Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company. (b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder. (c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. (d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement. (e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing: (i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries. (ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property. (f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company. (g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities. (h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise. (i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner. (j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities. (k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed. (l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 4 contracts
Samples: Limited Liability Company Agreement (Kimbell Tiger Acquisition Corp), Limited Liability Company Agreement (Kimbell Tiger Acquisition Corp), Limited Liability Company Agreement (Kimbell Tiger Acquisition Corp)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 3.1(e) or Section 3.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as the Managing Member shall determine necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of excess cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 4 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement (Cactus, Inc.), Limited Liability Company Operating Agreement (Cactus, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 4.6(a)(iii). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a such member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)anticipates, PubCo and the Managing Member may, in its their sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as and the Managing Member) Member in Good Faith determines determine to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6 and the other provisions hereof.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Brigham Minerals, Inc.), Limited Liability Company Agreement (Brigham Minerals, Inc.), Limited Liability Company Agreement (Brigham Minerals, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3; solely to the extent they are in the aggregate substantially equivalent to a class of common stock of PubCo or class or series of preferred stock of PubCo, respectively; provided that, notwithstanding anything to the contrary in this Agreement, as long as there are any Members of the Company (other than PubCo or any PubCo Subsidiary), then no such new class or series of Units or Equity Securities may deprive such Members of, or dilute or reduce, the pro rata share of all Interests they would have received or to which they would have been entitled if such new class or series of Units or Equity Securities had not been created except to the extent (and solely to the extent) the Company actually receives cash in an aggregate amount, or other property with a Fair Market Value in an aggregate amount, equal to the pro rata share allocated to such new class or series of Units or Equity Securities and the number thereof issued by the Company. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of Immediately after giving effect to the date hereof are set forth on Exhibit B. The transactions contemplated by the Burro Merger Agreement and the Frontier Mergers, the total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A, which Exhibit A may be amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Subsequent Effective Time, PubCo issues or disposes from treasury a Class A Share share of its Common Stock (including pursuant to Section 4.6(b)(iii)) or any other Equity Security of PubCo (other than Class B Sharesshares of Preferred Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(sPubCo (or a PubCo Subsidiary) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues or disposes from treasury a Class A Shareshare of Common Stock), or such other Equity Security of the Company (if PubCo issues or disposes from treasury Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued or disposed from treasury by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued or disposed from treasury and (ii) PubCo shall concurrently contribute (directly or indirectly through a PubCo Subsidiary) to the foregoing:
Company (iincluding pursuant to Section 4.6(b)(iii)) If the net proceeds or other property received by PubCo (if any) for such share of Common Stock or other Equity Security; provided, however, that if PubCo issues or disposes from treasury any Class A Shares shares of Common Stock in order to acquire or fund the acquisition by PubCo from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and Class B Sharescorresponding shares of Preferred Stock) equal to the number of Class A Shares shares of Common Stock so issuedissued or disposed of from treasury, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares shares of Common Stock have been issued or disposed of from treasury for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares shares of Common Stock and Preferred Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption or transfer of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
. In addition, for the avoidance of doubt, if PubCo issues any Common Stock or other Equity Security for cash proceeds to fund or effect the direct or indirect acquisition by PubCo or a PubCo Subsidiary of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead PubCo shall contribute (for cause to be contributed) such Person or the material assets and liabilities of such Person to the Company or any of its Subsidiaries. Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group Subsidiary unless substantially simultaneously therewith PubCo or a member of the PubCo Holdings Group Subsidiary issues or transfers disposes from its treasury an equal number of newly-issued Class A Shares shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group Subsidiary unless substantially simultaneously PubCo or a member of the PubCo Holdings Group Subsidiary issues or transfers, to another Person (other than another member of the PubCo Holdings Group)disposes from its treasury, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with to another Person, which Equity Securities have substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group Subsidiaries issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the or a PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group or a PubCo Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares shares of Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company Company, if any, shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the Neither PubCo Holdings Group nor any PubCo Subsidiaries may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares shares of Common Stock (including upon forfeiture of any unvested Class A Sharesshares of Common Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or a PubCo Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Sharesthe acquisition of Preferred Stock in connection with the redemption, repurchase or other acquisition of Units), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or a PubCo Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any PubCo Subsidiary unless substantially simultaneously the PubCo Holdings Group or a PubCo Subsidiary redeems, repurchases or otherwise acquires an equal number of Class A Shares shares of Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any PubCo Subsidiary unless substantially simultaneously the PubCo Holdings Group or a PubCo Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares shares of Common Stock or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares shares of Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner. Notwithstanding the foregoing, the Company may redeem Units from PubCo or a PubCo Subsidiary (x) for cash to fund any direct or indirect acquisition by PubCo or a PubCo Subsidiary of another Person or (y) for all or a portion of the stock or other equity interests of a Subsidiary of the Company; provided that, promptly after such redemption (and acquisition, if applicable), PubCo or such PubCo Subsidiary contributes or causes to be contributed, directly or indirectly, such acquired Person or former Subsidiary of the Company, or the material assets and liabilities of such acquired Person or former Subsidiary of the Company, to the Company or any of its Subsidiaries in exchange for a number of Units equal to the number of Units so redeemed.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock and Preferred Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (Common Stock or other Equity Securities of PubCo) Preferred Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e) and (g)), the Company may redeem Class A Units from the PubCo Holdings Group for cash but subject to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)4.1(a), if the PubCo Holdings Group acquires or holds any a material amount of cash in excess of any the amount that will enable PubCo to meet its U.S. federal, state and local and non-U.S. tax or other reasonably anticipated monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)obligations, PubCo may, in its sole discretion, use (i) contribute such excess cash amount to the Company in exchange for a number of Units (but only to the extent the Company actually receives cash therefor in an aggregate amount, or other property therefor with a Fair Market Value in an aggregate amount, or a combination thereof, equal to at least the Fair Market Value of such mannerUnits), and make distribute to the holders of Common Stock shares of Common Stock that correspond economically to such adjustments to Units, or (ii) take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and shares of Common Stock, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo shareholders and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6 and the other provisions hereof.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Kodiak Gas Services, Inc.), Merger Agreement (CSI Compressco LP), Merger Agreement (CSI Compressco LP)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B V Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B V Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B V Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Beard Energy Transition Acquisition Corp.), Limited Liability Company Agreement (Beard Energy Transition Acquisition Corp.), Limited Liability Company Agreement (Beard Energy Transition Acquisition Corp.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 3.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo SEI issues a share of its Class A Share Stock (subsequent to the IPO) or any other Equity Security of PubCo SEI (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), SEI one Class A Unit (if PubCo SEI issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo SEI issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCoSEI, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo SEI and (ii) the net proceeds received by SEI with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if SEI issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group and SEI shall not be required to transfer such any net proceeds of such issuance to the Company, and Company (it being understood that any such net proceeds shall instead be transferred by such member of to the PubCo Holdings Group to such selling Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares shares of SEI Common Stock of rights to purchase Equity Securities of PubCo SEI under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCoSEI’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo SEI or rights or property that may be converted into or settled in Equity Securities of PubCoSEI, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo SEI in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.7, (x) the Company may not issue any additional Class A Units to SEI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group SEI or such Subsidiary issues or transfers sells an equal number of newly-issued shares of SEI’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to SEI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group SEI or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo SEI or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at SEI or any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group SEI an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), SEI unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group SEI an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo SEI for the same price per security. The Except pursuant to Section 3.7, the Company may not redeem, repurchase or otherwise acquire (xA) any Class A Units from the PubCo Holdings Group SEI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SEI or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group SEI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SEI or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo SEI of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoSEI. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group SEI in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo SEI or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)SEI Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo SEI shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) SEI Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Spark Energy, Inc.), Transaction Agreement Ii (Spark Energy, Inc.), Limited Liability Company Agreement (Spark Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material receives Tax Distributions in an amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the amount that will enable PubCo Taxto meet its U.S. federal, state and local and non-Related Liabilities for such period)U.S. tax obligations and its obligations under the Tax Receivable Agreements or holds any other excess cash amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (Liberty Oilfield Services Inc.), Limited Liability Company Operating Agreement (Liberty Oilfield Services Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Class A Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company; provided, that any such issuance, and the admission of any Person as a Member in connection therewith, is otherwise made in accordance with the provisions of this Agreement.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificatesuncertificated. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as the Managing Member shall determine necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(b) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(dc) The Members as of the date hereof are set forth on Exhibit B. The total number and type of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(ed) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo, if any, for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A B Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e4.1(d) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, stock appreciation right, restricted stock, restricted stock units, performance based award or other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options options, stock appreciation right, restricted stock, restricted stock units, performance based award or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Class A Shares of PubCo Common Stock to another Person (other than another member of and contributes the PubCo Holdings Group)net proceeds therefrom to the Company, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company and contributes the net proceeds therefrom to the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary, as applicable, in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (ai) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e4.1(d), and (bii) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ie) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption Redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrantwarrant other than those issued under PubCo’s employee benefit plans), then the redemption Redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Golden Nugget Online Gaming, Inc.), Purchase Agreement (Landcadia Holdings II, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Interests in the Company shall be represented by Units, or such other Equity Securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member Manager shall determine in accordance with Section 4.43.4. Each authorized Unit may be issued pursuant to such agreements and in exchange for such Capital Contributions or other consideration as the Managing Member Manager shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class . Exhibit A Units” sets forth the Members and “Class B Units.” The the number and class of Units issued to held by each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderof them at the Effective Time.
(cb) Initially, none of the Units will be represented by certificates. If the Managing Member Manager determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(b) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(dc) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article VIII shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If. At the Effective Time, at any time Exhibit A shall constitute the Unit Register. From and after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute subject to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision provisions of this Agreement (including Section 4.1(e)3.1(c), the Company may redeem Class A Units from maintain the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount Unit Register in such mannerform as the Manager shall determine from time to time, and make such adjustments to or take such other actions with respect to any changes in the capitalization of PubCo and information set forth in the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Unit Register shall not require any amendment or other Equity Securities of PubCo and change to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.Exhibit A.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Stagwell Inc), Transaction Agreement (MDC Partners Inc)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units for purposes of the Uniform Commercial Codeexcept as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Pubco Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.7, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Rice Acquisition Corp. II), Limited Liability Company Agreement (Rice Acquisition Corp. II)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timefinal delivery of Class A Shares by PubCo in the Business Combination, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(d). For the avoidance of doubt, if If PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then the PubCo Holdings Group shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
, which shall be undertaken so as to comply with the provisions of Treasury Regulations Section 1.1032-3 and deemed to occur for U.S. federal (fand applicable state and local) income tax purposes as provided therein. Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued PubCo’s Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant)Securities, then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, ; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, and the Managing Member may use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo, PubCo Sub and the Company and to the one-to-one exchange ratio between Units and Class A Shares, as PubCo and the Company, as PubCo (including in its capacity as the Managing Member) Member in Good Faith determines determine to be fair and reasonable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (EVgo Inc), Business Combination Agreement (Climate Change Crisis Real Impact I Acquisition Corp)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as the Members immediately following the consummation of the date hereof transactions contemplated by the Merger Agreement, the Rule 144A Offering, and the other transactions set forth in Section 3.1 is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A hereto (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement).
