Actions Requiring Approval of the Board. Except as otherwise provided by this Agreement, the Company shall not, shall not permit any Subsidiary of the Company to, and shall not authorize or permit any officer or agent of the Company or any of its Subsidiaries on behalf of the Company or any of its Subsidiaries to, effect any material action or any action outside of the ordinary course of business, including any of the following actions, without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or the terms of an agreement specifically approved by the Board that specifically grants the authority to engage in the applicable action (excluding any grant of plenary or similar authority): (i) engage in any business activity other than Midstream Activities; (ii) incur any Indebtedness or enter into any definitive agreement providing for the incurrence of any Indebtedness, other than any Additional Contribution Loan; (iii) sell, transfer, lease (as lessor), abandon or otherwise dispose of (i) any assets with a value in excess of $2,000,000 or (ii) any Equity Interests in the Company or any Subsidiary, in either case other than to the Company or any Subsidiary (other than in accordance with Section 6.03); (iv) form or dissolve any Subsidiary of the Company; (v) acquire (A) any Equity Interests in any Person or (B) any assets or rights that constitute substantially all of the assets or rights of any Person, or that are operated by any Person as a separate business, division, or asset group; (vi) merge, consolidate, or reorganize; (vii) enter into any partnership or joint venture; (viii) amend, modify or waive any provisions of the Certificate of Formation, this Agreement (other than revisions permitted by Section 16.02), or the constituent documents of any Subsidiary of the Company; (ix) dissolve or liquidate, or file any voluntary petition for bankruptcy; (x) undertake any public offering of securities or any registration of any offering or securities under the Securities Act; (xi) admit any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) or redeem any Membership Interest; (xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company; (xiii) make determinations of Available Cash or, other than distributions by any Subsidiary of the Company to another Subsidiary of the Company or to the Company, make any dividend or distribution on Equity Interests other than in accordance with this Agreement; (xiv) agree to any restrictions on the ability of the Company or any Subsidiary to make dividends or distributions on Equity Interests; (xv) appoint or remove the Certified Public Accountants; (xvi) change any accounting or tax policy (other than as required by Required Accounting Practices or applicable law); (xvii) subject to Section 8.04(c), remove the Operator or appoint any successor Operator; (xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise of any claim or proceeding (A) in which the aggregate amount claimed by the Company or any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries; (xix) approve or amend the Annual Budget, or any other material capital or operating budget of the Company or any of its Subsidiaries; (xx) take any action that would reasonably be expected to cause the Annual Budget, or any capital budget of the Company or any of its Subsidiaries in excess of $5 million, then in effect to be exceeded in the aggregate by more than ten percent (10%), except for Emergency Expenditures and reimbursement or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligation; (xxi) except to the extent reasonably contemplated in the Annual Budget then in effect, or in any delegation of approval policy approved by the Board and then in effect, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during the life of such contract; (xxii) enter into any Hedge Contract; (xxiii) make any material filing with any governmental authority, other than in the ordinary course of business; (xxiv) issue any New Interests, other than pursuant to Section 6.03(e), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions of the nature described in the proviso in the definition of “New Interests” in Section 1.01; and (xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a).
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Crestwood Equity Partners LP), Contribution Agreement (Consolidated Edison Inc), Contribution Agreement (Crestwood Midstream Partners LP)
Actions Requiring Approval of the Board. Except (a) In addition to such other matters as otherwise provided by this Agreementthe Board may determine from time to time, the Company shall not, shall not permit any Subsidiary none of the Company toCompany, and shall not authorize or permit any officer of its Subsidiaries (including any member of the Partnership Group), nor any Officer or agent of the Company or any of its Subsidiaries on behalf of the Company or any of its Subsidiaries toSubsidiaries, effect any material action or any action outside of the ordinary course of business, including shall take any of the following actions, actions described in this Section 5.7(a) without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or (in accordance with Section 5.4), unless, and to the terms extent, the taking of an agreement such action is expressly and specifically contemplated by any Annual Plan and any Interim Annual Plan approved by pursuant to this Section 5.7 (as the Board that specifically grants the authority to engage same may be adjusted as provided in the applicable action (excluding any grant last sentence of plenary or similar authoritySection 5.8):
(i) engage voluntarily approve, commence or take any action to effectuate or that would result in a Bankruptcy Event with respect to the Company or any business activity other than Midstream ActivitiesSubsidiary of the Company or wind up or dissolve the Company or any Subsidiary of the Company;
(ii) incur make any Indebtedness election to cause the Company or enter into any definitive agreement providing Subsidiary of the Company to be classified as other than a partnership for the incurrence of any Indebtednessfederal income tax purposes, other than any Additional Contribution Loannecessary tax elections for the Partnership to meet qualifying income requirements of Section 7704(c) – (d) of the Code;
(iii) sell(A) permit or effect any material change in the business lines of the Company or any Subsidiary of the Company outside the scope of the Business, transfer(B) form, lease (as lessor)organize, abandon incorporate or otherwise dispose create any Subsidiary of (i) any assets the Company in a manner that would adversely interfere with a value or alter the governance and/or economic terms otherwise set forth herein or in excess of $2,000,000 the Partnership Agreement or (iiC) alter, repeal, amend or adopt any provision of the governing documents of any Subsidiary of the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement;
(iv) (A) redeem, repurchase or otherwise acquire any Equity Interests in the Company or any SubsidiarySubsidiary of the Company, other than (1) a redemption of Equity Interests of Persons who are not Members or Affiliates of Members of the Company or the Partnership Group or (2) a redemption of Equity Interests in the Company owned by Officers, or other employees or service providers, in either case other than connection with a termination of services to the Company or any Subsidiary (other than in accordance with Section 6.03);
(iv) form or dissolve any Subsidiary of the CompanyCompany or as otherwise provided in the terms of such Equity Interests; (B) split, combine or reclassify any Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; (C) except for distributions pursuant to Section 4.1(a) or Section 4.1(b) and distributions pursuant to Article X, declare or pay any dividends or other distributions on the Units or other Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; or (D) permit or effect any direct or indirect Transfer of Equity Interests in the Partnership held by the Company or permit or effect any direct or indirect Transfer of Equity Interests in the Operating Company held by the Partnership;
