Additional Transfer Restrictions. (a) For so long as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interests, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco or in connection with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturing, developing, producing, marketing, licensing, selling or distributing motor vehicles (but not component parts) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-market. (b) Any Member proposing to make a Transfer of its Membership Interest pursuant to this Article IX and the proposed Transferee shall obtain (at its sole cost and expense, but with all reasonable cooperation from the Company) any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable. (c) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company or the Membership Interests to be Transferred, (ii) cause the Company to be required to register as an “investment company” under the 1940 Act, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company as a result of any requirement of Law that becomes or that may become applicable in connection with or as a result of such Transfer. (d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (e) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).
Appears in 1 contract
Additional Transfer Restrictions. (a) For so long as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interests, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco or in connection with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturing, developing, producing, marketing, licensing, selling or distributing motor vehicles (but not component parts) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-market.
(b) Any Member proposing to make a Transfer of its Membership Interest pursuant to this Article IX and the proposed Transferee shall obtain (at its sole cost and expense, but with all reasonable cooperation from the Company) any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable.
(c) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company or the Membership Interests to be Transferred, (ii) cause the Company to be required to register as an “investment company” under the 1940 Act, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company as a result of any requirement of Law that becomes or that may become applicable in connection with or as a result of such Transfer.
(d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes.
(e) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Gmac LLC)
Additional Transfer Restrictions. (a) For so long as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interests, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco or in connection with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturing, developing, producing, marketing, licensing, selling or distributing motor vehicles (but not component parts) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-market.
(b) Any Member proposing to make a Transfer of its Membership Interest pursuant to this Article IX and the proposed Transferee shall obtain (at its sole cost and expense, but with all reasonable cooperation from the Company) any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable.
(c) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company or the Membership Interests to be Transferred, (ii) cause the Company to be required to register as an “investment company” under the 1940 Act, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company as a result of any requirement of Law that becomes or that may become applicable in connection with or as a result of such Transfer.
(d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes.
(e) FIM hereby represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than seventy-four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer) and each of GM Preferred Holdco and GM Holdco represents and warrants to the other Members that, nor shall permit any as of its direct or indirect equityholders to Transferthe Effective Date, directly or indirectly, any Membership Interest if such Transfer would result in the Company having they collectively constitute not more than 100 twenty-five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or and GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy seventy-four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM iii)GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder Holdco and their respective Transferees (and their respective Transferees) collectively constituting more than twenty twenty-five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Gmac LLC)
Additional Transfer Restrictions. (a) For so long Notwithstanding any provision in this Agreement to the contrary, (i) no Shareholder shall transfer, sell, assign, distribute, encumber, or otherwise dispose of any Shares (A) to any third party in reliance on Section 2 hereof, if such third party. or any affiliate of such third party is engaged, directly or indirectly, whether as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interestsan owner or an employee, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco in a business that is similar to or in connection competition with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturingthe Company, developing(B) if such transfer is prohibited by or is an event which constitutes, producingor with the passage of time or notice or both would constitute, marketingan event of default under the Electra Securities Agreement, licensingthe Credit Agreement (as defined in the Electra Securities Agreement) or the Loan Agreement,. or any other loan agreement to which the Company may be a party from time to time, selling (C) unless the transferor provides, if required by the Company, an opinion of counsel satisfactory to the Company that such transfer is made in compliance with all applicable federal and state securities laws and regulations, and (D) unless the transferee and the Company (on behalf of itself and the other parties hereunto) execute and deliver a written instrument, in form and substance satisfactory to the Company, acknowledging the receipt of a copy of the provisions and restrictions contained in this Agreement and agreeing to comply herewith and he bound hereby, and (ii) without the consent of Electra, R. Xxxx XxXxxxx ("XxXxxxx") shall not sell any Shares in reliance on Sections 3 or distributing motor vehicles 5 of this Agreement until such time as the Company has paid the Notes (but not component partsas defined in the Electra Securities Agreement) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-marketfull.
