Actions Requiring Member Consent. Notwithstanding any provision of this Agreement to the contrary, neither the Board nor any Manager, Officer or any other Person shall have the authority on behalf of the LLC to take any action set forth in this Section 5.4 (whether by merger, consolidation or otherwise) unless such action has received the express written consent of the Members holding at least sixty percent (60%) of the issued and outstanding Units held by all Members; provided, however, that those actions set forth in Subsections 5.4(b), (f) and (h) shall require the express written consent of the Members holding at least seventy-five percent (75%) of the issued and outstanding Units held by all Members:
(a) directly or indirectly redeem, purchase or otherwise acquire, or permit any of its Subsidiaries to redeem, purchase or otherwise acquire, any of the LLC’s or any Subsidiary’s equity securities (including warrants, options and other rights to acquire equity securities);
(b) authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise), or permit any of its Subsidiaries to authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise), of any equity securities (including profits interests) or debt securities of the LLC or any of its Subsidiaries with equity features or securities exercisable or convertible into equity securities (including profits interests) or debt securities with equity features;
(c) liquidate, dissolve or effect a recapitalization or reorganization of the LLC in any form of transaction, or permit any of the LLC’s Subsidiaries to do any of the foregoing;
(d) sell the LLC or any of its Subsidiaries, or cause the LLC or any Subsidiary to merge, convert into a corporation, consolidate or otherwise combine with or into any Person;
(e) sell, lease, exchange or otherwise dispose (including by license) of any material portion of the assets or properties of the LLC or its Subsidiaries;
(f) accept additional Capital Contributions to the LLC (or enter into any agreement regarding the issuance of additional Capital Contributions or membership interests in the LLC);
(g) declare distributions (other than required distributions) of the LLC;
(h) amend the LLC’s articles of organization or this Agreement;
(i) borrow capital, including without limitation from WFCF, as necessary for the LLC’s working capital needs to fund its business operations in the ordinary course.
Actions Requiring Member Consent. Notwithstanding any other provision of this Agreement, the Managing Members shall have no authority without the Consent of the Capital Members to (i) do any act that is in contravention of this Agreement or that is not consistent with the purposes of the Company, (ii) do any act that would make it impossible to carry on the ordinary business of the Company, (iii) guarantee obligations of Portfolio Companies, (iv) to provide bridge financing to any Portfolio Company, or (v) invest more than 25% of the aggregate Capital Commitments in the securities of any one issuer. Other than as set forth in this Section 4.3 or elsewhere in the Agreement, the Capital Members shall not participate in the management, operation or control of the Company.
Actions Requiring Member Consent. 11 Section 4.4 Payment of Fees and Expenses; Management Fee................................... 11 ARTICLE FIVE - OTHER ACTIVITIES OF MEMBERS; CONFLICTS OF INTEREST............................... 12 Section 5.1 Commitment of Members.......................................................... 12 Section 5.2 Agreements with Portfolio Companies............................................ 13 Section 5.3 Obligations and Opportunities for Members...................................... 13
Actions Requiring Member Consent. Anything in this Agreement to the contrary notwithstanding, the Company shall not, and the Managing Member shall cause the Company not to, take the following actions without the affirmative written approval of a Super Majority of Non-Managing Members in their sole discretion:
(i) engage in a merger, reorganization or similar business combination transaction between the Company and any Person (other than (A) a holding company reorganization effected by merger or otherwise, a reorganization to change the state of formation effected by merger or otherwise or a similar transaction that does not alter the beneficial ownership of the Units or (B) a merger or similar business combination transaction following which the beneficial owners of Units immediately prior to the effective time of such transaction continue to beneficially own no less than 66.67% of the Units or other equity interests in the resulting entity immediately following the effective time of such transaction) unless the Commission finds that the merger, conversion, reorganization or other transaction will not adversely impact the investment of members other than the Managing Member in the Company;
(ii) sell, lease, transfer, convey or otherwise dispose of (other than by merger or consolidation), in one or a series of related transactions, all or substantially all of the assets of the Company;