(e) If, If at any time after the SESI Effective Time, PubCo Time SESI issues a share of its Class A Share Common Stock, Class A-1 Common Stock (including PIK Class A-1 Common Stock), or any other Equity Security of PubCo SESI (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), SESI one Class A Unit (if PubCo SESI issues a share of Class A ShareCommon Stock or Class A-1 Common Stock, including PIK Class A-1 Common Stock), or such other Equity Security of the Company (if PubCo SESI issues Equity Securities other than Class A SharesCommon Stock or Class A-1 Common Stock) corresponding to the Equity Securities issued by PubCoSESI, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo SESI to be issued. Notwithstanding issued and (ii) except in the foregoing:
case of an issuance of PIK Class A-1 Common Stock (i) If PubCo it being understood that such PIK Class A-1 Common Stock will be issued for no additional consideration to SESI), SESI shall concurrently contribute to the Company the net proceeds received by SESI for such share of Class A Common Stock, Class A-1 Common Stock or other Equity Security; provided, however, that if SESI issues any shares of Class A Shares Common Stock or Class A-1 Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock or Class A-1 Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group SESI shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to (i) the issuance and distribution to holders of PubCo Shares shares of SESI Common Stock of rights to purchase Equity Securities of PubCo SESI under a “poison pill” or similar shareholders rights plan (and upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCoSESI’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo SESI or rights or property that may be converted into or settled in Equity Securities of PubCoSESI, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo SESI in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
property or (fii) the issuance and distribution of shares of Class A Common Stock in connection with the Class A-1 Conversion. Except pursuant to Section 4.6 or Section 4.7, (x) the Company may not issue any additional Class A Units to SESI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group SESI or such Subsidiary issues or transfers sells an equal number of newly-issued shares of SESI’s Class A Shares of PubCo Common Stock or Class A-1 Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to SESI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group SESI or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo SESI or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group SESI issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group SESI shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group SESI in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo SESI is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock, Class A-1 Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo SESI are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group SESI as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member SESI or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock or Class A-1 Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock or Class A-1 Common Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group SESI or such Subsidiary an equal number of Class A Units for the same price per security (other than a redemption, repurchase or other acquisition of shares of Class A-1 Common Stock in connection with the Class A-1 Conversion) or (bii) any other Equity Securities of PubCo (other than Class B Shares)SESI, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group SESI an equal number of Equity Securities of the Company SESI of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo SESI for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6 or Section 4.7, any Class A Units from the PubCo Holdings Group SESI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SESI or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock or Class A-1 Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group SESI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SESI or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo SESI of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoSESI. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group SESI in connection with the redemption or repurchase of any shares of Class A Shares Common Stock, Class A-1 Common Stock, or other Equity Securities of PubCo SESI or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock, Class A-1 Common Stock, or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner; provided, for the avoidance of doubt, that no redemption of Units shall occur in connection with the redemption, repurchase or other acquisition of shares of Class A-1 Common Stock in connection with the Class A-1 Conversion.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)SESI Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo SESI shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) SESI Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Select Energy Services, Inc.), Limited Liability Company Agreement (Select Energy Services, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Common Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company; provided, that any such issuance, and the admission of any Person as a Member in connection therewith, is otherwise made in accordance with the provisions of this Agreement.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificatesuncertificated. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as the Managing Member shall determine necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number and type of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo, if any, for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Common Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Common Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, stock appreciation right, restricted stock, restricted stock units, performance based award or other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options options, stock appreciation right, restricted stock, restricted stock units, performance based award or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Class A Shares of PubCo Common Stock to another Person (other than another member of and contributes the PubCo Holdings Group)net proceeds therefrom to the Company, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company and contributes the net proceeds therefrom to the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary, as applicable, in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (ai) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (bii) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Common Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Common Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrantwarrant other than those issued under PubCo’s employee benefit plans), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Common Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Common Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Boxwood Merger Corp.), Unit Purchase Agreement (Boxwood Merger Corp.)
Authorized Units; General Provisions With Respect to Units. (a) a. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. b. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) c. Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. d. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit B (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, e. If at any time after the Effective Time, PubCo issues a share of its Class A Share Stock or any other Equity Security of PubCo (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding , and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo for such share of Class A Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Manager Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In f. PubCo or any of its Subsidiaries, other than the event any PubCo Warrant or other exercisableCompany, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (xA) except pursuant to Section 4.7, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) g. The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Earthstone Energy Inc), Contribution Agreement (Earthstone Energy Inc)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material receives Tax Distributions in an amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the amount that will enable PubCo Taxto meet its U.S. federal, state and local and non-Related Liabilities for such period)U.S. tax obligations and its obligations under the Tax Receivable Agreements or holds any other excess cash amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Solaris Oilfield Infrastructure, Inc.), Limited Liability Company Agreement (Solaris Oilfield Infrastructure, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities (but not Series A Preferred Units) that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be have identical except as otherwise provided hereunderrights and privileges in all respects and each outstanding Series A Preferred Unit shall have identical rights and privileges in all respects.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of InterestsInterests in accordance with this Agreement, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B V Shares), other than in connection with an Exchange Transaction, (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings GroupPubCo, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Common Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
, which shall be undertaken so as to comply with the provisions of Treasury Regulations Section 1.1032-3 and deemed to occur for U.S. federal (fand applicable state and local) Except pursuant income tax purposes as provided therein. The Company may not issue any additional Common Units to Section 4.7PubCo unless substantially simultaneously therewith PubCo issues or sells an equal number of newly issued Class A Shares to another Person, (x) the Company may not issue any additional Class Series A Preferred Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued Class Series A Preferred Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Common Units for the same price per security security, (ii) any Series A Preferred Shares unless simultaneously the Company redeems, repurchases or otherwise acquires from PubCo an equal number of Series A Preferred Units for the same price per security, or (biii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Common Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, (y) any Series A Preferred Units from PubCo unless substantially simultaneously PubCo redeems, repurchases or otherwise acquires an equal number of Series A Preferred Shares for the same price per security from holders thereof, or (yz) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant)Securities, then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) (i) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securitiessecurities or (ii) of the Series A Preferred Units that is not accompanied by an identical subdivision or combination of Series A Preferred Shares to maintain at all times the One-to-One Ratio, unless such action is necessary to maintain at all times a one-to-one ratio between the number of Series A Preferred Units owned by PubCo, directly or indirectly, and the number of outstanding of Series A Preferred Shares, as contemplated by the first sentence of Section 3.3(c). Unless in connection with any action taken pursuant to Section 4.1(l3.1(j), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Common Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) PubCo shall at all times keep available, solely for the purpose of Exchange Transactions and any Series A Preferred Conversions, out of its authorized but unissued Class A Shares, such number of Class A Shares that shall be issuable upon the exchange pursuant to an Exchange Transaction of all outstanding Common Units (other than those Common Units held by PubCo) and upon all Series A Preferred Conversions. PubCo covenants that all Class A Shares that shall be issued in an Exchange Transaction or the Series A Preferred Conversions shall, upon issuance thereof, be validly issued, fully paid and non-assessable. In addition, for so long as the Class A Shares are listed on a National Securities Exchange, PubCo shall use its reasonable best efforts to cause all Class A Shares issued in an Exchange Transaction or in a Series A Preferred Conversion to be listed on such National Securities Exchange at the time of such issuance.
(i) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, ; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lj) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, and the Managing Member may use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Common Units and Class A Shares, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable equitable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 3.1 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Hagerty, Inc.), Limited Liability Company Agreement (Hagerty, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 3.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares shares of Pubco Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.7, (x) the Company may not issue any additional Class A Units to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transfers sells an equal number of newly-issued shares of the Managing Member’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the The Managing Member in or any of its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), the Managing Member unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member for the same price per security. The Except pursuant to Section 3.7, the Company may not redeem, repurchase or otherwise acquire (xA) any Class A Units from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo the Managing Member of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCothe Managing Member. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group Managing Member in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo the Managing Member or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Pubco Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo The Managing Member shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Pubco Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Parsley Energy, Inc.), Limited Liability Company Agreement (Parsley Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as the Managing Member shall determine necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit B (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material receives Tax Distributions in an amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the amount that will enable PubCo Taxto meet its U.S. federal, state and local and non-Related Liabilities for such period)U.S. tax obligations and its obligations under the Tax Receivable Agreement or holds any other excess cash amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Ranger Energy Services, Inc.), Limited Liability Company Agreement (Ranger Energy Services, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Class X Units or other Equity Securities that have been repurchased or acquired by the Company. The Company shall not, and the Managing Member shall not cause the Company to, issue any Units if such issuance would result in the Company having more than 100 partners, within the meaning of Treasury Regulations Section 1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)); provided that, for such purposes, the Company and the Managing Member shall be entitled to assume that each Legacy Owner is treated as a single partner within the meaning of Treasury Regulations Section 1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)), unless otherwise required by applicable Law.