(v) acquire (A) except as provided in Section 5.14 and subject to Section 5.7(a)(iv)(D), issue any Additional Units, or authorize, issue, sell, dividend, distribute, convert, exchange, cancel, retire or otherwise dispose of any Equity Interests in any Person Interests, phantom equity or (B) any assets similar rights or rights that constitute substantially all of the assets or rights of any Person, or that are operated by any Person as a separate business, division, or asset group;
(vi) merge, consolidate, or reorganize;
(vii) enter into any partnership or joint venture;
(viii) amend, modify or waive any provisions of the Certificate of Formation, this Agreement (other than revisions permitted by Section 16.02), or the constituent documents of any Subsidiary of the Company;
(ix) dissolve or liquidate, or file any voluntary petition for bankruptcy;
(x) undertake any public offering of securities interests or any registration of any offering warrants, options or other similar rights or interests or securities under the Securities Act;
(xi) admit convertible into or exchangeable for any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) Equity Interests, phantom equity or redeem any Membership Interest;
(xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company;
(xiii) make determinations of Available Cash or, other than distributions by any Subsidiary of the Company to another Subsidiary of the Company or to the Company, make any dividend or distribution on Equity Interests other than in accordance with this Agreement;
(xiv) agree to any restrictions on the ability similar rights of the Company or any Subsidiary to make dividends or distributions on Equity Interests;
(xv) appoint or remove of the Certified Public Accountants;
(xvi) change any accounting or tax policy Company (other than as required any such issuance by Required Accounting Practices a Subsidiary of the Company to the Company or applicable lawa wholly owned Subsidiary of the Company);
(xviivi) subject to Section 8.04(c), remove the Operator undertake or appoint any successor Operator;
(xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise effect an initial public offering of any claim or proceeding (A) in which the aggregate amount claimed by the Company or any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries;
(xix) approve or amend the Annual Budget, or any other material capital or operating budget Equity Interests of the Company or any of its Subsidiaries;
(xxvii) take any action that would reasonably be expected to cause other than (i) the Annual Budgetincurrence of trade payables arising in the ordinary course of operating the Business, and (ii) drawings under, or any Liens permitted or created pursuant to, any credit facility entered into by the Company or any of its Subsidiaries in connection with the transactions contemplated by the Unit Purchase and Contribution Agreement or previously approved by the Board (“Bank Debt”), (A) incur or refinance any Indebtedness, assume any Indebtedness of, or guarantee or otherwise become responsible for the obligations of, any Person, in any single transaction or series of transactions in excess of $5,000,000 or (B) permit or create any Lien on any material assets or properties of the Company or any Subsidiary of the Company other than Permitted Liens;
(viii) directly or indirectly purchase or otherwise acquire any material assets or all or any part of the business of, or Equity Interests in, or invest in or make a capital contribution to, any Person (other than a wholly owned Subsidiary of the Company), including in connection with the formation of or participation in any joint venture, partnership or similar arrangement, or commence any capital project not included in the Annual Plan;
(ix) Transfer, sell or otherwise dispose of any material assets or properties of the Company or of any of its Subsidiaries, other than sales of inventory in the ordinary course of business consistent with past practice;
(x) effect any merger, consolidation or other similar business combination of the Company or any Subsidiary of the Company;
(xi) (A) enter into, terminate or amend any hedging agreements or debt financing agreements, (B) enter into, terminate or amend any Affiliate Contract, excluding (for purposes of entry only) those Affiliate Contracts to be entered into on the Closing Date pursuant to the Unit Purchase and Contribution Agreement or (C) enter into, terminate or materially amend any other contract or agreement that is material to the operation of the Business (including administrative services agreements, operating agreements or any contract that limits the ability of the Company or any of its Subsidiaries to engage in any line of business or in any geographical area);
(xii) subject to Section 5.8, (A) establish or approve any Annual Plan or other material budget of the Company or any of its Subsidiaries in excess (other than the Initial Annual Plan), or (B) amend, supplement, change or modify any Annual Plan or any other material budget of $5 millionthe Company or any of its Subsidiaries if the amendment, then in effect supplement or change is reasonably likely to be exceeded in increase the aggregate amount of the Annual Plan by more than ten percent (10%), except for Emergency Expenditures and reimbursement 5% or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligationmore;
(xxixiii) except engage, retain or terminate external legal counsel to the Partnership or the Company; or
(xiv) agree or commit to do any of the foregoing.
(b) In the event of a Change of Control of EXCO, during the six-month period following the date of such Change of Control of EXCO upon 30 days’ written notice (“SC Notice”), the Harbinger Member (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)) may request the creation and designation of a special committee (the “Special Committee”) of the Board consisting of a majority of Harbinger Directors and, to the extent reasonably contemplated in the Annual Budget then in effectEXCO Member has the right to designate Directors pursuant to Section 5.3(a), or a minority of EXCO Directors. Each of the Harbinger Member and the EXCO Member shall designate individuals among their existing Board designees to such Special Committee promptly, and in any delegation of approval policy approved by event within five (5) days after the Harbinger Member delivers the SC Notice to the Board and then the EXCO Member. In the event the Board or the EXCO Member fails to designate a Special Committee or appoint an individual in effectaccordance with the preceding sentence, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during respectively, the life Harbinger Member may create and designate the Special Committee by written notice of such contract;
(xxii) enter into any Hedge Contract;
(xxiii) make any material filing action to the Board and the EXCO Member. After the Harbinger Member has requested the creation of the Special Committee in accordance with any governmental authority, other than in the ordinary course of business;
(xxiv) issue any New Interests, other than pursuant to this Section 6.03(e5.7(b), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions (A) none of the nature Company, any of its Subsidiaries, nor any Officer or agent of the Company on behalf of the Company or any of its Subsidiaries, shall take any of actions described in clauses (v) and (vi) of Section 5.7(a) without the proviso in approval of the definition of “New Interests” in Section 1.01; and
Special Committee (xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a5.4) and (B) the Harbinger Member shall have the right (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)), exercisable within ninety (90) days following the two-month anniversary of such Change of Control of EXCO, to delegate to the Special Committee the items in clauses (vii) (other than the incurrence of Indebtedness under the Bank Debt, which would not constitute a Full Special Committee Control Right) through (xii) of Section 5.7(a) (the “Full Special Committee Control Rights”). For the avoidance of doubt, those actions subject to approval by the Special Committee pursuant to this Section 5.7(b), and necessary ancillary actions to such matters, will not require further approval pursuant to Sections 5.7(a), 5.7(e) or 5.7(f).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Harbinger Group Inc.)