(iii) dissolve or liquidate the Company or take any action in respect thereof;
(iv) (A) make a general assignment for the benefit of creditors, (B) file a voluntary bankruptcy petition, (C) become the subject of an order for relief or be declared insolvent in any federal or state bankruptcy or insolvency proceedings, (D) file a petition or answer seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Law, (E) file an answer or other pleading admitting or failing to contest the material allegations of a petition filed in a proceeding of the type described in subclauses (A) through (D); or (F) seek, consent to, or acquiesce in the appointment of a trustee, receiver, or liquidator of all or any substantial part of its properties;
(v) except in connection with the Initial Public Offering as contemplated by Article VI of the Master Agreement, cause the Company to convert into any other form of Entity;
Actions Requiring Member Consent. Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of the Company’s Subsidiaries may take any of the following actions without prior (x) Board Consent and (y) Member Consent; provided that the actions set forth under Section 6.4(k) and Section 6.4(l) shall require Series A Supermajority Consent prior to the Series A Redemption Date:
(a) pursuant to Article XIII, entering into or approving a Merger Agreement (other than any such transaction that would not require approval of the acquiring company equityholders under the rules of the New York Stock Exchange if the Company were listed on the New York Stock Exchange, regardless of whether the Company is so listed) or Plan of Conversion;
(b) selling, exchanging or otherwise disposing of all or substantially all of the assets of the Company Group, taken as a whole, in (i) a single transaction or (ii) a series of related transactions to a single purchaser or a group of Affiliated purchasers; provided, however, that in each case this provision shall not preclude or limit the Board’s ability to mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the assets of the Company Group and shall not apply to any forced sale of any or all of the assets of the Company Group pursuant to the foreclosure of any such encumbrance;
(c) making any election for the Company to be classified other than as an association treated as a corporation for U.S. federal income tax or applicable state or local tax purposes;
(d) altering, supplementing, amending or otherwise modifying any term or provision of this Agreement (other than ministerial actions);
(e) amending, modifying or waiving any provision of the Exit Term Loan B Facility or any agreement, instrument or other document entered into in connection with the Exit Term Loan B Facility;
(f) making any Distributions to any Record Holder other than in cash;
(g) except pursuant to Section 5.1, repurchasing any issued and outstanding Units;
(h) issuing additional Units or other interests or options convertible into or exchangeable for Units, or any other equity interests in the Company;
(i) conducting any initial public offering of the equity securities of the Company;
(j) entering into any agreement, contract or other instrument with any Manager, Member or Affiliate of such Persons, other than any transaction entered into in the ordinary course of business on an arm’s-length basis with consideration of no more than $...
Actions Requiring Member Consent. Notwithstanding the generality of the Managers’ authority above in Section 7.7, the Managers are not empowered, without the consent of a Majority Interest (or such other consent of the Members as is expressly provided elsewhere in this Agreement to undertake any of the following) of Common Units, to:
7.8.1 Amend this Agreement or the Articles of Organization (subject to the requirements of the Florida Act);
7.8.2 Change the character of the business of the Company;
7.8.3 Sell all or substantially all of the assets of the Company;
7.8.4 Mortgage or encumber all or substantially all assets of the Company;
7.8.5 Commission any act in the operation of the business that would make it impossible for the Company to carry on its business, except in connection with one of the events or transactions described elsewhere in this Agreement;
7.8.6 Do any act in contravention of this Agreement;
7.8.7 Approve any transaction with a Member or any Affiliate of a Member other than in the ordinary course of business on terms no less favorable to the Company than those which would otherwise be available from an unaffiliated third party;
7.8.8 Make any individual expenditure greater than $250,000 or aggregate expenditures greater than $500,000 in any calendar year, which is not authorized by the Approved Budget;
7.8.9 Confess a judgment against the Company; or
7.8.10 Undertake any other act that is expressly provided to be approved by a Unanimous Consent, Super-Majority Interest, a Majority Interest, or other required consent of the Members hereunder.