(b) The Class X Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each and held solely by the Managing Member or other members of the PubCo Holdings Group and are hereby designated as voting units with the rights to vote in accordance with Section 4.2. The Class EX Units shall be set forth opposite such Member’s name on Exhibit A. Each Units issued to and held by the Members other than the PubCo Holdings Group and are hereby designated as voting units with the rights to vote in accordance with Section 4.2. The Class EX Units shall, if subject to a Redemption, be redeemed and canceled, together with the corresponding number of shares of Class C Common Stock, for shares of Class A Common Stock in accordance with Section 4.6. Except to the extent explicitly provided otherwise herein (including Section 4.3), each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units and Warrants issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and Securities, the Redemption of Class EX Units, and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a share of Class A Share Common Stock or any other Equity Security of PubCo (other than Class B SharesC Common Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such share of Class A Share Common Stock or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A X Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than shares of Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A EX Units (and Class B SharesC Common Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A X Units (except upon reclassification of such Class EX Units so acquired) in connection therewith and, where such share of Class A Shares have Common Stock has been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the members of the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any shares of Class A Shares Common Stock or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer contribute such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute the equity interests in such Person or the assets acquired and liabilities of assumed from such Person, or cause such Person to contribute its assets and liabilities, to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to (x) the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class EX Units for shares of Class A Units for Common Stock in accordance with Section 4.6, such shares of Class A Shares, including pursuant to the Call Right, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or (y) to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases of clauses (x) and (y) apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A X Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a such member of the PubCo Holdings Group issues or transfers an equal number of newly-issued shares of Class A Shares Common Stock of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a therewith such member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A X Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exerciseexercise or conversion.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A X Units for the same price per security or (b) any other Equity Securities of PubCo (other than shares of Class B SharesC Common Stock), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A X Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A X Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A X Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A X Units equal to the number of Class A X Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and as Holdings, in its capacity as the Managing Member, determines in Good Faith to be fair and reasonable to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Spartan Acquisition Corp. II), Business Combination Agreement (Spartan Acquisition Corp. II)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3; solely to the extent they are in the aggregate substantially equivalent to a class of common stock of PubCo or class or series of preferred stock of PubCo, respectively; provided that, notwithstanding anything to the contrary in this Agreement, as long as there are any Members of the Company (other than PubCo), then no such new class or series of Units or Equity Securities may deprive such Members of, or dilute or reduce, the pro rata share of all Interests they would have received or to which they would have been entitled if such new class or series of Units or Equity Securities had not been created except to the extent (and solely to the extent) the Company actually receives cash in an aggregate amount, or other property with a Fair Market Value in an aggregate amount, equal to the pro rata share allocated to such new class or series of Units or Equity Securities and the number thereof issued by the Company. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Aris Water Solutions, Inc.), Limited Liability Company Agreement (Aris Water Solutions, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number up to an aggregate of 400,000,000 Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to Vesting Agreements, options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 3.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be concurrently transferred to the Company; provided, however, that if the Managing Member issues any shares of Class A Stock (including in the IPO) or other Equity Securities some or all of the net proceeds of which are to be issued. Notwithstanding used to fund expenses or other obligations of the foregoing:
Managing Member for which the Managing Member would be permitted a cash distribution pursuant to clause (iii) If PubCo of Section 5.1(c), then the Managing Member shall not be required to transfer such net proceeds to the Company which are used or will be used to fund such expenses or obligations; provided, further, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply (A) to the issuance and distribution to holders of PubCo Shares shares of Pubco Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
property and (fB) as otherwise determined by the Managing Member in accordance with Section 3.1(h) with respect to issuances of Equity Security other than Class A Stock. Except pursuant to Section 4.73.7 or as otherwise determined by the Managing Member in accordance with Section 3.1(h), (x) the Company may not issue any additional Class A Units to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transfers sells an equal number of newly-issued shares of the Managing Member’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be Except as otherwise determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company accordance with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e3.1(h), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member the Managing Member or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member any shares of the PubCo Holdings Group) (a) any Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock or the acquisition of any such shares deposited in escrow) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Class A Units for the same price per security and (ii) the Managing Member or (b) any of its Subsidiaries may not redeem or repurchase any other Equity Securities of PubCo (other than Class B Shares), the Managing Member unless substantially simultaneously the Company redeems, redeems or repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member for the same price per security. The Except pursuant to Section 3.7 or as otherwise determined by the Managing Member in accordance with Section 3.1(h): (A) the Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, and (B) the Company may not redeem, repurchase or (y) otherwise acquire any other Equity Securities of the Company from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo the Managing Member of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCothe Managing Member. Notwithstanding the foregoing, to the extent that any consideration payable by to the PubCo Holdings Group Managing Member in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo the Managing Member or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Pubco Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo The Managing Member shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Pubco Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding anything to the contrary in Section 3.1(e) or Section 3.1(f):
(i) if at any other provision time the Managing Member shall determine that either of this Agreement (including Section 4.1(e)), the Credit Facilities shall not permit the Managing Member or the Company may redeem to comply with the provisions of Section 3.1(e) or Section 3.1(f) in connection with the issuance, redemption or repurchase of any shares of Class A Units from Stock or other Equity Securities of the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company Managing Member or any of its Subsidiaries in exchange for a number of Class A or any Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo the Company then, with the prior written consent of the H&F Continuing Members (not to be unreasonably withheld), the Managing Member may in good faith implement an economically equivalent alternative arrangement without complying with such provisions; and
(ii) if (a) the Managing Member incurs any indebtedness and desires to transfer the proceeds of such indebtedness to the Company, and (b) the Managing Member is unable to lend the proceeds of such indebtedness to the Company on an equivalent basis because of restrictions in either of the Credit Facilities, then notwithstanding Section 3.1(e) or Section 3.1(f), with the prior written consent of the H&F Continuing Members and (not to preserve be unreasonably withheld), the intended economic effect Managing Member may in good faith implement an economically equivalent alternative arrangement in connection with the transfer of this Section 4.1, Section 4.7 and proceeds to the other provisions hereofCompany using preferred Equity Securities of the Company without complying with such provisions.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Emdeon Inc.), Limited Liability Company Agreement (Emdeon Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units Except to the extent explicitly provided otherwise herein (including Section 3.3 and Section 10.2(b)(iii)), each outstanding Common Unit shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to identical, each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Preferred Unit shall be identical except as otherwise provided hereunderand each outstanding Warrant Unit shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(ei) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Common Share, a Preferred Share or any other Equity Security of PubCo (other than Class B Voting Shares), (i) ), one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Common Share, Preferred Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), if any, one Class A Common Unit (if PubCo issues a Class A Common Share), one Warrant Unit (if PubCo issues a warrant under a Warrant Agreement, with one Warrant Unit issued for each Common Share issuable pursuant to the terms of such warrant), one Preferred Unit (if PubCo issues a Preferred Share) or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Shares or Preferred Shares or a warrant pursuant to a Warrant Agreement) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Common Shares or Preferred Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and Class B Voting Shares) equal to the number of Class A Common Shares or Preferred Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Common Shares or Preferred Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(d). For the avoidance of doubt, if If PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then the PubCo Holdings Group shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Common Units for Class A Common Shares, including pursuant to the Call Right, such Class A Common Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) If, at any time after the date hereof, the Company issues an Equity Security of the Company to a Member other than a member of the PubCo Holdings Group, PubCo shall concurrently issue to such Member one Voting Share.
(iv) Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued Class A Common Shares of PubCo or Preferred Shares to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(gv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for For the avoidance of doubt, in connection (1) each outstanding Preferred Unit shall automatically convert into a Common Unit concurrently with the cashless Preferred Share Conversion and (2) each outstanding Warrant Unit shall automatically convert into a Common Unit concurrently with the exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A warrant for Common Shares under the terms of the applicable Warrant Agreement; provided that, if the Preferred Units or other Equity Securities Warrant Units are certificated, each holder of Preferred Units or Warrant Units shall instead surrender all of its Preferred Units or Warrant Units to the Company and the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect issue to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange holder a certificate for a number of Class A Common Units equal to the number of Class A Preferred Units so redeemedor Warrant Units surrendered.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stronghold Digital Mining, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Class X Units or other Equity Securities that have been repurchased or acquired by the Company. The Company shall not, and the Managing Member shall not cause the Company to, issue any Units if such issuance would result in the Company having more than 100 partners, within the meaning of Treasury Regulations Section 1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)); provided that, for such purposes, the Company and the Managing Member shall be entitled to assume that each Legacy Owner is treated as a single partner within the meaning of Treasury Regulations Section 1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section 1.7704-1(h)(3)), unless otherwise required by applicable Law.
(b) The Class X Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each and held solely by the Managing Member or other members of the PubCo Holdings Group and are hereby designated as voting units with the rights to vote in accordance with Section 4.2. The Class EX Units shall be set forth opposite such Member’s name on Exhibit A. Each Units issued to and held by the Members other than the PubCo Holdings Group and are hereby designated as voting units with the rights to vote in accordance with Section 4.2. The Class EX Units shall, if subject to a Redemption, be redeemed and canceled, together with the corresponding number of shares of Class C Common Stock, for shares of Class A Common Stock in accordance with Section 4.6. Except to the extent explicitly provided otherwise herein (including Section 4.3), each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units and Warrants issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and Securities, the Redemption of Class EX Units, and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a share(s) of Class A Share Common Stock (including, without limitation, the issuance of shares of Class A Common Stock upon the exercise of any of the PubCo Warrants or other securities convertible or exchangeable for shares of Class A Common Stock) or any other Equity Security of PubCo (other than Class B SharesC Common Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such share of Class A Share Common Stock or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class X Unit for each share of Class A Unit Common Stock so issued (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than shares of Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A EX Units (and Class B SharesC Common Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A X Units (except upon reclassification of such Class EX Units so acquired) in connection therewith and, where such share of Class A Shares have Common Stock has been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the members of the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any shares of Class A Shares Common Stock or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer contribute such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute the equity interests in such Person or the assets acquired and liabilities of assumed from such Person, or cause such Person to contribute its assets and liabilities, to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to (x) the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class EX Units for shares of Class A Units for Common Stock in accordance with Section 4.6, such shares of Class A Shares, including pursuant to the Call Right, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or (y) to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases of clauses (x) and (y) apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A X Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a such member of the PubCo Holdings Group issues or transfers an equal number of newly-issued shares of Class A Shares Common Stock of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a therewith such member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) then the corresponding Company Warrant or other Equity Security outstanding at the Company Company, if any, shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A X Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exerciseexercise or conversion.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) )
(a) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A X Units for the same price per security or (b) any other Equity Securities of PubCo (other than shares of Class B SharesC Common Stock), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A X Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A X Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A X Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A X Units equal to the number of Class A X Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and as Holdings, in its capacity as the Managing Member, determines in Good Faith to be fair and reasonable to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Sunlight Financial Holdings Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a such member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (OneWater Marine Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 4.3).
(c) InitiallyPrior to the date hereof, none of the Units have been represented by certificates. From and after the date hereof, the Units will not be represented by certificatescertificates except as provided below in this Section 4.1(c). The Escrow Units, upon issuance thereof pursuant to the Contribution Agreement and until such time as they are disbursed from escrow in accordance with the terms of the Escrow Agreement, shall be represented by certificates substantially in the form of Exhibit A to this Agreement (each, an “Escrow Unit Certificate”). Each Escrow Unit Certificate shall be signed by any duly appointed Officer, and any such Officer’s signature on an Escrow Unit Certificate may be a facsimile signature. Upon the disbursement of any Escrow Units from escrow in accordance with the Escrow Agreement, such Escrow Units thereafter shall no longer be represented by Escrow Unit Certificates, and, to the extent such Escrow Units remain outstanding following such disbursement, such Escrow Units shall be registered and held in the same manner as other Units then outstanding. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units (other than the Escrow Units), certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article IX shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transfers sells an equal number of newly-issued shares of the Managing Member’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the The Managing Member in or any of its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), the Managing Member unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member for the same price per security. The Except pursuant to Section 4.7, the Company may not redeem, repurchase or otherwise acquire (xA) any Class A Units from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo the Managing Member of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCothe Managing Member. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group Managing Member in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo the Managing Member or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo The Managing Member shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Parsley Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Interests in the Company shall be represented by Units, or such other Equity Securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member Manager shall determine in accordance with Section 4.43.4. Each authorized Unit may be issued pursuant to such agreements and in exchange for such Capital Contributions or other consideration as the Managing Member Manager shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class . Exhibit A Units” sets forth the Members and “Class B Units.” The the number and class of Units issued to held by each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderof them at the Effective Time.