Actions Requiring Approval of the Board. Except (a) In addition to such other matters as otherwise provided by this Agreementthe Board may determine from time to time, the Company shall not, shall not permit any Subsidiary none of the Company toCompany, and shall not authorize or permit any officer of its Subsidiaries (including any member of the Partnership Group), nor any Officer or agent of the Company or any of its Subsidiaries on behalf of the Company or any of its Subsidiaries toSubsidiaries, effect any material action or any action outside of the ordinary course of business, including shall take any of the following actions, actions described in this Section 5.7(a) without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or (in accordance with Section 5.4), unless, and to the terms extent, the taking of an agreement such action is expressly and specifically contemplated by any Annual Plan and any Interim Annual Plan approved by pursuant to this Section 5.7 (as the Board that specifically grants the authority to engage same may be adjusted as provided in the applicable action (excluding any grant last sentence of plenary or similar authoritySection 5.8):
(i) engage voluntarily approve, commence or take any action to effectuate or that would result in a Bankruptcy Event with respect to the Company or any business activity other than Midstream ActivitiesSubsidiary of the Company or wind up or dissolve the Company or any Subsidiary of the Company;
(ii) incur make any Indebtedness election to cause the Company or enter into any definitive agreement providing Subsidiary of the Company to be classified as other than a partnership for the incurrence of any Indebtednessfederal income tax purposes, other than any Additional Contribution Loannecessary tax elections for the Partnership to meet qualifying income requirements of Section 7704(c) – (d) of the Code;
(iii) sell(A) permit or effect any material change in the business lines of the Company or any Subsidiary of the Company outside the scope of the Business, transfer(B) form, lease (as lessor)organize, abandon incorporate or otherwise dispose create any Subsidiary of (i) any assets the Company in a manner that would adversely interfere with a value or alter the governance and/or economic terms otherwise set forth herein or in excess of $2,000,000 the Partnership Agreement or (iiC) alter, repeal, amend or adopt any provision of the governing documents of any Subsidiary of the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement;
(iv) (A) redeem, repurchase or otherwise acquire any Equity Interests in the Company or any SubsidiarySubsidiary of the Company, other than (1) a redemption of Equity Interests of Persons who are not Members or Affiliates of Members of the Company or the Partnership Group or (2) a redemption of Equity Interests in the Company owned by Officers, or other employees or service providers, in either case other than connection with a termination of services to the Company or any Subsidiary (other than in accordance with Section 6.03);
(iv) form or dissolve any Subsidiary of the CompanyCompany or as otherwise provided in the terms of such Equity Interests; (B) split, combine or reclassify any Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; (C) except for distributions pursuant to Section 4.1(a) or Section 4.1(b) and distributions pursuant to Article X, declare or pay any dividends or other distributions on the Units or other Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; or (D) permit or effect any direct or indirect Transfer of Equity Interests in the Partnership held by the Company or permit or effect any direct or indirect Transfer of Equity Interests in the Operating Company held by the Partnership;
(v) acquire (A) except as provided in Section 5.14 and subject to Section 5.7(a)(iv)(D), issue any Additional Units, or authorize, issue, sell, dividend, distribute, convert, exchange, cancel, retire or otherwise dispose of any Equity Interests in any Person Interests, phantom equity or (B) any assets similar rights or rights that constitute substantially all of the assets or rights of any Person, or that are operated by any Person as a separate business, division, or asset group;
(vi) merge, consolidate, or reorganize;
(vii) enter into any partnership or joint venture;
(viii) amend, modify or waive any provisions of the Certificate of Formation, this Agreement (other than revisions permitted by Section 16.02), or the constituent documents of any Subsidiary of the Company;
(ix) dissolve or liquidate, or file any voluntary petition for bankruptcy;
(x) undertake any public offering of securities interests or any registration of any offering warrants, options or other similar rights or interests or securities under the Securities Act;
(xi) admit convertible into or exchangeable for any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) Equity Interests, phantom equity or redeem any Membership Interest;
(xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company;
(xiii) make determinations of Available Cash or, other than distributions by any Subsidiary of the Company to another Subsidiary of the Company or to the Company, make any dividend or distribution on Equity Interests other than in accordance with this Agreement;
(xiv) agree to any restrictions on the ability similar rights of the Company or any Subsidiary to make dividends or distributions on Equity Interests;
(xv) appoint or remove of the Certified Public Accountants;
(xvi) change any accounting or tax policy Company (other than as required any such issuance by Required Accounting Practices a Subsidiary of the Company to the Company or applicable lawa wholly owned Subsidiary of the Company);
(xviivi) subject to Section 8.04(c), remove the Operator undertake or appoint any successor Operator;
(xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise effect an initial public offering of any claim or proceeding (A) in which the aggregate amount claimed by the Company or any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries;
(xix) approve or amend the Annual Budget, or any other material capital or operating budget Equity Interests of the Company or any of its Subsidiaries;
(xxvii) take other than (i) the incurrence of trade payables arising in the ordinary course of operating the Business, and (ii) drawings under any action that would reasonably be expected to cause credit facility entered into by the Company or any of its Subsidiaries in connection with the transactions contemplated by the Unit Purchase and Contribution Agreement or previously approved by the Board (“Bank Debt”), (A) incur or refinance any Indebtedness, assume any Indebtedness of, or guarantee or otherwise become responsible for the obligations of, any Person, in any single transaction or series of transactions in excess of $5,000,000 or (B) permit or create any Lien on any material assets or properties of the Company or any Subsidiary of the Company other than Permitted Liens;
(viii) directly or indirectly purchase or otherwise acquire any material assets or all or any part of the business of, or Equity Interests in, or invest in or make a capital contribution to, any Person (other than a wholly owned Subsidiary of the Company), including in connection with the formation of or participation in any joint venture, partnership or similar arrangement, or commence any capital project not included in the Annual BudgetPlan;
(ix) Transfer, sell or otherwise dispose of any material assets or properties of the Company or of any of its Subsidiaries, other than sales of inventory in the ordinary course of business consistent with past practice;
(x) effect any merger, consolidation or other similar business combination of the Company or any capital Subsidiary of the Company;
(xi) (A) enter into, terminate or amend any hedging agreements or debt financing agreements, (B) enter into, terminate or amend any Affiliate Contract, excluding (for purposes of entry only) those Affiliate Contracts to be entered into on the Closing Date pursuant to the Unit Purchase and Contribution Agreement or (C) enter into, terminate or materially amend any other contract or agreement that is material to the operation of the Business (including administrative services agreements, operating agreements or any contract that limits the ability of the Company or any of its Subsidiaries to engage in any line of business or in any geographical area);
(xii) subject to Section 5.8, (A) establish or approve any Annual Plan or other material budget of the Company or any of its Subsidiaries in excess (other than the Initial Annual Plan), or (B) amend, supplement, change or modify any Annual Plan or any other material budget of $5 millionthe Company or any of its Subsidiaries if the amendment, then in effect supplement or change is reasonably likely to be exceeded in increase the aggregate amount of the Annual Plan by more than ten percent (10%), except for Emergency Expenditures and reimbursement 5% or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligationmore;
(xxixiii) except engage, retain or terminate external legal counsel to the Partnership or the Company; or
(xiv) agree or commit to do any of the foregoing.
