Member Control Agreement: Definition & Sample

A member control agreement, or MCA, is a contract that outlines the rights and responsibilities of both parties involved in membership. Business owners starting an association should understand what they need to do to ensure they have a valid MCA before their members sign it.

Member control agreements outline the percentage of ownership and roles and responsibilities in exchange for that ownership. This type of agreement helps lay out expectations between multiple parties controlling a company, such as a limited liability company.

Member Control Agreement Sample

Control Agreement Regarding Limited Liability

AGREEMENT (as amended, modified, restated and/or supplemented from time to time, this “ Agreement ”), dated as of February 22, 2005, among BioDelivery Sciences International, Inc., a Delaware corporation (the “ Pledgor ”), Laurus Master Fund, Ltd. (the “ Pledgee ”), and Bioral Nutrient Delivery, LLC, a Delaware limited liability company, as the issuer of the Limited Liability Company Interests (as defined below) (the “ Issuer ”).

W I T N E S S E T H :

WHEREAS, the Pledgor and the Pledgee have entered into a Stock Pledge Agreement, dated as of February 22, 2005 (as amended, modified, restated and/or supplemented from time to time, the “ Pledge Agreement ”), under which, among other things, in order to secure the payment of the Indebtedness (as defined in the Pledge Agreement), the Pledgor has or will pledge to the Pledgee, and grant a security interest in favor of the Pledgee in, all of the right, title and interest of the Pledgor in and to any and all equity interests (including, without limitation, limited liability company interests and membership interests) from time to time issued by the Issuer (collectively, the “ Limited Liability Company Interests ”), whether now existing or hereafter from time to time acquired by the Pledgor (with all of such Limited Liability Company Interests being herein collectively called the “ Issuer Pledged Interests ”); and

WHEREAS, the Pledgor desires the Issuer to enter into this Agreement in order to perfect the security interest of the Pledgee under the Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the Issuer Pledge Interests and to provide for the rights of the parties under this Agreement;

NOW THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. The Pledgor hereby irrevocably authorizes and directs the Issuer , and the Issuer hereby agrees, to comply with any and all instructions and orders originated by the Pledgee (and its successors and assigns) regarding any and all of the Issuer Pledged Interests without the further consent by the registered owner (including the Pledgor), and, following its receipt of a notice from the Pledgee stating that the Pledgee is exercising exclusive control of the Issuer Pledged Interests in accordance with the Stock Pledge Agreement, not to comply with any instructions or orders regarding any or all of the Issuer Pledged Interests originated by any person or entity other than the Pledgee (and its successors and assigns) or a court of competent jurisdiction.

2. The Issuer hereby certifies that (i) no notice of any security interest , lien or other encumbrance or claim affecting the Issuer Pledged Interests (other than the security interest of the Pledgee) has been received by it, and (ii) the security interest of the Pledgee in the Issuer Pledged Interests has been registered in the books and records of the Issuer.

3. The Issuer hereby represents and warrants that (i) the pledge by the Pledgor of , and the granting by the Pledgor of a security interest in, the Issuer Pledged Interests to the Pledgee, does not violate any agreement governing the Issuer or the Issuer Pledged Interests.

4. All notices , statements of accounts, reports, prospectuses, financial statements and other communications to be sent to the Pledgor by the Issuer in respect of the Issuer will also be sent to the Pledgee at the following address:

Laurus Master Fund, Ltd.

c/o Laurus Capital Management, LLC

825 Third Avenue, 14 th Floor

New York, New York 10022

Attention: John E. Tucker, Esq.

Telephone No.: 212-541-5800

Telecopier No.: 212-541-4434

5. Following its receipt of a notice from the Pledgee stating that the Pledgee is exercising exclusive control of the Issuer Pledged Interests and until the Pledgee shall have delivered written notice to the Issuer that all of the Obligations have been paid in full and this Agreement is terminated , the Issuer will send any and all redemptions, distributions, interest or other payments in respect of the Issuer Pledged Interests from the Issuer for the account of the Pledgee only by wire transfers to such account as the Pledgee shall instruct.

6. Except as expressly provided otherwise in Sections 4 and 5 , all notices, instructions, orders and communications hereunder shall be sent or delivered by mail, telegraph, telex, telecopy, cable or overnight courier service and all such notices and communications shall, when mailed, telexed, telecopied, cabled or sent by overnight courier, be effective when deposited in the mails or delivered to overnight courier, prepaid and properly addressed for delivery on such or the next Business Day, or sent by telex or telecopier, except that notices and communications to the Pledgee or the Issuer shall not be effective until received. All notices and other communications shall be in writing and addressed as follows:

(a) if to the Pledgor, at:

BioDelivery Sciences International, Inc.

185 South Orange Avenue, Administrative Building 4

Newark, New Jersey 07103

Attention: James A. McNulty

Facsimile: (813) 288-8757

Ellenoff Grossman & Schole LLP

370 Lexington Ave.

New York, New York 10017

Attention: Barry I. Grossman

Facsimile: (212) 370-7889

(b) if to the Pledgee, at the address given in Section 4 hereof;

(c) if to the Issuer, at:

Bioral Nutrient Delivery, LLC

4419 West Sevilla Street

Tampa, Florida 33629

Attention: James A. McNulty

Facsimile: (813) 288-8757

or at such other address as shall have been furnished in writing by any Person described above to the party required to give notice hereunder. As used in this Section 6, “ Business Day ” means any day other than a Saturday, Sunday, or other day in which banks in New York are authorized to remain closed.

7. This Agreement shall be binding upon the successors and assigns of the Pledgor and the Issuer and shall inure to the benefit of and be enforceable by the Pledgee and its successors and assigns . This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto. None of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.

8. This Agreement shall be governed by and construed in accordance with the laws of the State of New York , without regard to its principles of conflict of laws (other than the principles set forth in Section 5-1401 of the General Obligations Law of the State of New York).

IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this Agreement to be executed by their duly elected officers duly authorized as of the date first above written.

BIODELIVERY SCIENCES INTERNATIONAL, INC.,

/S/ James A. McNulty

LAURUS MASTER FUND, LTD.,

BIORAL NUTRIENT DELIVERY, LLC,

/S/ James A. McNulty

Name: James A. McNulty Title: Chief Financial Officer of its managing member

Reference:
Security Exchange Commission - Edgar Database, EX-10.9 10 dex109.htm CONTROL AGREEMENT, Viewed January 26, 2022, View Source on SEC.

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Craig Y.

Craig Y.

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