(cb) Initially, none of the Units will be represented by certificates; provided, that the Common Units issued to Stagwell, Stagwell FAF and their Permitted Transferees shall be represented by certificates, with the total amount of Common Units issued to Stagwell initially represented by two certificates: (i) the first certificate representing the portion of Stagwell’s Capital Contribution that is property subject to Section 704(c) of the Code and (ii) the second certificate representing the portion of Stagwell’s Capital Contribution that is property that is not subject to Section 704(c) of the Code, in each case, as Stagwell shall notify the Manager as soon reasonably possible after the addition of Stagwell as a Member of the Company and the completion of Stagwell’s Capital Contribution to the Company. If the Managing Member Manager determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(b) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(dc) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article VIII shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If. At the Effective Time, at any time Exhibit A shall constitute the Unit Register. From and after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute subject to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision provisions of this Agreement (including Section 4.1(e)3.1(c), the Company may redeem Class A Units from maintain the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount Unit Register in such mannerform as the Manager shall determine from time to time, and make such adjustments to or take such other actions with respect to any changes in the capitalization of PubCo and information set forth in the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Unit Register shall not require any amendment or other Equity Securities of PubCo and change to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.Exhibit A.
Appears in 1 contract
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held initially by each Member the Members as of the date hereof is set forth on Exhibit A. The Company shall, without the requirement of additional action or approval by the Managing Member or any other Person, update such schedule of Members in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j)Units, in each case, from time to time in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued (“Corresponding OpCo Equity Securities”) and (ii) PubCo shall concurrently contribute to the foregoing:
Company the net proceeds (i) If in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(a)(iv). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
Company (g) “Corresponding PubCo Equity Securities”). If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) except pursuant to Section 3.6, any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Corresponding OpCo Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Corresponding PubCo Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoSecurities. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Except pursuant to Section 3.1(i) or as provided in or Section 5.2(c), the Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Corresponding PubCo Equity Securities of PubCo)Securities, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) PubCo unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Corresponding OpCo Equity Securities of the Company)Securities, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or the assets and liabilities of another such Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it PubCo reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)anticipates, PubCo may, in its sole discretion: (i) contribute such excess cash amount to the Company in exchange for a number of Units or other Equity Securities of the Company, determined in its sole discretion, and distribute to the holders of Class A Shares such number of Class A Shares (if the Company issues Units to PubCo) or Corresponding PubCo Equity Securities (if the Company issues Equity Securities of the Company other than Units), or (ii), use or cause to be used such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Class A Shares, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6, and the other provisions hereof; provided that, if the PubCo Holdings Group contributes any such excess cash to the Company in exchange for Units, the number of Units issued to the PubCo Holdings Group shall be determined consistent with the provisions of Section 5.2(c).
Appears in 1 contract
Samples: Limited Liability Company Agreement (LandBridge Co LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 3.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units for purposes of the Uniform Commercial Codeexcept as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members, after giving effect to the transactions contemplated by the Contribution Agreement, is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and corresponding number of shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the and PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such other Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit or equity incentive plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise (including cashless exercise) or settlement of such rights, warrants, options or other rights or property.
; provided, however, that PubCo shall be required to contribute all of the net proceeds and property (fif any) received by PubCo from or otherwise in connection with such issuance of Equity Securities in exchange for the issuance of Units to the Company pursuant to this Section 3.1(e). Except pursuant to the foregoing provisions of this Section 4.73.1(e) and Section 3.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the net proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible outstanding Equity Security outstanding at of PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other outstanding Equity Security outstanding at of the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds proceeds, if any, received by the PubCo Holdings Group from any such exercise.
(if) No member Neither PubCo nor any of the PubCo Holdings Group its Subsidiaries may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than shares of Class B SharesCommon Stock), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCothe Company. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity dividend or distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets Sections 3.1(c) and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material receives Tax Distributions in an amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the amount that will enable PubCo Taxto meet its U.S. federal, state and local and non-Related Liabilities for such period)U.S. tax obligations or holds any other excess cash amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units to PubCo) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Remora Royalties, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
Company the net proceeds (i) If in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 4.6(d). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Fortress Energy LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement.
) as of the date set forth therein. (e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
Company the net proceeds (i) If in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 4.6(a)(iv). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Fortress Energy LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 4.3).
(c) InitiallyPrior to the date hereof, none of the Units, other than the Escrow Units, have been represented by certificates. From and after the date hereof, the Units will not be represented by certificatescertificates except as provided below in this Section 4.1(c). The Escrow Units, upon issuance thereof pursuant to the Contribution Agreement and until such time as they are disbursed from escrow in accordance with the terms of the Escrow Agreement, shall be represented by certificates (each, an “Escrow Unit Certificate”). Upon the disbursement of any Escrow Units from escrow in accordance with the Escrow Agreement, such Escrow Units thereafter shall no longer be represented by Escrow Unit Certificates, and, to the extent such Escrow Units remain outstanding following such disbursement, such Escrow Units shall be registered and held in the same manner as other Units then outstanding generally are registered and held. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units (other than the Escrow Units), certificates will be issued and the Units will be represented by those certificates. If, at any time at which Units are not generally represented by certificates, a Member requests that any or all of such Member’s Units be represented by certificates, the Managing Member may, in its sole discretion, cause such Units to be represented by certificates. Each certificate representing Units (including each Escrow Unit Certificate) shall be in substantially the form attached hereto as Exhibit A; provided, however, that each Escrow Unit Certificate issued prior to the date hereof shall continue to be a valid certificate representing the Escrow Units indicated thereon notwithstanding that such Escrow Unit Certificate was issued in the form attached as Exhibit A to the Second A&R LLC Agreement rather than in the form attached as Exhibit A hereto. Each certificate representing Units shall be signed by any duly appointed Officer, and any such Officer’s signature on a certificate representing Units may be a facsimile signature. Nothing contained in this Agreement Section 4.1(c) shall be amended deemed to authorize or permit any Member to Transfer its Units except as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Codeotherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article IX shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transfers sells an equal number of newly-issued shares of the Managing Member’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the The Managing Member in or any of its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.or
Appears in 1 contract
Samples: Limited Liability Company Agreement (Parsley Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Interests in the Company shall be represented by Units, or such other Equity Securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. At the Effective Time, the Common Units will constitute the sole class of authorized Units. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member Manager shall determine in accordance with Section 4.4. 3.5 .. Each authorized Unit may be issued pursuant to such agreements and in exchange for such Capital Contributions or other consideration as the Managing Member Manager shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin this Agreement).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member Manager determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.2(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “ Unit Register ”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article VIII shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however , that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If. At the Effective Time, at any time Exhibit A shall constitute the Unit Register. From and after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute subject to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision provisions of this Agreement (including Section 4.1(e))3.2(d) , the Company may redeem Class A Units from maintain the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount Unit Register in such mannerform as the Manager shall determine from time to time, and make such adjustments to or take such other actions with respect to any changes in the capitalization of PubCo and information set forth in the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Unit Register shall not require any amendment or other Equity Securities of PubCo and change to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofExhibit A .
Appears in 1 contract
Samples: Merger and Contribution Agreement (Matlin & Partners Acquisition Corp)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit D (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transfers sells an equal number of newly-issued shares of the Managing Member’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to the Managing Member or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Managing Member or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo the Managing Member or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the The Managing Member in or any of its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), the Managing Member unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Managing Member an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member for the same price per security. The Except pursuant to Section 4.7, the Company may not redeem, repurchase or otherwise acquire (xA) any Class A Units from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group Managing Member or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Managing Member or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo the Managing Member of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCothe Managing Member. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group Managing Member in connection with the redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo the Managing Member or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo The Managing Member shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Parsley Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Interests in the Company shall be represented by Units, or such other Equity Securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. At the Effective Time, the Common Units will constitute the sole class of authorized Units. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member Manager shall determine in accordance with Section 4.43.5. Each authorized Unit may be issued pursuant to such agreements and in exchange for such Capital Contributions or other consideration as the Managing Member Manager shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin this Agreement).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member Manager determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.2(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article VIII shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If. At the Effective Time, at any time Exhibit A shall constitute the Unit Register. From and after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute subject to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision provisions of this Agreement (including Section 4.1(e)3.2(d), the Company may redeem Class A Units from maintain the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount Unit Register in such mannerform as the Manager shall determine from time to time, and make such adjustments to or take such other actions with respect to any changes in the capitalization of PubCo and information set forth in the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Unit Register shall not require any amendment or other Equity Securities of PubCo and change to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.Exhibit A.
Appears in 1 contract
Samples: Limited Liability Company Agreement (U.S. Well Services, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
Company the net proceeds (i) If in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 4.6(d). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Groupi) (a) except pursuant to Section 4.6, any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Except pursuant to Section 4.1(i) or as provided in or Section 6.2(c), the Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or the assets and liabilities of another such Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it PubCo reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)anticipates, PubCo may, in its sole discretion, use or cause to be used such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 4.6, and the other provisions hereof; provided that, if the PubCo Holdings Group contributes any such excess cash to the Company in exchange for Units, the number of Units issued to the PubCo Holdings Group shall be determined consistent with the provisions of Section 6.2(c).
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Fortress Energy LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical except as otherwise provided hereunderand each outstanding Warrant Unit shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(ei) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Common Share or any other Equity Security of PubCo (other than Class B Voting Shares), (i) ), one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Common Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), if any, one Class A Common Unit (if PubCo issues a Class A Common Share), one Warrant Unit (if PubCo issues a warrant under a Warrant Agreement, with one Warrant Unit issued for each Common Share issuable pursuant to the terms of such warrant), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Shares or a warrant pursuant to a Warrant Agreement) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Common Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and Class B Voting Shares) equal to the number of Class A Common Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Common Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(d). For the avoidance of doubt, if If PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then the PubCo Holdings Group shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Common Units for Class A Common Shares, including pursuant to the Call Right, such Class A Common Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) If, at any time after the date hereof, the Company issues an Equity Security of the Company to a Member other than a member of the PubCo Holdings Group, PubCo shall concurrently issue to such Member one Voting Share.