(b) In the event of a Change of Control of EXCO, during the six-month period following the date of such Change of Control of EXCO upon 30 days’ written notice (“SC Notice”), the Harbinger Member (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)) may request the creation and designation of a special committee (the “Special Committee”) of the Board consisting of a majority of Harbinger Directors and, to the extent reasonably contemplated in the Annual Budget then in effectEXCO Member has the right to designate Directors pursuant to Section 5.3(a), or a minority of EXCO Directors. Each of the Harbinger Member and the EXCO Member shall designate individuals among their existing Board designees to such Special Committee promptly, and in any delegation of approval policy approved by event within five (5) days after the Harbinger Member delivers the SC Notice to the Board and then the EXCO Member. In the event the Board or the EXCO Member fails to designate a Special Committee or appoint an individual in effectaccordance with the preceding sentence, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during respectively, the life Harbinger Member may create and designate the Special Committee by written notice of such contract;
(xxii) enter into any Hedge Contract;
(xxiii) make any material filing action to the Board and the EXCO Member. After the Harbinger Member has requested the creation of the Special Committee in accordance with any governmental authority, other than in the ordinary course of business;
(xxiv) issue any New Interests, other than pursuant to this Section 6.03(e5.7(b), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions (A) none of the nature Company, any of its Subsidiaries, nor any Officer or agent of the Company on behalf of the Company or any of its Subsidiaries, shall take any of actions described in clauses (v) and (vi) of Section 5.7(a) without the proviso in approval of the definition of “New Interests” in Section 1.01; and
Special Committee (xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a5.4) and (B) the Harbinger Member shall have the right (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)), exercisable within ninety (90) days following the two-month anniversary of such Change of Control of EXCO, to delegate to the Special Committee the items in clauses (vii) (other than the incurrence of Indebtedness under the Bank Debt, which would not constitute a Full Special Committee Control Right) through (xii) of Section 5.7(a) (the “Full Special Committee Control Rights”). For the avoidance of doubt, those actions subject to approval by the Special Committee pursuant to this Section 5.7(b), and necessary ancillary actions to such matters, will not require further approval pursuant to Sections 5.7(a), 5.7(e) or 5.7(f).
(c) So long as the EXCO Member has the right to designate at least one Director pursuant to Section 5.3(a), neither the Company, any of its Subsidiaries, nor any Officer or agent of the Company on behalf of the Company or any of its Subsidiaries, shall take any of the actions described in Sections 5.7(a)(i), (ii), (iii) or (iv) without the approval of at least one EXCO Director.
(d) So long as the Harbinger Member has the right to designate at least one Director pursuant to Section 5.3(a), neither the Company, any of its Subsidiaries, nor any Officer or agent of the Company on behalf of the Company or any of its Subsidiaries, shall take any of the actions described in Sections 5.7(a)(i), (ii), (iii) or (iv) without the approval of at least one Harbinger Director.
(e) In addition to the approval set forth in Section 5.7(a)(xi)(B), any Affiliate Contract (excluding those Affiliate Contracts to be entered into on the Closing Date pursuant to the Unit Purchase and Contribution Agreement) proposed to be entered into with a value of more than $1,000,000 per annum or $5,000,000 in the aggregate proposed by or for the benefit of the EXCO Group shall be approved by at least one Harbinger Director so long as the Harbinger Member has the right to designate at least one Director pursuant to Section 5.3(a).
(f) In addition to the approval set forth in Section 5.7(a)(xi)(B), any Affiliate Contract (excluding those Affiliate Contracts to be entered into on the Closing Date pursuant to the Unit Purchase and Contribution Agreement) proposed to be entered into with a value of more than $1,000,000 per annum or $5,000,000 in the aggregate for all such Affiliate Contracts proposed by or for the benefit of the Harbinger Group shall be approved by at least one EXCO Director so long as the EXCO Member has the right to designate at least one Director pursuant to Section 5.3(a).
(g) Notwithstanding anything in this Section 5.7 to the contrary, any decision by the Board to pursue (i) the acquisition of any Completed Acquisition Opportunity (or any related debt or equity financing and other related actions and agreements requiring Board approval pursuant to Section 5.7(a)) or any Disposition Opportunity (or any related debt or equity financing and other related actions and agreements requiring Board approval pursuant to Section 5.7(a)) shall be made (A) solely by the Harbinger Directors, so long as the Harbinger Member has the right to designate at least one Director pursuant to Section 5.3(a), in the case of a Completed Acquisition Opportunity from the EXCO Group or a Disposition Opportunity from the EXCO Group and (B) solely by the EXCO Directors, so long as the EXCO Member has the right to designate at least one Director pursuant to Section 5.3(a), in the case of a Completed Acquisition Opportunity from the Harbinger Group or a Disposition Opportunity from the Harbinger Group, and (ii) the acquisition of any Outstanding Acquisition Opportunity (or any related debt or equity financing or other related actions or agreements requiring Board approval pursuant to Section 5.7(a)) shall be made solely by the Board; provided, that if any EXCO Director rejects the pursuit and acquisition of any Outstanding Acquisition Opportunity (or any related debt or equity financings and other related actions and agreements requiring Board approval pursuant to Section 5.7(a)) by the Partnership, then the EXCO Group shall be prohibited from pursuing or acquiring any direct or indirect interest in such Outstanding Acquisition Opportunity.