Actions Requiring Member Consent. All rights and powers not specifically delegated to the Board of Managers in this Article IV shall be reserved to the
Actions Requiring Member Consent. Notwithstanding any other provision of this Agreement, a Member shall have no authority to do any of the following without the unanimous Consent of the Members:
(1) amend this Agreement;
(2) approve any Terminating Capital Transaction;
(3) enter into any material agreements or other arrangements with any of the Members or Affiliates of the Members, or otherwise amend any agreements or other arrangements with any of the Members or Affiliates of the Members or enter into any other agreement or consummate any other transaction the term of which is over six (6) months and the cost to the Company in excess of Fifty Thousand Dollars ($50,000), or modify any such agreement or transaction;
(4) reorganize the Company or merge or consolidate the Company with any other Person;
(5) request additional Capital Contributions from the Members;
(6) incur indebtedness in excess of Fifty Thousand Dollars ($50,000) in any one transaction or with respect to any one Person (including such Person’s Affiliate);
(7) lend money or release or discharge any debt owing to the Company in excess of Fifty Thousand Dollars ($50,000);
(8) form or acquire any subsidiaries, invest in the equity or debt securities of another entity or enter into any partnership, joint venture or any other similar arrangement with any other party, or dispose of any interest in any other entity on behalf of the Company;
(9) make any material change in accounting principles or procedures to be applied to the Company;
(10) enter into any legal proceeding on behalf of or in defense of the Company;
(11) approve the establishment and maintenance by the Members of any Reserves; or
(12) commence any proceedings or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency or similar law.
Actions Requiring Member Consent. Notwithstanding the provisions of Section 3.4, the Company shall not, and shall not permit any subsidiary to, without first having provided written notice of such proposed action to each holder of outstanding Units and having obtained the affirmative vote or written consent of a Majority Interest:
(a) authorize or issue, or obligate itself to issue, any equity securities or any convertible debt or other debt with any equity participation, any securities convertible into, or exercisable or exchangeable for, any equity securities ranking senior to the Units as to liquidation, sale or merger preferences, or redemption, dividend or voting rights;
(b) increase or decrease the number of Units authorized or designated hereunder;
(c) acquire or make any material investment in any other business or entity;
(d) incur indebtedness for borrowed money in excess of $100,000;
(e) effect any liquidation, dissolution or winding up of the Company and its subsidiaries, whether voluntary or involuntary;
(f) effect any sale, transfer, license or other disposition of any assets of the Company or any subsidiary to any third party, other than in the ordinary course of business, or effect any merger or consolidation with or into any other entity;
(g) solicit for, or approve the admission of, new Members, other than in connection with a Permitted Transfer;
(h) amend the Articles of Organization;
(i) enter into any agreement to do any of the foregoing that is not expressly made conditional on obtaining the affirmative vote or written consent of a Majority Interest; or
(j) pursuant to Section 5.6(b) below, enter into a Key Person Policy with a maximum annual cost in excess of $20,000.
Actions Requiring Member Consent. The Company shall not have the authority to (or to cause any of its Subsidiaries to), and shall not (and shall not cause any of its Subsidiaries to), and without limiting the generality of the foregoing, no Member, Officer or employee shall have the authority to (or to cause any of the Company’s Subsidiaries to), and no Member, Officer or employee shall, or shall cause the Company or any of its Subsidiaries to, take any of the following actions (such actions being herein collectively called the “Major Decisions”), except (x) as expressly contemplated by the applicable Budget and Business Plan, or (y) with the prior written consent of each of JG TopCo (subject to Sections 3.2, 6.1(a) (including in connection with a Competition Event) and 7.8, and provided, however, that with respect to a Sale Transaction contemplated by Section 7.5 and approved by HHC and/or any change in form contemplated by 7.2(b), such consent by JG TopCo with respect to any applicable Major Decision shall not be unreasonably withheld, delayed or conditioned) and HHC (each of the following clauses being in addition to, and not in limitation of, each other of the following clauses):
(a) cause a dissolution or wind up of the Company or any Subsidiary (other than dissolution or winding up of an immaterial Subsidiary in connection with the cessation of management services provided by such Subsidiary);
(b) change the name or purpose of the Company or any Subsidiary (other than a change in the name of a particular restaurant), other than as required by law, or change the registered office or registered agent of the Company or any Subsidiary;
(c) do (or cause the Company or any Subsidiary to do) any of the following, unless such action is not inconsistent with the currently approved Business Plan and Budget or such action is in the Ordinary Course:
(i) incur any Company or Subsidiary Indebtedness or commit to incur any such Indebtedness, whether on a secured or unsecured basis;
(ii) execute any documentation to incur any Company or Subsidiary Indebtedness, including any loan agreement, promissory note or mortgage or security deed, lien or encumbrance, which secures any Indebtedness (or any part thereof or any interest therein), or any guarantee by, or on behalf of, the Company or any Subsidiary;
(iii) modify, amend, prepay, increase, renew, extend or consolidate any Company or Subsidiary Indebtedness (or any loan document evidencing or securing any such Indebtedness) which, when obtained, was e...