(iv) Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued Class A Common Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(gv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for For the avoidance of doubt, in connection each outstanding Warrant Unit shall automatically convert into a Common Unit concurrently with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A warrant for Common Shares under the terms of the applicable Warrant Agreement; provided that, if the Warrant Units or other Equity Securities are certificated, each holder of Warrant Units shall instead surrender all of its Warrant Units to the Company and the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect issue to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange holder a certificate for a number of Class A Common Units equal to the number of Class A Warrant Units so redeemedsurrendered.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stronghold Digital Mining, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the and PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) if applicable, the corresponding Company Warrant or other Equity Security outstanding at the Company (including the Warrants, if applicable) shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of excess cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)amount, PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Magnolia Oil & Gas Corp)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into [one // two (2) classes )] class[es] of Units referred to as “Class A Units” [and “Class B Units.” ”] The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended by the Managing Member without the consent of any other Member as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The Persons listed on Exhibit B as members of the Company as of the date hereof are hereby admitted to the Company, or shall continue, as applicable, as Members upon their execution of this Agreement. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timedate hereof, PubCo issues a any Class A Share Shares or any other Equity Security Securities of PubCo (other than Class B Shares), (ix) PubCo shall cause one or more member(s) members of the PubCo Holdings Group shall to concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share Shares or other Equity Security Securities and (iiy) the Company shall concurrently issue to such those member(s) of the PubCo Holdings GroupGroup that have made such contributions, in accordance with the respective contributions made by each such member pursuant to clause (ix), in respect of each such Class A Share or other Equity Security issued, one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities Security of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security Securities for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders stockholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.73.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers Transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfersTransfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretionGood Faith) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.7, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if any member of the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.7 and the other provisions hereof.
(i) PubCo shall cause the other members of the PubCo Holdings Group to comply with the provisions of this Agreement, including the provisions of this Section 3.1 and Section 3.7.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rice Acquisition Corp. II)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Pubco Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.7, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rice Acquisition Corp.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical except as otherwise provided hereunderand each outstanding Warrant Unit shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(ei) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Common Share or any other Equity Security of PubCo (other than Class B Voting Shares), (i) ), one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Common Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), if any, one Class A Common Unit (if PubCo issues a Class A Common Share), one Warrant Unit (if PubCo issues a warrant under a Warrant Agreement, with one Warrant Unit issued for each Common Share issuable pursuant to the terms of such warrant), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Shares or a warrant pursuant to a Warrant Agreement) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Common Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and Class B Voting Shares) equal to the number of Class A Common Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Common Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(d). For the avoidance of doubt, if If PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then the PubCo Holdings Group shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Common Units for Class A Common Shares, including pursuant to the Call Right, such Class A Common Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) If, at any time after the date hereof, the Company issues an Equity Security of the Company to a Member other than a member of the PubCo Holdings Group, PubCo shall concurrently issue to such Member one Voting Share.
(iv) Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued Class A Common Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(gv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) For the avoidance of doubt, each outstanding Warrant Unit shall automatically convert into a Common Unit concurrently with the exercise of the corresponding warrant for Common Shares under the terms of the applicable Warrant Agreement; provided that, if the Warrant Units are certificated, each holder of Warrant Units shall instead surrender all of its Warrant Units to the Company and the Company shall issue to such holder a certificate for a number of Common Units equal to the number of Warrant Units surrendered.
(f) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Common Shares (including upon forfeiture of any unvested Class A Common Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Common Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant)Securities, then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, ; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities of PubCo Holdings Group for such period), PubCo may, in its sole discretion, the Managing Member may use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Common Shares, as PubCo (including in its capacity as the Managing Member) Member in Good Faith determines determine to be fair and reasonable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stronghold Digital Mining, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Pubco Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.7, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l4.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rice Acquisition Corp.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes one class of Units referred to as “Class A Units” and “Class B Units.” ”. The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended by the Managing Member without the consent of any other Member as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The Persons listed on Exhibit B as members of the Company as of the date hereof are hereby admitted to the Company, or shall continue, as applicable, as Members upon their execution of this Agreement. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(fiii) Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers Transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfersTransfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(giv) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(hv) In the event any PubCo Pubco Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(ivi) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jf) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(h), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kg) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Archaea Energy Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions terms of this Agreement and the Members' Agreement, the Company shall be is authorized to issue from time to time such number of equity interests in the Company designated as "Units," which shall constitute limited liability company interests under the Delaware Act and shall include initially, Class A Units, Class B Units, Class C Units, Class D Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.4Class E Units. Each authorized Unit may be issued pursuant to such agreements further classified as the Managing Member shall approvea Participating Unit, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunder.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code.
(d) The Members as provisions of the date hereof are set forth on Exhibit B. The total number Sections 11, 12 and 18 of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each casethis Agreement, in accordance with the terms of this Agreement. The capital structure of the Company, including the classes of limited liability company interests, the number of Units issued with respect to each such class, and the consideration relating to the issuance of such Units, as of the date hereof is set forth on SCHEDULE I hereto. SCHEDULE I hereto shall be amended from time to time to reflect any changes due to the issuance or redemption of Units or as otherwise determined by the Board.
(eb) IfOn the closing date under the Original Agreement, at any time after the Effective Time, PubCo issues a Company issued Class A Share Units to each Member in the number set forth opposite such Member's name on SCHEDULE I hereto in exchange for cash contributions or any other Equity Security for contributions of PubCo (other than PFHC Stock, in each case, in the amount set forth opposite such Member's name as Capital Contributions on SCHEDULE I hereto, Class B Shares)Units to CDM in the number set forth opposite such Member's name on SCHEDULE I hereto in exchange for cash contributions or for contributions of PFHC Stock in the amount set forth opposite such Member's name as Capital Contributions, with respect to Class B Units, on SCHEDULE I hereto, and Class D and Class E Units to CDM in the number set forth opposite such Member's name on SCHEDULE I hereto for no additional consideration.
(ic) one or more member(s) In connection with the closing of the PubCo Holdings Group shall concurrently contribute to Aurora Transaction, the Company shall issue Class A Units to each Member in the net proceeds (number set forth opposite such Member's name on SCHEDULE I hereto in exchange for contributions in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, valuable consideration; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
issued to Bondholder Trust as reflected on SCHEDULE I shall be adjusted after the date hereof to reflect (li) Notwithstanding any other provision the number of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash such Class A Units to be issued as finally determined in excess of any monetary obligations it reasonably anticipates (including as a result accordance with Article IV of the receipt of distributions Aurora Merger Agreement and (ii) any Class A Units returned to the Company pursuant to Section 6.2 for any period in excess the provisions of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines Indemnity Agreement to be fair and reasonable to entered into in connection with the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.Aurora
Appears in 1 contract
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 4.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. A. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 12.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j4.1(f), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (OneWater Marine Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical except as otherwise provided hereunderand each outstanding Preferred Unit shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timedate hereof, PubCo issues a Class A Common Share, a Preferred Share (including any PIK Preferred Share) or any other Equity Security of PubCo (other than Class B Voting Shares), (i) except in the case of an issuance of PIK Preferred Shares (it being understood that PIK Preferred Shares will be issued for no additional consideration to PubCo), one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Common Share, Preferred Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a Class A Common Share), one Preferred Unit (if PubCo issues a Preferred Share or a PIK Preferred Share) or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Common Shares, Preferred Shares or PIK Preferred Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Common Shares or Preferred Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and Class B Voting Shares) equal to the number of Class A Common Shares or Preferred Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Common Shares or Preferred Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(d). For the avoidance of doubt, if If PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then the PubCo Holdings Group shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to (i) the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Common Units for Class A Common Shares, including pursuant to the Call Right, such Class A Common Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
property or (fii) the issuance and distribution of Preferred Shares in connection with the Preferred Conversion. Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued Class A Common Shares of PubCo or Preferred Shares to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of such member of the PubCo Holdings Group with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Common Shares (including upon forfeiture of any unvested Class A Common Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Common Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities Liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant)Securities, then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, ; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities Liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities of PubCo Holdings Group for such period), PubCo may, in its sole discretion, the Managing Member may use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Common Shares, as PubCo (including in its capacity as the Managing Member) Member in Good Faith determines determine to be fair and reasonable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6 and the other provisions hereof.