(h) Notwithstanding anything in this Agreement to the contrary, any Enforcement Activities shall be conducted by or under the direction of the Board; provided, that, notwithstanding anything in this Agreement to the contrary (including any required consents with respect to such action pursuant to Section 5.7 or otherwise), any Conflicted Director shall not participate in any vote regarding such Enforcement Activities at any meeting of the Board, shall not be counted or required to be present to constitute a quorum of such Board, and shall not be counted or required for purposes of determining whether such actions by the Company receive the minimum vote necessary to take such action. Notwithstanding any provision herein to the contrary, in connection with any Enforcement Activities, the Company (acting through a committee of the Board consisting only of Directors who are not Conflicted Directors) may withhold access to information relating to the Company or its Subsidiaries or any Enforcement Activities where required, upon the advice of outside counsel to the Company, to preserve attorney-client, work product or similar legal privileges of the Company or its Subsidiaries. No Officer or other agent of the Company that is also an officer, director, member, manager, stockholder, partner, employee or other agent of a Conflicted Member or a Conflicted Affiliate shall have any obligation to take any action on behalf of the Company or any of its Subsidiaries or be requested or required by the Company or the Board to take any action with respect to any Enforcement Activities, and no such Officer or other agent shall participate in any Enforcement Activities (whether on behalf of the Partnership Group, on the one hand, or the Conflicted Member or Conflicted Affiliate, on the other), except to provide information, documents and other related items reasonably requested by the Company (acting through a committee of the Board consisting only of Directors who are not Conflicted Directors) in connection with such Enforcement Activities. Except with respect to such Person’s unreasonable failure to provide information, documents or other related items requested by the Company (acting through a committee of the Board consisting only of Directors who are not Conflicted Directors) in connection with such Enforcement Activities and to provide testimony, give evidence and otherwise participate in such Enforcement Activities involving the Conflicted Member, any such Person’s failure or refusal to take any such action shall not constitute in and of itself: (i) a breach of any duty, fiduciary or otherwise, owed by such Person to the Company; or (ii) fraud, bad faith or willful misconduct on the part of such Person.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Exco Resources Inc)
Actions Requiring Approval of the Board. Except In addition to such other matters as otherwise provided the Board may from time to time by this Agreementresolution determine, neither the Company shall not, shall not permit nor any Subsidiary of the Company to, and shall not authorize or permit any officer Officer or agent of the Company shall take any of the actions described in this Section 5.7 (in each case except as provided in Section 3.6, Section 3.7, Section 3.8 and Article XIV) without the approval of the Board:
(a) subject to Section 5.9, approve the Annual Plan or any of its Subsidiaries on behalf other budget of the Company or any of its Subsidiaries to, amendments or alterations thereto;
(b) effect any material action or any action outside of the ordinary course of business, including any of the following actions, without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or the terms of an agreement specifically approved by the Board that specifically grants the authority to engage change in the applicable action (excluding any grant business lines of plenary or similar authority):
(i) engage in any business activity other than Midstream Activities;
(ii) incur any Indebtedness or enter into any definitive agreement providing for the incurrence of any Indebtedness, other than any Additional Contribution Loan;
(iii) sell, transfer, lease (as lessor), abandon or otherwise dispose of (i) any assets with a value in excess of $2,000,000 or (ii) any Equity Interests in the Company or any Subsidiary, in either case other than to the Company or any Subsidiary (other than in accordance with Section 6.03);
(iv) form or dissolve any Subsidiary of the Company;
(vc) acquire acquire, directly or indirectly, another business or any competing investment other than as previously approved in the Annual Plan;
(Ad) any Equity Interests sell or permit the sale, in any Person * period, of assets of the Company or of any Subsidiary of the Company, with an aggregate value exceeding $* or such other amount determined by a resolution of the Board;
(Be) issue any assets Capital Request Notice to a Capital Member at any time when such Capital Member’s Unused Capital Commitment is equal to zero;
(f) incur any indebtedness for borrowed money in the name of the Company or rights that constitute substantially all any Subsidiary of the Company, create any Lien on the assets or rights properties of the Company or any Subsidiary of the Company; post a letter of credit, guaranty or provide surety for the obligations of any Person, third party; or that are operated by enter into any Person as a separate business, division, or asset groupmaterial amendment with respect to the foregoing;
(vig) merge, consolidate, settle any claims relating to the Company or reorganizeany Subsidiary of the Company not covered by insurance;
(viih) modify any accounting policies of the Company or any Subsidiary of the Company except as required by regulatory authorities or the Company’s or such Subsidiary’s independent accountants;
(i) enter into any partnership transactions with any Affiliate of any Member, except as contemplated by the Master Services Agreement, the Intellectual Property License Agreement, the Joint Development Agreement, the Credit Support Documents, or joint ventureany Award Agreement or employment agreement (or similar service agreements) between any Person and the Company or any Subsidiary of the Company existing as of Effective Date or any such agreement approved by the Board after the Effective Date, and except for Transfers of Membership Interests in accordance with the terms of this Agreement;
(viiij) amendsubject to Section 5.11, modify cause the removal of any individual under the Master Services Agreement or waive any provisions Officer;
(k) appoint or remove, or cause the Company or any Subsidiary of the Certificate Company to appoint or remove, the independent auditors for the Company or such Subsidiary;
(l) except as contemplated by this Agreement, make any tax election or take, or cause the Company or any Subsidiary of Formationthe Company to take, this Agreement any other action with respect to taxes;
(m) enter into material contracts related to the (i) Red River Project and the Vortex Project (ii) the development and operation of Supply Company, Five Forks or ACS Land Company or (iii) any other than revisions permitted by contract or transaction outside of the ordinary course of business or commit to or make any expenditure in excess of the amounts provided for such expenditures in the Annual Plan;
(n) except as provided in Section 16.023.8 and Section 13.2(c), make or declare any distribution or dividend or change the constituent documents distribution policy of the Company;
(o) effect any purchase, repurchase or redemption (including pursuant to Section 10.15) of any equity securities of the Company or any Subsidiary of the Company;
