EXHIBIT 10.33
OPERATING AGREEMENT
OF
NEG OPERATING LLC
*****
This Operating Agreement is made as of May 1, 2001 by the undersigned
member pursuant to and in accordance with the Delaware Limited Liability Company
Act (the "Act").
1. Formation: Name. The limited liability company (the "Company") was
formed on August 25, 2000 upon the filing of the certificate of limited
liability company in the office of the Secretary of State of the State of
Delaware in accordance with the Act. The name of the Company is "NEG Operating
LLC" and all business shall be conducted under that name.
2. Purpose. The purpose for which the Company has been formed is to
engage in any lawful act or activity which the member may from time to time
determine.
3. Registered Office. The registered office of the Company in the State
of Delaware is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
4. Registered Agent. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Admission. Upon execution and delivery of this Operating Agreement,
NEG Holding LLC, a Delaware limited liability company, is admitted as the sole
member of the Company. The member shall not be required to make any capital
contribution to the Company but may make capital contributions from time to
time.
6. Resignation of Member. The member may resign from the Company at any
time.
7. Assignment of Interest. The member may assign all or any portion of
its membership interest in the Company to any person ("Assignee"). Each
Assignee shall become a member of the Company upon the approval of the member.
8. Title to Property. Title to any property (whether real, personal or
mixed) owned by or leased to the Company shall be held in the name of the
Company, or in the name of any nominee the member may in its discretion
designate.
9. Members. There shall be a managing member ("Managing Member") of the
Company which Managing Member shall have the powers and duties equivalent to the
duties of a corporate board of directors. Initially such Managing Member shall
be NEG Holding LLC who shall serve as such until its successor has been elected.
At any time, but in no event less frequently than once each calendar year, the
members shall vote upon whether the Managing Member shall be replaced and, if
so, to select a new Managing Member. It shall require the vote of the holders of
more than 50% of the votes which can be cast by all members to replace the
Managing Member (and to elect a successor Managing Member) who shall no longer
be the Managing Member once the successor has been elected but not before then.
So long as NEG Holding LLC is a member of the Company, NEG Holding LLC shall
have the right to vote the greater of (a) its percentage membership in the
Company and (b) 50% of the votes of all members making such selection. The
balance of the votes shall be cast by all other members of the Company in
proportion to their share of the percentage membership in the Company not owned
by NEG Holding LLC.
10. Profits and Losses. All profits and losses of the Company shall be
allocated to the member. The member shall not be liable for any debts or losses
of the Company beyond the aggregate amount of its capital contribution, except
as otherwise required by law.
11. Distributions. At such times as determined by the member taking
into account, among other things, the member's obligation to the extent same
exists, to make distributions to its member(s) under its operating agreement,
the member shall cause the Company to distribute to the member any cash or
property held by it which is neither reasonably necessary for the operation of
the Company nor in violation of the Act. The member shall be liable to the
Company for distributions made pursuant to this Section 11 only to the extent
now or hereafter provided by the Act.
12. Dissolution. The Company shall dissolve, and its affairs shall be
wound up, upon the occurrence of an event of dissolution of the Company under
the Act.
13. Amendment. This Operating Agreement may be amended only in writing.
14. Application of Delaware Law. This Operating Agreement, and the
application of interpretation hereof, shall be governed exclusively by its terms
and by the laws of the State of Delaware, and specifically the Act.
15. Taxable Year. The taxable year of the Company shall be the calendar
year.
16. No Third Party Beneficiaries. No person, other than the member,
shall have any rights hereunder.
17. Headings. The headings in this Operating Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Operating Agreement or any provision
hereof.
18. Other Matter. ▇▇▇▇▇▇ Partners, for itself and not as Managing
Member of NEG Holding LLC, hereby agrees to be personally liable for the debt,
obligations and liabilities of the Company and of its subsidiary, ▇▇▇▇▇ National
LLC to the extent that same are attributable to any oil or gas property owned by
the Company and/or ▇▇▇▇▇ National LLC and were incurred when NEG Holding LLC was
the Managing Member and ▇▇▇▇▇▇ Partners was the Managing Member thereof and, in
the case of ▇▇▇▇▇ National LLC, while all of its membership interests are held
by the Company.
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IN WITNESS WHEREOF, the undersigned has caused the execution of this
Operating Agreement of NEG Operating LLC, as of May 1,2001.
NEG Holding LLC, Sole Member
By: ▇▇▇▇▇▇ Partners, Managing Member
By: Astral Gas Corp and Cigas Corp.,
General Partners
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
With respect only to Paragraph 18 hereof,
▇▇▇▇▇▇ Partners
By Astral Gas Corp. and Cigas Corp., General
Partners
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
[Signature Page of NEG Operating LLC, Operating Agreement
dated as of May 1, 2001]
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