(j) Notwithstanding any other provision of this Agreement (including Section 3.1(e)), if, prior to a Public Offering, the Company has made any non-pro rata Tax-Related Distributions purusant to final provisio of Section 5.2 to the extent such distributions have not otherwise reduced other distributions to a Member, the Managing Member shall (i) establish a means of tracking and aggregating the cumulative disproportionality of such net disproportionate distributions and (ii) take actions to account for such net disportionate distributions (including, but not limited to, making adjustments to or taking such other actions with respect to the capitalization of PubCo and the Company or to the one-to-one exchange ratio between Common Units and Common Shares) as the Managing Member in Good Faith determine to be fair and reasonable to the shareholders of PubCo and to the Members and to achieve (prior to Redemption) the intended economic effect of this Section 3.1, Section 3.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stronghold Digital Mining, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units As of the date of this Agreement, the Company shall be initially divided into have two (2) authorized classes of Units referred to Units, consisting of units of limited liability company interests denominated as “Class A Common Units” and “Class B Series A Preferred Units.” The number and class of All Common Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderand all Series A Preferred Units shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo Time Rosehill issues a share of its Class A Share Common Stock, its Series A Preferred Stock or any other Equity Security of PubCo Rosehill (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) Rosehill one Common Unit (if Rosehill issues a share of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (iClass A Common Stock), one Class Series A Preferred Unit (if PubCo Rosehill issues a Class share of Series A Share), Preferred Stock) or such other Equity Security of the Company (if PubCo Rosehill issues Equity Securities other than Class A SharesCommon Stock or Series A Preferred Stock) corresponding to the Equity Securities issued by PubCoRosehill, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo Rosehill to be issued. Notwithstanding issued and (ii) Rosehill shall concurrently contribute to the foregoing:
Company the net proceeds received by Rosehill for such share of Class A Common Stock, Series A Preferred Stock or other Equity Security (i) If PubCo including any exercise price related thereto); provided, however, that if Rosehill issues any shares of Class A Shares Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Rosehill shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to (i) the issuance and distribution to holders of PubCo Shares shares of Rosehill Stock of rights to purchase Equity Securities of PubCo Rosehill under a “poison pill” or similar shareholders rights plan (and upon any Redemption exchange of Class A Common Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), ) or to (ii) the issuance under PubCoRosehill’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo Rosehill or rights or property that may be converted into or settled in Equity Securities of PubCoRosehill, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo Rosehill in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
property (f) it being understood that Rosehill shall contribute to the Company the net proceeds, if any, received by Rosehill in connection with such exercise or settlement). Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Common Units to Rosehill or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Rosehill or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Rosehill’s Class A Shares Common Stock to another Person, (y) the Company may not issue any additional Series A Preferred Units to Rosehill or any of PubCo its Subsidiaries unless substantially simultaneously therewith Rosehill or such Subsidiary issues or sells an equal number of shares of Rosehill’s Series A Preferred Stock to another Person (other than another member of the PubCo Holdings Group), and (yz) the Company may not issue any other Equity Securities of the Company to Rosehill or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Rosehill or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo Rosehill or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group Rosehill issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group Rosehill shall transfer to the Company (in a manner to be determined by the Managing Manager Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group Rosehill in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo Rosehill (including the Series A Preferred Stock) is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo Rosehill are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company (including the Series A Preferred Units or the Warrants, if applicable) shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Common Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group Rosehill as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member Rosehill or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Rosehill or such Subsidiary an equal number of Class Common Units for the same price per security, (ii) any shares of Series A Preferred Stock (including upon forfeiture of any unvested shares of Series A Preferred Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from Rosehill or such Subsidiary an equal number of Series A Preferred Units for the same price per security or (biii) any other Equity Securities of PubCo (other than Class B Shares)Rosehill, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Rosehill an equal number of Equity Securities of the Company Rosehill of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo Rosehill for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Common Units from the PubCo Holdings Group Rosehill or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Rosehill or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, (y) any Series A Preferred Units from Rosehill or any of its Subsidiaries unless substantially simultaneously Rosehill or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Series A Preferred Stock for the same price per security from holders thereof or (yz) any other Equity Securities of the Company from the PubCo Holdings Group Rosehill or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Rosehill or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo Rosehill of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoRosehill. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group Rosehill in connection with the redemption or repurchase of any shares of Class A Shares Common Stock, Series A Preferred Stock or other Equity Securities of PubCo Rosehill or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock, Series A Preferred Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (Rosehill Stock or other corresponding Equity Securities of PubCo)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo Rosehill shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (Rosehill Stock or other Equity Securities of PubCo) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rosehill Resources Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units As of the date of this Agreement, the Company shall be initially divided into have two (2) authorized classes of Units referred to Units, consisting of units of limited liability company interests denominated as “Class A Common Units” and “Class B Preferred Units.” The number As of the date of this Agreement, the Preferred Units shall consist of two series, designated as the 8.000% Series A Cumulative Perpetual Convertible Preferred Units (the “Series A Preferred Units”) and class of the 10.000% Series B Redeemable Preferred Units issued to each Member (the “Series B Preferred Units”). All Common Units shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit identical, all Series A Preferred Units shall be identical except as otherwise provided hereunderidentical, and all Series B Preferred Units shall be identical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo Rosehill issues a share of its Class A Share Common Stock or any other Equity Security of PubCo Rosehill (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Rosehill one Class A Common Unit (if PubCo Rosehill issues a share of Class A Share), Common Stock) or such other Equity Security of the Company (if PubCo Rosehill issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCoRosehill, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo Rosehill to be issued. Notwithstanding issued and (ii) Rosehill shall concurrently contribute to the foregoing:
Company the net proceeds received by Rosehill for such share of Class A Common Stock or other Equity Security (i) If PubCo including any exercise price related thereto); provided, however, that if Rosehill issues any shares of Class A Shares Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Rosehill shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to (i) the issuance and distribution to holders of PubCo Shares shares of Rosehill Stock of rights to purchase Equity Securities of PubCo Rosehill under a “poison pill” or similar shareholders rights plan (and upon any Redemption exchange of Class A Common Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), ) or to (ii) the issuance under PubCoRosehill’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo Rosehill or rights or property that may be converted into or settled in Equity Securities of PubCoRosehill, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo Rosehill in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
property (f) it being understood that Rosehill shall contribute to the Company the net proceeds, if any, received by Rosehill in connection with such exercise or settlement). Except pursuant to Section 4.74.6, (xA) the Company may not issue any additional Class A Common Units to Rosehill or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group Rosehill or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Rosehill’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group), and (yB) the Company may not issue any other additional Equity Securities of the Company to Rosehill or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group Rosehill or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new or existing class or series of Equity Securities of PubCo Rosehill or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group Rosehill issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group Rosehill shall transfer to the Company (in a manner to be determined by the Managing Manager Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group Rosehill in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo Rosehill (including any series of Preferred Stock) is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo Rosehill are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company (including any series of Preferred Units or the Warrants, if applicable) shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Common Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group Rosehill as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member Rosehill or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Rosehill or such Subsidiary an equal number of Class A Common Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)Rosehill, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group Rosehill or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo Rosehill for the same price per security. The Company may not redeem, repurchase or otherwise acquire (xA) except pursuant to Section 4.6, any Class A Common Units from the PubCo Holdings Group Rosehill or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Rosehill or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, thereof or (yB) any other Equity Securities of the Company from the PubCo Holdings Group Rosehill or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group Rosehill or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo Rosehill of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoRosehill. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group Rosehill in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo Rosehill or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (Rosehill Stock or other corresponding Equity Securities of PubCo)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo Rosehill shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (Rosehill Stock or other Equity Securities of PubCo) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rosehill Resources Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held initially by each Member the Members as of the date hereof is set forth on Exhibit A. The Company shall, without the requirement of additional action or approval by the Managing Member or any other Person, update such schedule of Members in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j)Units, in each case, from time to time in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued (“Corresponding OpCo Equity Securities”) and (ii) PubCo shall concurrently contribute to the foregoing:
Company the net proceeds (i) If in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security; provided that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(a)(iii). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
Company (g) “Corresponding PubCo Equity Securities”). If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) except pursuant to Section 3.6, any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Corresponding OpCo Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Corresponding PubCo Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoSecurities. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of the PubCo Holdings Group consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Except pursuant to Section 3.1(i) or as provided in or Section 5.2(c), the Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Corresponding PubCo Equity Securities of PubCo)Securities, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) PubCo unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Corresponding OpCo Equity Securities of the Company)Securities, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or the assets and liabilities of another such Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it PubCo reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)anticipates, PubCo may, in its sole discretion: (i) contribute such excess cash amount to the Company in exchange for a number of Units or other Equity Securities of the Company, determined in its sole discretion, and distribute to the holders of Class A Shares such number of Class A Shares (if the Company issues Units to PubCo) or Corresponding PubCo Equity Securities (if the Company issues Equity Securities of the Company other than Units), or (ii) use or cause to be used such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Class A Shares, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6, and the other provisions hereof; provided that, if the PubCo Holdings Group contributes any such excess cash to the Company in exchange for Units, the number of Units issued to the PubCo Holdings Group shall be determined consistent with the provisions of Section 5.2(c).
Appears in 1 contract
Samples: Limited Liability Company Agreement (LandBridge Co LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Common Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group or Such Subsidiary in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lh) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material excess cash amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant relating to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such periodOffering Expenses), PubCo may, in its sole discretion, use contribute such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization Company in exchange for a number of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares Units or other Equity Securities of PubCo the Company determined in its sole discretion, and distribute to the Members holders of Class A Common Stock shares of Class A Common Stock (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to preserve dividends and distributions (including distributions upon liquidation) and other economic rights as those of such Equity Securities of the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereofCompany issued.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Cactus, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Common Units, Preferred Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company; provided, that any such issuance, and the admission of any Person as a Member in connection therewith, is otherwise made in accordance with the provisions of this Agreement.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) Initially, none of the Units will be represented by certificatesuncertificated. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as the Managing Member shall determine necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number and type of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, at any time after the Effective Time, PubCo issues a share of its Class A Share Common Stock or any other Equity Security of PubCo (other than shares of Class B SharesCommon Stock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a share of Class A ShareCommon Stock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesCommon Stock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding issued and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds or other property received by PubCo, if any, for such share of Class A Common Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Common Stock in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings GroupPubCo) of a number of Class A Common Units (and shares of Class B SharesCommon Stock) equal to the number of shares of Class A Shares Common Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith and, where such shares of Class A Shares Common Stock have been issued for cash to fund such an acquisition by any member of the acquisition, PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Common Units for Class A Shares, including pursuant to the Call RightCommon Stock, such Class A Shares Common Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, stock appreciation right, restricted stock, restricted stock units, performance-based award or other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options options, stock appreciation right, restricted stock, restricted stock units, performance-based award or other rights or property.
(f) . Except pursuant to Section 4.74.6, (x) the Company may not issue any additional Class A Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Class A Shares of PubCo Common Stock to another Person (other than another member of and contributes the PubCo Holdings Group)net proceeds therefrom to the Company, and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company and contributes the net proceeds therefrom to the Company.
(g) . If at any time PubCo or any member of the PubCo Holdings Group issues Debt Securities its Subsidiaries (other than to another member of the Company and its Subsidiaries) issues Debt Securities, PubCo Holdings Group), or such member of the PubCo Holdings Group Subsidiary shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by PubCo or such member of the PubCo Holdings Group Subsidiary, as applicable, in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any shares of Class A Shares Common Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (ai) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (bii) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of the PubCo Holdings Group its Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Common Stock (including upon forfeiture of any unvested shares of Class A SharesCommon Stock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Common Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 4.6, any Class A Common Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Common Stock for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any shares of Class A Shares Common Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Common Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrantwarrant other than those issued under PubCo’s employee benefit plans), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Common Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Common Stock, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) Common Stock unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Common Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Atlas Technical Consultants, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) a. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units b. As of the date of this Agreement, the Company shall be initially divided into have two (2) authorized classes of Units referred to Units, consisting of units of limited liability company interests denominated as “Class A Common Units” and “Class B Preferred Units.” The number and class As of the date of this Agreement, the Preferred Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit consist of one series, designated as the Series A Redeemable Convertible Preferred Units (the “Series A Preferred Units”). All Common Units shall be identical and all Series A Preferred Units shall be identical (except as otherwise provided hereunderin Section 4.3).