(ix) dissolve or liquidate, or file any voluntary petition for bankruptcy;
(x) undertake any public offering of securities or any registration of any offering or securities under the Securities Act;
(xi) admit any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) or redeem any Membership Interest;
(xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company;
(xiii) make determinations of Available Cash or, other than distributions by any Subsidiary of the Company to another Subsidiary of the Company or to the Company, make any dividend or distribution on Equity Interests other than in accordance with this Agreement;
(xiv) agree to any restrictions on the ability of the Company or any Subsidiary to make dividends or distributions on Equity Interests;
(xvp) appoint or remove the Certified Public Accountants;Chairman; and
(xviq) change enter into any accounting or tax policy (other than as required by Required Accounting Practices or applicable law);
(xvii) subject agreement to Section 8.04(c), remove the Operator or appoint any successor Operator;
(xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise of any claim or proceeding (A) in which the aggregate amount claimed by the Company or do any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000the foregoing. The Board may, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000unanimous resolution, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries;
(xix) approve or amend the Annual Budget, or any other material capital or operating budget determine additional actions of the Company or any of its Subsidiaries;
(xx) take any action that would reasonably be expected to cause the Annual Budget, or any capital budget require approval of the Company Board under this Section 5.7. Notwithstanding anything in this Section 5.7 to the contrary, unless otherwise provided by the Board by unanimous resolution, any actions or any of its Subsidiaries in excess of $5 million, then in effect to be exceeded expenditures specifically authorized in the aggregate by more than ten percent (10%), except for Emergency Expenditures and reimbursement or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligation;
(xxi) except to the extent reasonably contemplated in the Company’s most recent Annual Budget then in effect, or in any delegation of approval policy Plan approved by the Board shall be authorized for purposes of this Section 5.7 and then shall not be included for purposes of determining whether the applicable threshold amounts are satisfied in effect, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during the life subsection (d) of such contract;
(xxii) enter into any Hedge Contract;
(xxiii) make any material filing with any governmental authority, other than in the ordinary course of business;
(xxiv) issue any New Interests, other than pursuant to this Section 6.03(e), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions of the nature described in the proviso in the definition of “New Interests” in Section 1.01; and
(xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a)5.7.
Appears in 1 contract
Actions Requiring Approval of the Board. Except (a) In addition to such other matters as otherwise provided by this Agreementthe Board may determine from time to time, the Company shall not, shall not permit any Subsidiary none of the Company toCompany, and shall not authorize or permit any officer of its Subsidiaries (including any member of the Partnership Group), nor any Officer or agent of the Company or any of its Subsidiaries on behalf of the Company or any of its Subsidiaries toSubsidiaries, effect any material action or any action outside of the ordinary course of business, including shall take any of the following actions, actions described in this Section 5.7(a) without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or (in accordance with Section 5.4), unless, and to the terms extent, the taking of an agreement such action is expressly and specifically contemplated by any Annual Plan and any Interim Annual Plan approved by pursuant to this Section 5.7 (as the Board that specifically grants the authority to engage same may be adjusted as provided in the applicable action (excluding any grant last sentence of plenary or similar authoritySection 5.8):
(i) engage voluntarily approve, commence or take any action to effectuate or that would result in a Bankruptcy Event with respect to the Company or any business activity other than Midstream ActivitiesSubsidiary of the Company or wind up or dissolve the Company or any Subsidiary of the Company;
(ii) incur make any Indebtedness election to cause the Company or enter into any definitive agreement providing Subsidiary of the Company to be classified as other than a partnership for the incurrence of any Indebtednessfederal income tax purposes, other than any Additional Contribution Loannecessary tax elections for the Partnership to meet qualifying income requirements of Section 7704(c) – (d) of the Code;
(iii) sell(A) permit or effect any material change in the business lines of the Company or any Subsidiary of the Company outside the scope of the Business, transfer(B) form, lease (as lessor)organize, abandon incorporate or otherwise dispose create any Subsidiary of (i) any assets the Company in a manner that would adversely interfere with a value or alter the governance and/or economic terms otherwise set forth herein or in excess of $2,000,000 the Partnership Agreement or (iiC) alter, repeal, amend or adopt any provision of the governing documents of any Subsidiary of the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement;
(iv) (A) redeem, repurchase or otherwise acquire any Equity Interests in the Company or any SubsidiarySubsidiary of the Company, other than (1) a redemption of Equity Interests of Persons who are not Members or Affiliates of Members of the Company or the Partnership Group or (2) a redemption of Equity Interests in the Company owned by Officers, or other employees or service providers, in either case other than connection with a termination of services to the Company or any Subsidiary (other than in accordance with Section 6.03);
(iv) form or dissolve any Subsidiary of the CompanyCompany or as otherwise provided in the terms of such Equity Interests; (B) split, combine or reclassify any Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; (C) except for distributions pursuant to Section 4.1(a) or Section 4.1(b) and distributions pursuant to Article X, declare or pay any dividends or other distributions on the Units or other Equity Interests in the Company in a manner that would adversely interfere with or alter the governance and/or economic terms otherwise set forth herein or in the Partnership Agreement; or (D) permit or effect any direct or indirect Transfer of Equity Interests in the Partnership held by the Company or permit or effect any direct or indirect Transfer of Equity Interests in the Operating Company held by the Partnership;
(v) acquire (A) except as provided in Section 5.14 and subject to Section 5.7(a)(iv)(D), issue any Additional Units, or authorize, issue, sell, dividend, distribute, convert, exchange, cancel, retire or otherwise dispose of any Equity Interests in any Person Interests, phantom equity or (B) any assets similar rights or rights that constitute substantially all of the assets or rights of any Person, or that are operated by any Person as a separate business, division, or asset group;
(vi) merge, consolidate, or reorganize;
(vii) enter into any partnership or joint venture;
(viii) amend, modify or waive any provisions of the Certificate of Formation, this Agreement (other than revisions permitted by Section 16.02), or the constituent documents of any Subsidiary of the Company;
