. Access to Accounting Records. All books and records of the
Company must be maintained at any office of the Company or at the Company's
principal place of business, and each Member, and his, her or its duly
authorized representative, must have access to them at the office of the
Company and the right to inspect and copy them at reasonable times.
25.03. Annual and Tax Information. The Members must use their best
efforts to cause the Company to deliver to each Member, within sixty (60) days
after the end of each fiscal year, all information necessary for the
preparation of each Member's federal income tax return. The Members must
also use their best efforts to cause the Company to prepare, within sixty (60)
days after the end of each fiscal year, a financial report of the Company for
the fiscal year, which must contain a balance sheet as of the last day of the
year then ended, an income statement for the year then ended, a statement of
sources and applications of funds, and a statement of reconciliation of the
capital accounts of the Members.
ARTICLE 26. DISSOLUTION OF COMPANY
26.01. The Company shall be dissolved, its assets shall be disposed
of, and its affairs shall be wound up on the first to occur of the following
events:
(a) A determination by more than 50% of the Members that the Company
should be dissolved.
(b) The expiration of the Company term as stated in the Articles.
(c) On the death, insanity, bankruptcy, retirement, resignation, or
expulsion of any Member unless at least fifty percent (50%) of the remaining
Members consent to continue the Company within ninety (90) days of the
dissolution event.
(d) At any earlier time as may be provided by applicable law.
ARTICLE 27. CONSEQUENCES OF DISSOLUTION EVENTS ON TERMINATION
OF MEMBERS' INTEREST
27.01 Dissolution Event. Upon the occurrence of the events specified
in Paragraph 25.01(c) and the remaining Members' consent to continue the
Company as specified, the Company and/or remaining Members ("Remaining
Members") shall have the right to purchase, and if such right is exercised,
the Member whose actions or conduct resulted in the dissolution event
("Former Member") shall sell, the Former Member's Membership Interest
("Former Member's Interest") as provided in this Article 26.
27.02 Withdrawal. Upon the withdrawal by a Member in the absence of
the consent of all Remaining Members, such Member shall be treated as a Former
Member, and, unless the Company dissolves as a result of such withdrawal, the
Company and/or the Remaining Members shall have the right to purchase, and if
such right is exercised, the Former Member shall sell, the Former Member's
Interest as provided in this Article 26.
27.03 Purchase Price. The purchase price for the Former Member's
Interest shall be the fair market value of the Former Member's Interest as
determined by an independent appraiser jointly selected by the Former Member
and by the Remaining Members holding a majority of the remaining Membership
Interests. The Company and the Former Member shall each pay one-half of the
cost of the appraisal. Notwithstanding the foregoing, if the Dissolution
Event results from a breach of this Agreement by the Former Member, the
purchase price shall be reduced by an amount equal to the damages suffered
by the Company or the Remaining Members as a result of such breach.
27.04 Notice of Intent to Purchase. Within thirty (30) days after
the fair market value of the Former Member's Interest has been determined in
accordance with Section 26.03, each Remaining Member shall notify the Members
in writing of his, her or its desire to purchase a portion of the Former
Member's Interest. The failure of any Remaining Member to submit a notice
within the applicable period shall constitute an election on the part of the
Member not to purchase any of the Former Member's Interest. Each Remaining
Member so electing to purchase shall be entitled to purchase a portion of the
Former Member's Interest in the same proportion that the Membership Interest
of the Remaining Members bears to the aggregate of the Membership Interests
of all of the Remaining Members electing to purchase the Former Member's
Interest.
27.05 Election to Purchase Less Than All of the Former Member's
Interest. If any Remaining Member elects to purchase none or less than all
or his, her or its pro rata share of the Former Member's Interest, then the
Remaining Members can elect to purchase more than their pro rata share.
If the Remaining Members fail to purchase the entire interest of the Former
Member, the Company may purchase any remaining share of the Former Member's
Interest.
27.06 Payment of Purchase Price. The Company or the Remaining
Members, as the case may be, shall pay at the closing one-fifth (1/5) of the
purchase price and the balance of the purchase price shall be paid in four
equal annual principal installments, plus accrued interest, and be payable
each year on the anniversary date of the closing. The unpaid principal
balance shall accrue interest at the current applicable federal rate as
provided in the Code for the month in which the initial payment is made,
but the Company and the Remaining Members shall have the right to prepay in
full or in part at any time without penalty. The obligation of each
purchasing Remaining Member or the Company, as applicable, to pay its
portion of the balance due shall be evidenced by a separate promissory note
executed by the respective purchasing Remaining Member or the Company, as
applicable. Each such promissory note shall be in an original principal
amount equal to the portion owed by the respective purchasing Remaining
Member or the Company, as applicable. The promissory note executed by each
purchasing Remaining Member shall be secured by a pledge of that portion of
the Former Member's Interest purchased by such Remaining Member.
27.07 Closing of Former Member's Interest. The closing for the sale
of a Former Member's Interest pursuant to this Article 26 shall be held at
10:00 a.m. at the principal office of Company no later than sixty (60) days
after the determination of the purchase price, except that if the closing
date falls on a Saturday, Sunday or California legal holiday, then the
closing shall be held on the next succeeding business day. At the closing,
the Former Member shall deliver to the Company or the Remaining Members an
instrument of transfer (containing warranties of title and no encumbrances)
conveying the Former Member's Interest. The Former Member, the Company and
the Remaining Members shall do all things and execute and deliver
all papers as may be reasonably necessary fully to consummate such sale and
purchase in accordance with the terms and provisions of this Agreement.