(c) c. Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. d. The total number of Units issued and outstanding and held by each Member as the Members immediately following the consummation of the date hereof Closing (as defined in the Securities Purchase Agreement) is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit B (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, e. If at any time after the Effective Time, PubCo issues a share of its Class A Share Stock or any other Equity Security of PubCo (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding , and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo, if any, for such share of Class A Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Common Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Common Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other additional Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new or existing class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Manager Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo (including any series of Preferred Stock) is exercised, exchanged settled or otherwise converted and, as a result, any shares of Class A Shares Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company (including any series of Preferred Units) shall be similarly exercised, exchanged settled or otherwise converted, as applicable, and an equivalent number of Class A Common Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member f. PubCo or any of its Subsidiaries, other than the PubCo Holdings Group Company, may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Common Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (xA) except pursuant to Section 4.7, any Class A Common Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the conversion, redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of cash, shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the conversion, redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) g. The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (Stock or other corresponding Equity Securities of PubCo)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (Stock or other Equity Securities of PubCo) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Earthstone Energy Inc)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timefinal delivery of Class A Shares by PubCo in the IPO, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If ; provided, however, that if PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionacquisition as required pursuant to Section 3.6(a)(iii). For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.6, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a such member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued PubCo’s Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a such member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group)Securities, such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) except pursuant to Section 3.6, any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(i), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(li) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period)anticipates, PubCo may, in its sole discretion:
(i) contribute such excess cash amount to the Company in exchange for a number of Units or other Equity Securities of the Company determined in its sole discretion, and distribute to the holders of Class A Shares Class A Shares (if the Company issues Units to PubCo) or such other Equity Security of PubCo (if the Company issues Equity Securities of the Company other than Units) corresponding to the Equity Securities issued by the Company and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences resulting from any tax or other liabilities borne by PubCo) and other economic rights as those of such Equity Securities of the Company issued, or
(ii) use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Class A Shares, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.13.1, Section 4.7 3.6 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fortis Minerals, LLC)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two Except to the extent explicitly provided otherwise herein (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to including Section 3.3), each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderidentical.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof is set forth in the books and records of the Company. The Company shall update such books and records from time to time to reflect any Transfers of InterestsInterests in accordance with this Agreement, the issuance of additional Units or Equity Securities and and, subject to Section 11.1(a), subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j3.1(g), in each case, in accordance with the terms of this Agreement.
(e) If, at any time after the Effective Timefinal delivery of Class A Shares by PubCo in the Business Combination, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B V Shares), other than in connection with an Exchange Transaction, (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings GroupPubCo, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This . Notwithstanding the foregoing, this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
, which shall be undertaken so as to comply with the provisions of Treasury Regulations Section 1.1032-3 and deemed to occur for U.S. federal (fand applicable state and local) Except pursuant to Section 4.7, (x) the income tax purposes as provided therein. The Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers sells an equal number of newly-newly issued PubCo’s Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-newly issued shares of a new class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event . If any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged exercised or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a1) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged exercised or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e3.1(e), and (b2) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member of the PubCo Holdings Group may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares)PubCo, unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of resulting from any tax or other liabilities borne by the PubCo Holdings GroupPubCo) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant)Securities, then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) Company unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo)Shares, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l3.1(j), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)Units, with corresponding changes made with respect to any other exchangeable or convertible securities.
(kh) PubCo shall at all times keep available, solely for the purpose of Exchange Transactions, out of its authorized but unissued Class A Shares, such number of Class A Shares that shall be issuable upon the exchange pursuant to an Exchange Transaction of all outstanding Units (other than those Units held by PubCo). PubCo covenants that all Class A Shares that shall be issued in an Exchange Transaction shall, upon issuance thereof, be validly issued, fully paid and non-assessable. In addition, for so long as the Class A Shares are listed on a National Securities Exchange, PubCo shall use its reasonable best efforts to cause all Class A Shares issued in an Exchange Transaction to be listed on such National Securities Exchange at the time of such issuance.
(i) Notwithstanding any other provision of this Agreement (including Section 4.1(e))Agreement, the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, ; provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(lj) Notwithstanding any other provision of this Agreement (including Section 4.1(e3.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 5.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, and the Managing Member may use such excess cash amount in such other manner, and make such other adjustments to or take such other actions with respect to the capitalization of PubCo and the CompanyCompany and to the one-to-one exchange ratio between Units and Class A Shares, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable equitable to the holders of PubCo Shares or other Equity Securities shareholders of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 3.1 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Aldel Financial Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Interests in the Company shall be represented by Units, or such other Equity Securities of the Company, in each case as the Managing Member may establish in its discretion in accordance with the terms and subject to the restrictions hereof. As of the date hereof, Units may be either Class A Common Units or Class B Common Units. Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number and class of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.5. Each authorized Unit may be issued pursuant to such agreements and in exchange for such Capital Contributions or other consideration as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Common Unit shall be identical except as otherwise provided hereunderin this Agreement, and the rights of the Class A Common Units and Class B Common Units shall be as set forth herein.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.2(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article VIII shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If. At the Effective Time, at any time Exhibit A shall constitute the Unit Register. From and after the Effective Time, PubCo issues a Class A Share or any other Equity Security of PubCo (other than Class B Shares), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute subject to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Unit (if PubCo issues a Class A Share), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A Shares) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding the foregoing:
(i) If PubCo issues any Class A Shares in order to acquire or fund the acquisition from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and Class B Shares) equal to the number of Class A Shares so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisition. For the avoidance of doubt, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This Section 4.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption of Class A Units for Class A Shares, including pursuant to the Call Right, such Class A Shares will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision provisions of this Agreement (including Section 4.1(e)3.2(d), the Company may redeem Class A Units from maintain the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount Unit Register in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity form as the Managing Member) Member shall determine from time to time, and any changes in Good Faith determines to be fair and reasonable to the holders of PubCo Shares information set forth in the Unit Register shall not require any amendment or other Equity Securities of PubCo and change to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.Exhibit A.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stryve Foods, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.43.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company. As of the Effective Date, the Company shall have two authorized classes of Units, consisting of units of limited liability company interest denominated as “Common Units” and “Series A Preferred Units.”
(b) The All Common Units shall be initially divided into two have identical rights and privileges in all respects, and all Series A Preferred Units shall have identical rights and privileges in all respects. (2) classes of Units referred except in all cases with respect to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereundervesting).
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 3.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as of the date hereof Members is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit A (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo SEI issues a share of its Class A Share Stock, Series A Preferred Stock or any other Equity Security of PubCo SEI (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) SEI one Common Unit (if SEI issues a share of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (iClass A Stock), one Class Series A Preferred Unit (if PubCo SEI issues a Class share of Series A Share), Preferred Stock) or such other Equity Security of the Company (if PubCo SEI issues Equity Securities other than Class A SharesStock or Series A Preferred Stock) corresponding to the Equity Securities issued by PubCoSEI, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities issued by SEI and (ii) the net proceeds received by SEI with respect to such corresponding share of PubCo Class A Stock, Series A Preferred Stock or other Equity Security, if any, shall be concurrently transferred to be issued. Notwithstanding the foregoing:
(i) If PubCo Company; provided, however, that if SEI issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group and SEI shall not be required to transfer such any net proceeds of such issuance to the Company, and Company (it being understood that any such net proceeds shall instead be transferred by such member of to the PubCo Holdings Group to such selling Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e3.1(e) shall not apply to the issuance and distribution to holders of PubCo Shares shares of Common Stock of rights to purchase Equity Securities of PubCo SEI under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Common Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCoSEI’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo SEI or rights or property that may be converted into or settled in Equity Securities of PubCoSEI, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo SEI in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.73.7, (x) the Company may not issue any additional Class Common Units or Series A Preferred Units to SEI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group SEI or such Subsidiary issues or transfers sells an equal number of newly-issued shares of Class A Shares of PubCo Stock or Series A Preferred Stock, as applicable, to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other Equity Securities of the Company to SEI or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group SEI or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo SEI or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(gf) If at SEI or any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group Subsidiaries may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group SEI an equal number of Class A Common Units for the same price per security or security, (bii) any other Equity Securities shares of PubCo (other than Class B Shares), Series A Preferred Stock unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from SEI an equal number of Series A Preferred Units for the PubCo Holdings Group same consideration that is to be paid by SEI in accordance with Section 3.8(d), or (iii) any other Equity Securities of SEI unless simultaneously the Company redeems, repurchases or otherwise acquires from SEI an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo SEI for the same price per security. The Except pursuant to Section 3.7 or Section 3.8, as applicable, the Company may not redeem, repurchase or otherwise acquire (xA) any Class A Common Units from the PubCo Holdings Group SEI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SEI or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, (B) any Series A Preferred Units from SEI or any of its Subsidiaries unless simultaneously SEI or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Series A Preferred Stock for the same consideration to be paid by SEI, or (yC) any other Equity Securities of the Company from the PubCo Holdings Group SEI or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group SEI or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo SEI of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCoSEI. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group SEI in connection with the redemption or repurchase of any shares of Class A Shares Stock, Series A Preferred Stock or other Equity Securities of PubCo SEI or any of its Subsidiaries consists (in whole or in part) of shares of Class A Shares Stock, Series A Preferred Stock, or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), as applicable, then the redemption or repurchase of the corresponding Class Common Units, Series A Preferred Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(jg) The Company shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the an outstanding class or series of corresponding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the corresponding outstanding PubCo Shares (class or other corresponding series of Equity Securities of PubCo)SEI, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo SEI shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the an outstanding PubCo Shares (class or other series of Equity Securities of PubCo) SEI unless accompanied by an identical subdivision or combination, as applicable, of the corresponding outstanding class or series of Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Spark Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units shall be initially divided into two (2) classes of Units referred to as “Class A Units” and “Class B Units.” The number and class of Units issued to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical (except with respect to vesting and as otherwise provided hereunderin Section 4.3).
(c) InitiallyPrior to the date hereof, none of the Units, other than the Escrow Units, have been represented by certificates. From and after the date hereof, the Units will not be represented by certificatescertificates except as provided below in this Section 4.1(c). The Escrow Units, upon issuance thereof pursuant to the Contribution Agreement and until such time as they are disbursed from escrow in accordance with the terms of the Escrow Agreement, shall be represented by certificates (each, an “Escrow Unit Certificate”). Upon the disbursement of any Escrow Units from escrow in accordance with the Escrow Agreement, such Escrow Units thereafter shall no longer be represented by Escrow Unit Certificates, and, to the extent such Escrow Units remain outstanding following such disbursement, such Escrow Units shall be registered and held in the same manner as other Units then outstanding generally are registered and held. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units (other than the Escrow Units), certificates will be issued and the Units will be represented by those certificates. If, at any time at which Units are not generally represented by certificates, a Member requests that any or all of such Member’s Units be represented by certificates, the Managing Member may, in its sole discretion, cause such Units to be represented by certificates. Each certificate representing Units (including each Escrow Unit Certificate) shall be in substantially the form attached hereto as Exhibit A; provided, however, that each Escrow Unit Certificate issued prior to the date hereof shall continue to be a valid certificate representing the Escrow Units indicated thereon notwithstanding that such Escrow Unit Certificate was issued in the form attached as Exhibit A to the Second A&R LLC Agreement rather than in the form attached as Exhibit A hereto. Each certificate representing Units shall be signed by any duly appointed Officer, and any such Officer’s signature on a certificate representing Units may be a facsimile signature. Nothing contained in this Agreement Section 4.1(c) shall be amended deemed to authorize or permit any Member to Transfer its Units except as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Codeotherwise permitted under this Agreement.