(ix) dissolve or liquidate, or file any voluntary petition for bankruptcy;
(x) undertake any public offering of securities interests or any registration of any offering warrants, options or other similar rights or interests or securities under the Securities Act;
(xi) admit convertible into or exchangeable for any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) Equity Interests, phantom equity or redeem any Membership Interest;
(xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company;
(xiii) make determinations of Available Cash or, other than distributions by any Subsidiary of the Company to another Subsidiary of the Company or to the Company, make any dividend or distribution on Equity Interests other than in accordance with this Agreement;
(xiv) agree to any restrictions on the ability similar rights of the Company or any Subsidiary to make dividends or distributions on Equity Interests;
(xv) appoint or remove of the Certified Public Accountants;
(xvi) change any accounting or tax policy Company (other than as required any such issuance by Required Accounting Practices a Subsidiary of the Company to the Company or applicable lawa wholly owned Subsidiary of the Company);
(xviivi) subject to Section 8.04(c), remove the Operator undertake or appoint any successor Operator;
(xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise effect an initial public offering of any claim or proceeding (A) in which the aggregate amount claimed by the Company or any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries;
(xix) approve or amend the Annual Budget, or any other material capital or operating budget Equity Interests of the Company or any of its Subsidiaries;
(xxvii) take other than (i) the incurrence of trade payables arising in the ordinary course of operating the Business, and (ii) drawings under any action that would reasonably be expected to cause credit facility entered into by the Company or any of its Subsidiaries in connection with the transactions contemplated by the Unit Purchase and Contribution Agreement or previously approved by the Board (“Bank Debt”), (A) incur or refinance any Indebtedness, assume any Indebtedness of, or guarantee or otherwise become responsible for the obligations of, any Person, in any single transaction or series of transactions in excess of $5,000,000 or (B) permit or create any Lien on any material assets or properties of the Company or any Subsidiary of the Company other than Permitted Liens;
(viii) directly or indirectly purchase or otherwise acquire any material assets or all or any part of the business of, or Equity Interests in, or invest in or make a capital contribution to, any Person (other than a wholly owned Subsidiary of the Company), including in connection with the formation of or participation in any joint venture, partnership or similar arrangement, or commence any capital project not included in the Annual BudgetPlan;
(ix) Transfer, sell or otherwise dispose of any material assets or properties of the Company or of any of its Subsidiaries, other than sales of inventory in the ordinary course of business consistent with past practice;
(x) effect any merger, consolidation or other similar business combination of the Company or any capital Subsidiary of the Company;
(xi) (A) enter into, terminate or amend any hedging agreements or debt financing agreements, (B) enter into, terminate or amend any Affiliate Contract, excluding (for purposes of entry only) those Affiliate Contracts to be entered into on the Closing Date pursuant to the Unit Purchase and Contribution Agreement or (C) enter into, terminate or materially amend any other contract or agreement that is material to the operation of the Business (including administrative services agreements, operating agreements or any contract that limits the ability of the Company or any of its Subsidiaries to engage in any line of business or in any geographical area);
(xii) subject to Section 5.8, (A) establish or approve any Annual Plan or other material budget of the Company or any of its Subsidiaries in excess (other than the Initial Annual Plan), or (B) amend, supplement, change or modify any Annual Plan or any other material budget of $5 millionthe Company or any of its Subsidiaries if the amendment, then in effect supplement or change is reasonably likely to be exceeded in increase the aggregate amount of the Annual Plan by more than ten percent (10%), except for Emergency Expenditures and reimbursement 5% or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligationmore;
(xxixiii) except engage, retain or terminate external legal counsel to the Partnership or the Company; or
(xiv) agree or commit to do any of the foregoing.
(b) In the event of a Change of Control of EXCO, during the six-month period following the date of such Change of Control of EXCO upon 30 days’ written notice (“SC Notice”), the Harbinger Member (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)) may request the creation and designation of a special committee (the “Special Committee”) of the Board consisting of a majority of Harbinger Directors and, to the extent reasonably contemplated in the Annual Budget then in effectEXCO Member has the right to designate Directors pursuant to Section 5.3(a), or a minority of EXCO Directors. Each of the Harbinger Member and the EXCO Member shall designate individuals among their existing Board designees to such Special Committee promptly, and in any delegation of approval policy approved by event within five (5) days after the Harbinger Member delivers the SC Notice to the Board and then the EXCO Member. In the event the Board or the EXCO Member fails to designate a Special Committee or appoint an individual in effectaccordance with the preceding sentence, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during respectively, the life Harbinger Member may create and designate the Special Committee by written notice of such contract;
(xxii) enter into any Hedge Contract;
(xxiii) make any material filing action to the Board and the EXCO Member. After the Harbinger Member has requested the creation of the Special Committee in accordance with any governmental authority, other than in the ordinary course of business;
(xxiv) issue any New Interests, other than pursuant to this Section 6.03(e5.7(b), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions (A) none of the nature Company, any of its Subsidiaries, nor any Officer or agent of the Company on behalf of the Company or any of its Subsidiaries, shall take any of actions described in clauses (v) and (vi) of Section 5.7(a) without the proviso in approval of the definition of “New Interests” in Section 1.01; and
Special Committee (xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a5.4) and (B) the Harbinger Member shall have the right (so long as it has the right to designate at least one Director to the Board pursuant to Section 5.3(a)), exercisable within ninety (90) days following the two-month anniversary of such Change of Control of EXCO, to delegate to the Special Committee the items in clauses (vii) (other than the incurrence of Indebtedness under the Bank Debt, which would not constitute a Full Special Committee Control Right) through (xii) of Section 5.7(a) (the “Full Special Committee Control Rights”). For the avoidance of doubt, those actions subject to approval by the Special Committee pursuant to this Section 5.7(b), and necessary ancillary actions to such matters, will not require further approval pursuant to Sections 5.7(a), 5.7(e) or 5.7(f).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Harbinger Group Inc.)