ARTICLE 28. MISCELLANEOUS PROVISIONS
28.01. Complete Agreement. This Agreement and the Articles of this
Company constitute the complete and exclusive statement of agreement among the
Members with respect to the subject matter described. This Agreement and the
Articles replace and supersede all prior agreements by and among any of the
Members. This Agreement and the Articles supersede all prior written and oral
statements; no representation, statement, or condition or warranty not
contained in this Agreement or the Articles is binding on the Members or
has any force or effect.
28.02. Governing Law. This Agreement and the rights of the parties
under this Agreement will be governed by, interpreted, and enforced in
accordance with the laws of the State of California.
28.03. Binding Effect. Subject to the provisions of this Agreement
relating to transferability, this Agreement is binding on and inures to the
benefit of the Members, and their respective distributees, successors,
and assigns.
28.04. Severability. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under the present or future laws
effective during the term of this Agreement, the provision is fully severable;
this Agreement is construed and enforced as if the illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid, or unenforceable provision;
and there will be added automatically as a part of this Agreement a provision
as similar in terms to the illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
28.05. Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which is deemed an original but all of which constitute
one and the same instrument. However, in making proof only one copy signed
by the party to be charged is required.
28.06. Additional Documents and Acts. Each Member agrees to execute
and deliver additional documents and instruments and to perform all additional
acts necessary or appropriate to effectuate, carry out, and perform all of
the terms, provisions, and conditions of this Agreement and the transactions
contemplated by it.
28.07. No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties to it, and their
respective successors and assigns, subject to the express provisions of the
Agreement relating to successors and assigns, and no other person has or
will have any rights, interest, or claims under this Agreement as a
third-party beneficiary or otherwise.
28.08. Tax Consequences. Members acknowledge that the tax consequence
of each Member's investment in the Company is dependent on each Member's
particular financial circumstances. Each Member will rely solely on the
Member's financial advisors and not the Company. The Company makes no
warranties as to the tax benefits that the Members receive or will receive
as a result of the Member's investment in the Company.
28.09. Notices. Any notice to be given or to be served on the
Company or any party to this Agreement in connection with this Agreement must
be in writing and is deemed to have been given and received when delivered to
the address specified by the party to receive the notice. Notices must be
given to each Member at the address specified in Exhibit A. Any Member or
the Company may, at any time, designate any other address in substitution of
the foregoing address to which notice will be given by giving written notice
to the other Members and the Company thirty (30) days before the date of
delivery of the notice.
28.10. Amendments. All Amendments to this Agreement must be in writing
and signed by all of the Members.
28.11. Title to Company Property. Legal title to all property of the
Company must be held and conveyed in the name of the Company.
28.12. Reliance on Authority of Person Signing Agreement. In the
event that a Member is not a natural person, neither the Company nor any
Member will (1) be required to determine the authority of the individual
signing this Agreement to make any commitment or undertaking on behalf of
the entity or to determine any fact or circumstance bearing on the existence
of the authority of the individual, or (2) be required to see to the
application or distribution of proceeds paid or credited to individuals
signing this Agreement on behalf of the entity.
28.13 Banking. All funds of the Company shall be deposited in one
or more accounts with one or more recognized financial institutions in the
name of the Company, at such locations as shall be determined by the Managers.
The Managers shall determine, by unanimous resolution, those persons
authorized to withdraw funds from such accounts and the amount such persons
are authorized to withdraw.
IN WITNESS THEREOF, the undersigned have executed this Agreement,
to be effective as of the date that the Articles of Organization of the
Company are accepted for filing by the Secretary of State.
MEMBERS:
WESTCO COMMUNITY BUILDERS, INC.
By: /s/ Britt Evans
Name: Britt Evans
Its: President
DOVER INVESTMENTS CORPORATION
a Delaware corporation
By: /s/ Lawrence Weissberg
Name: Lawrence Weissberg
Its: CEO
EXHIBIT A
CAPITAL CONTRIBUTION OF MEMBERS AND ADDRESSES OF
MEMBERS
AND MANAGER AS OF
MEADOWBROOK VENTURES, LLC
Member's Name: Westco Community Builders, Inc.,
a California corporation
Member's Address: 15225 Wicks Boulevard, San Leandro, CA 94579
Member's Capital
Contribution: $10.00 (See Section 3.01(b) of the Operating
Agreement)
Member's Percentage
Interest: 50%
Member's Name: Dover Investments Corp.,
a Delaware corporation
Member's Address: 100 Spear Street, Suite 520,
San Francisco, CA 94105
Member's Capital
Contribution: $500,000.00 (See Section 3.01(a) of the
Operating Agreement)
Member's Percentage
Interest: 50%
TOTAL See above 100%
Manager's Name: Westco Community Builders, Inc.
Manager's Address: 15225 Wicks Boulevard, San Leandro, CA 94579
Manager's Name: Dover Investments Corp., a Delaware corporation
Manager's Address: 100 Spear Street, Suite 520, San Francisco, CA 94105