(b) Any Member proposing transfer, sale, assignment, distribution, encumbrance or other disposition, or any attempt to make consummate the same, of any Shares in violation of any provision of this Agreement shall be void (a Transfer of its Membership Interest pursuant to this Article IX "Voided Transfer"), and the proposed Transferee Company shall obtain (at not record any such Voided Transfer on its sole cost and expense, but with all reasonable cooperation from the Company) books or treat any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable.
(c) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company or the Membership Interests to be Transferred, (ii) cause the Company to be required to register as an “investment company” under the 1940 Act, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company as a result of any requirement of Law that becomes or that may become applicable in connection with or as a result holder of such Transfer.
(d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither Shares as the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result owner of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership Shares for United States federal tax purposesany purpose.
(e) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).
Appears in 1 contract
Samples: Shareholders Agreement (Decrane Aircraft Holdings Inc)
Additional Transfer Restrictions. (a) For so long as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interests, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco or in connection with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturing, developing, producing, marketing, licensing, selling or distributing motor vehicles (but not component parts) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-market.
(b) Any Member proposing to make a Transfer of its Membership Interest pursuant to this Article IX and the proposed Transferee shall obtain (at its sole cost and expense, but with all reasonable cooperation from the CompanyLLP) any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable.
(cb) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made (i) if such Transfer would subject the LLP to the reporting requirements of the Exchange Act, if it is not already subject to such reporting requirements and (ii) unless in the opinion of counsel (who may be counsel for the CompanyLLP), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (Managing Member, which opinion requirement may be waived, in whole or in part, at the discretion of the Board Managing Member, such Transfer would not violate any federal securities Laws or, if such opinion is requested by the Managing Member, any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the LLP or the Membership Interests to be Transferred.
(c) Notwithstanding any other provisions of Managers)this Article IX, unless otherwise waived, in whole or in part, at the discretion of the Managing Member, no Transfer of Membership Interests subject to this Article IX may be made unless such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company LLP or the Membership Interests to be Transferred, Transferred and (ii) cause to the Company to be required to register as an “investment company” under the 1940 Acttransferor’s and transferee’s knowledge, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company LLP as a result of any requirement of applicable Law that becomes or that may become applicable in connection with or as a result of such Transfer.
(d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes.
(e) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).
Appears in 1 contract
Samples: Limited Liability Partnership Agreement (Delphi Trade Management, LLC)
Additional Transfer Restrictions. (a) For so long as GM Holdco and its Affiliates collectively hold at least twenty percent (20%) of the Common Membership Interests, no Member (other than GM Holdco and its Affiliates) may Transfer, without the prior written consent of GM Holdco or in connection with a Transfer pursuant to Section 9.2(f), any of its Membership Interests to any Person, or to any Affiliate of any Person, that is engaged in the business of manufacturing, developing, producing, marketing, licensing, selling or distributing motor vehicles (but not component parts) in competition with GM and its Subsidiaries in any material market or sub-market or such business constitutes a material portion of its business or the applicable industry taken as a whole in such market or sub-market.
(b) Any Member proposing to make a Transfer of its Membership Interest pursuant to this Article IX and the proposed Transferee shall obtain (at its sole cost and expense, but with all reasonable cooperation from the Company) any waivers, consents or approvals from any third Person (including any Governmental Entity) that may be necessary in connection with the proposed Transfer and the admission of the proposed Transferee as a Substitute Member, if applicable.
(c) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not (i) violate any federal securities Laws or any state securities or “blue sky” Laws (including any investor suitability standards) applicable to the Company or the Membership Interests to be Transferred, (ii) cause the Company to be required to register as an “investment company” under the 1940 Act, (iii) cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes or (iv) have a material and adverse effect on the Company as a result of any requirement of Law that becomes or that may become applicable in connection with or as a result of such Transfer.
(d) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company (with the written approval of the Joint Majority Holders) in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes.
(e) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, 84 the Treasury Preferred Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii).,
Appears in 1 contract