Actions Requiring Approval of the Board. Except In addition to such other matters as otherwise provided the Board may from time to time by this Agreementresolution determine, neither the Company shall not, shall not permit nor any Subsidiary of the Company to, and shall not authorize or permit any officer Officer or agent of the Company shall take any of the actions described in this Section 5.7 (in each case except as provided in Section 3.6, Section 3.7, Section 3.8 and Article XIV) without the approval of the Board:
(a) subject to Section 5.9, approve the Annual Plan or any of its Subsidiaries on behalf other budget of the Company or any of its Subsidiaries to, amendments or alterations thereto;
(b) effect any material action or any action outside of the ordinary course of business, including any of the following actions, without Board approval, except to the extent approval authority is expressly delegated by the Board pursuant to a resolution of the Board or the terms of an agreement specifically approved by the Board that specifically grants the authority to engage change in the applicable action (excluding any grant business lines of plenary or similar authority):
(i) engage in any business activity other than Midstream Activities;
(ii) incur any Indebtedness or enter into any definitive agreement providing for the incurrence of any Indebtedness, other than any Additional Contribution Loan;
(iii) sell, transfer, lease (as lessor), abandon or otherwise dispose of (i) any assets with a value in excess of $2,000,000 or (ii) any Equity Interests in the Company or any Subsidiary, in either case other than to the Company or any Subsidiary (other than in accordance with Section 6.03);
(iv) form or dissolve any Subsidiary of the Company;
(vc) acquire (A) acquire, directly or indirectly, another business or any Equity Interests competing investment other than as previously approved in any Person or (B) any assets or rights that constitute substantially all of the assets or rights of any Person, or that are operated by any Person as a separate business, division, or asset groupAnnual Plan;
(vid) mergesell or permit the sale, consolidatein any * period, or reorganize;
(vii) enter into any partnership or joint venture;
(viii) amend, modify or waive any provisions of assets of the Certificate of Formation, this Agreement (other than revisions permitted by Section 16.02), Company or the constituent documents of any Subsidiary of the Company, with an aggregate value exceeding $* or such other amount determined by a resolution of the Board;
(ixe) dissolve or liquidate, or file issue any voluntary petition for bankruptcyCapital Request Notice to a Member at any time when such Member’s Unused Capital Commitment is equal to zero;
(xf) undertake incur any public offering indebtedness for borrowed money in the name of securities or any registration of any offering or securities under the Securities Act;
(xi) admit any new Member (other than in connection with any New Interests issued in accordance with Section 6.03(e) and Section 6.04 to any Person other than any of the Members) or redeem any Membership Interest;
(xii) authorize or permit any Capital Contribution or make any Capital Call other than in accordance with Section 6.02, or approve any non-cash Capital Contribution, in each case other than by the Company or any of its Subsidiaries to a Subsidiary of the Company, create any Lien on the assets or properties of the Company or any Subsidiary of the Company; post a letter of credit, guaranty or provide surety for the obligations of any third party; or enter into any material amendment with respect to the foregoing;
(xiiig) make determinations settle any claims relating to the Company or any Subsidiary of Available Cash orthe Company not covered by insurance;
(h) modify any accounting policies of the Company or any Subsidiary of the Company except as required by regulatory authorities or the Company’s or such Subsidiary’s independent accountants;
(i) except as contemplated by the Master Services Agreement, other than distributions by the Intellectual Property License Agreement, the Joint Development Agreement and the Effective Date Credit Support Documents and except for Transfers of Membership Interests in accordance with the terms of this Agreement, enter into any transactions with any Affiliate of any Member;
(j) subject to Section 5.11, cause the removal of any individual under the Master Services Agreement or any Officer;
(k) appoint or remove, or cause the Company or any Subsidiary of the Company to another Subsidiary of appoint or remove, the independent auditors for the Company or to the Companysuch Subsidiary;
(l) except as contemplated by this Agreement, make any dividend tax election or distribution on Equity Interests other than in accordance with this Agreement;
(xiv) agree to any restrictions on the ability of take, or cause the Company or any Subsidiary of the Company to make dividends or distributions on Equity Intereststake, any other action with respect to taxes;
(xvm) appoint enter into material contracts related to the Red River Project or remove any other contract or transaction outside of the Certified Public Accountantsordinary course of business or commit to or make any expenditure in excess of the amounts provided for such expenditures in the Annual Plan;
(xvin) except as provided in Section 3.8 and Section 13.2(c), make or declare any distribution or dividend or change any accounting or tax the distribution policy (other than as required by Required Accounting Practices or applicable law);of the Company; and
(xviio) subject enter into any agreement to Section 8.04(c), remove the Operator or appoint any successor Operator;
(xviii) initiate any litigation or other dispute resolution proceeding reasonably expected to involve claims of more than $1,000,000 individually, or agree to any settlement or compromise of any claim or proceeding (A) in which the aggregate amount claimed by the Company or do any of its Subsidiaries with respect to such claim or proceeding exceeds $1,000,000the foregoing. The Board may, (B) requiring aggregate payments by the Company or any of its Subsidiaries with respect to such claim or proceeding in excess of $1,000,000unanimous resolution, (C) involving any admission by, or any finding against, the Company or any of its Subsidiaries of criminal wrongdoing, or (D) that restricts the conduct of business by the Company or any of its Subsidiaries;
(xix) approve or amend the Annual Budget, or any other material capital or operating budget determine additional actions of the Company or any of its Subsidiaries;
(xx) take any action that would reasonably be expected to cause the Annual Budget, or any capital budget require approval of the Company Board under this Section 5.7. Notwithstanding anything in this Section 5.7 to the contrary, unless otherwise provided by the Board by unanimous resolution, any actions or any of its Subsidiaries in excess of $5 million, then in effect to be exceeded expenditures specifically authorized in the aggregate by more than ten percent (10%), except for Emergency Expenditures and reimbursement or indemnity obligations to any Member, any Former Member, or any Affiliate of any Member or Former Member with respect to the cost of or any payment under or draw upon any Approved Credit Support or any Continuing Support Obligation;
(xxi) except to the extent reasonably contemplated in the Company’s most recent Annual Budget then in effect, or in any delegation of approval policy Plan approved by the Board shall be authorized for purposes of this Section 5.7 and then shall not be included for purposes of determining whether the applicable threshold amounts are satisfied in effect, enter into any contract under which expected revenues are expected to exceed $5,000,000 annually or $25,000,000 during the life subsection (d) of such contract;
(xxii) enter into any Hedge Contract;
(xxiii) make any material filing with any governmental authority, other than in the ordinary course of business;
(xxiv) issue any New Interests, other than pursuant to this Section 6.03(e), or enter into any agreement that provides for or contemplates the issuance of Membership Interests pursuant to transactions of the nature described in the proviso in the definition of “New Interests” in Section 1.01; and
(xxv) such other matters as the Board may determine from time to time by resolution in accordance with Section 8.04(a)5.7.
Appears in 1 contract