(d) The Members Company shall maintain as part of its books and records a register (the date hereof are “Unit Register”) with respect to all Units issued by the Company. The Unit Register shall set forth on Exhibit B. The total the name of each Member and the number of Units issued held by each Member. All Transfers of Units validly made in accordance with Article IX shall be recorded in the Unit Register. The names of the Members and outstanding and the number of Units held by each Member as they appear in the Unit Register shall be the official record of the date hereof is set forth Members for all purposes. Absent manifest error in the books Unit Register, the Company shall be entitled to rely exclusively on record ownership of Units as shown in the Unit Register for all purposes and records shall be entitled to recognize the registered holder of Units as shown in the Unit Register as the holder of record of such Units and the Member with respect to the Interest represented thereby for all purposes; provided, however, that the Company shall treat the record owner of any certificate representing Units as the holder of the Company. The Company shall update Units evidenced thereby unless and until such books and records from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, have been Transferred in accordance with the terms of this Agreement.
(e) If, If at any time after the Effective Time, PubCo Managing Member issues a share of its Class A Share Stock (including in the IPO) or any other Equity Security of PubCo the Managing Member (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), Managing Member one Class A Unit (if PubCo the Managing Member issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo the Managing Member issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCothe Managing Member, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo the Managing Member and (ii) the net proceeds received by the Managing Member with respect to the corresponding share of Class A Stock or other Equity Security, if any, shall be issued. Notwithstanding concurrently transferred to the foregoing:
(i) If PubCo Company; provided, however, that if the Managing Member issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Units in connection therewith and, where such Class A Shares have been issued for cash to fund such an acquisition by any member of and the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group Managing Member shall not be required to transfer such net proceeds to the Company, and Company (it being understood that such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase). For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Common Stock of rights to purchase Equity Securities of PubCo the Managing Member under a “poison pill” or similar shareholders rights plan (and it being understood that upon any Redemption exchange of Class A Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such planright), or to the issuance under PubCothe Managing Member’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo the Managing Member or rights or property that may be converted into or settled in Equity Securities of PubCothe Managing Member, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo the Managing Member in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Units to any member of the PubCo Holdings Group unless substantially simultaneously therewith a member of the PubCo Holdings Group issues or transfers an equal number of newly-issued Class A Shares of PubCo to another Person (other than another member of the PubCo Holdings Group), and (y) the Company may not issue any other Equity Securities of the Company to any member of the PubCo Holdings Group unless substantially simultaneously a member of the PubCo Holdings Group issues or transfers, to another Person (other than another member of the PubCo Holdings Group), an equal number of newly-issued shares of a new class or series of Equity Securities of PubCo with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo is exercised, exchanged or otherwise converted and, as a result, any Class A Shares or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company shall be similarly exercised, exchanged or otherwise converted, as applicable, and an equivalent number of Class A Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(i) No member of the PubCo Holdings Group may redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (a) any Class A Shares (including upon forfeiture of any unvested Class A Shares) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Class A Units for the same price per security or (b) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group an equal number of Equity Securities of the Company of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (x) any Class A Units from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires an equal number of Class A Shares for the same price per security from holders thereof, or (y) any other Equity Securities of the Company from the PubCo Holdings Group unless substantially simultaneously the PubCo Holdings Group redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the redemption or repurchase of any Class A Shares or other Equity Securities of PubCo consists (in whole or in part) of Class A Shares or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(j) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (or other corresponding Equity Securities of PubCo), with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (or other Equity Securities of PubCo) unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company), with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.or
Appears in 1 contract
Samples: Limited Liability Company Agreement (Parsley Energy, Inc.)
Authorized Units; General Provisions With Respect to Units. (a) Subject to the provisions of this Agreement, the Company shall be authorized to issue from time to time such number of Units and such other Equity Securities as the Managing Member shall determine in accordance with Section 4.44.3. Each authorized Unit may be issued pursuant to such agreements as the Managing Member shall approve, including pursuant to options and warrants. The Company may reissue any Units or other Equity Securities that have been repurchased or acquired by the Company.
(b) The Units As of the Effective Date of this Agreement, as part of the Company Recapitalization, the Company shall be initially divided into have two (2) authorized classes of Units referred to Units, consisting of units of limited liability company interests denominated as “Class A Common Units” and “Class B Preferred Units.” The number As of the Effective Date, the Preferred Units shall consist of one series, designated as the Series A Convertible Preferred Units (the “Series A Preferred Units”). All Common Units shall be identical and all Series A Preferred Units shall be identical (except, in each case, as otherwise expressly provided in this Agreement). For purposes of clarity, the Series A Preferred Units shall rank senior to the Common Units and any other class or series of Units issued by the Company ranking junior to each Member shall be set forth opposite such Member’s name on Exhibit A. Each outstanding Unit shall be identical except as otherwise provided hereunderthe Series A Preferred Units with respect to payment of distributions or upon liquidation or winding up of the Company.
(c) Initially, none of the Units will be represented by certificates. If the Managing Member determines that it is in the interest of the Company to issue certificates representing the Units, certificates will be issued and the Units will be represented by those certificates, and this Agreement shall be amended as necessary or desirable to reflect the issuance of certificated Units for purposes of the Uniform Commercial Code. Nothing contained in this Section 4.1(c) shall be deemed to authorize or permit any Member to Transfer its Units except as otherwise permitted under this Agreement.
(d) The Members as of the date hereof are set forth on Exhibit B. The total number of Units issued and outstanding and held by each Member as the Members immediately following the consummation of the date hereof Series A Closing is set forth in the books and records of the Company. The Company shall update such books and records on Exhibit B (as amended from time to time to reflect any Transfers of Interests, the issuance of additional Units or Equity Securities and subdivisions or combinations of Units or other Equity Securities made in compliance with Section 4.1(j), in each case, in accordance with the terms of this Agreement) as of the date set forth therein.
(e) If, If at any time after the Effective Time, PubCo issues a share of its Class A Share Stock or any other Equity Security of PubCo (other than shares of Class B SharesStock), (i) one or more member(s) of the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds (in cash or other property, as the case may be), if any, received by PubCo for such Class A Share or other Equity Security and (ii) the Company shall concurrently issue to such member(s) of the PubCo Holdings Group, in accordance with the contributions made by each such member pursuant to clause (i), one Class A Common Unit (if PubCo issues a share of Class A ShareStock), or such other Equity Security of the Company (if PubCo issues Equity Securities other than Class A SharesStock) corresponding to the Equity Securities issued by PubCo, and with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo to be issued. Notwithstanding , and (ii) PubCo shall concurrently contribute to the foregoing:
(i) If Company the net proceeds received by PubCo, if any, for such share of Class A Stock or other Equity Security; provided, however, that if PubCo issues any shares of Class A Shares Stock in order to acquire purchase or fund the acquisition purchase from a Member (other than any member of the PubCo Holdings Group) of a number of Class A Common Units (and shares of Class B SharesStock) equal to the number of shares of Class A Shares Stock so issued, then the Company shall not issue any new Class A Common Units in connection therewith andtherewith, where such Class A Shares have been issued for cash to fund such an acquisition by any member of the PubCo Holdings Group pursuant to a Cash Election, the PubCo Holdings Group shall not be required to transfer such net proceeds to the Company, and such net proceeds shall instead be transferred by such member of the PubCo Holdings Group to such Member as consideration for such acquisitionpurchase. For Notwithstanding the avoidance of doubtforegoing, if PubCo issues any Class A Shares or other Equity Security for cash to be used to fund the acquisition by any member of the PubCo Holdings Group of any Person or the assets of any Person, then PubCo shall not be required to transfer such cash proceeds to the Company but instead such member of the PubCo Holdings Group shall be required to contribute such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries.
(ii) This this Section 4.1(e) shall not apply to the issuance and distribution to holders of shares of PubCo Shares Stock of rights to purchase Equity Securities of PubCo under a “poison pill” or similar shareholders rights plan (and upon any Redemption redemption of Class A Common Units for Class A Shares, including pursuant to the Call RightStock, such Class A Shares Stock will be issued together with a corresponding right under such plan), or to the issuance under PubCo’s employee benefit plans of any warrants, options, other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with the exercise or settlement of such rights, warrants, options or other rights or property.
(f) . Except pursuant to Section 4.7, (x) the Company may not issue any additional Class A Common Units to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously therewith a member of the PubCo Holdings Group or such Subsidiary issues or transfers sells an equal number of newly-issued shares of PubCo’s Class A Shares of PubCo Stock to another Person (other than another member of the PubCo Holdings Group)Person, and (y) the Company may not issue any other additional Equity Securities of the Company to PubCo or any member of the PubCo Holdings Group its Subsidiaries unless substantially simultaneously a member of the PubCo Holdings Group or such Subsidiary issues or transferssells, to another Person (other than another member of the PubCo Holdings Group)Person, an equal number of newly-issued shares of a new or existing class or series of Equity Securities of PubCo or such Subsidiary with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of the Company.
(g) . If at any time any member of the PubCo Holdings Group issues Debt Securities (other than to another member of the Securities, PubCo Holdings Group), such member of the PubCo Holdings Group shall transfer to the Company (in a manner to be determined by the Managing Manager Member in its reasonable discretion) the proceeds received by such member of the PubCo Holdings Group in exchange for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(h) . In the event any PubCo Warrant or other exercisable, exchangeable or convertible Equity Security outstanding at PubCo (including any series of Preferred Stock) is exercised, exchanged settled or otherwise converted and, as a result, any shares of Class A Shares Stock or other exercisable, exchangeable or convertible Equity Securities of PubCo are issued, (a) the corresponding Company Warrant or other Equity Security outstanding at the Company (including any series of Preferred Units) shall be similarly exercised, exchanged settled or otherwise converted, as applicable, and an equivalent number of Class A Common Units or other Equity Securities of the Company shall be issued to the PubCo Holdings Group as contemplated by the first sentence of this Section 4.1(e), and (b) the PubCo Holdings Group shall concurrently contribute to the Company the net proceeds received by the PubCo Holdings Group from any such exercise.
(if) No member PubCo or any of its Subsidiaries, other than the PubCo Holdings Group Company, may not redeem, repurchase or otherwise acquire (other than from another member of the PubCo Holdings Group) (ai) any shares of Class A Shares Stock (including upon forfeiture of any unvested shares of Class A SharesStock) unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Class A Common Units for the same price per security or (bii) any other Equity Securities of PubCo (other than Class B Shares), unless substantially simultaneously the Company redeems, repurchases or otherwise acquires from the PubCo Holdings Group or such Subsidiary an equal number of Equity Securities of the Company PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distributions upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo for the same price per security. The Company may not redeem, repurchase or otherwise acquire (xA) except pursuant to Section 4.7, any Class A Common Units from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires an equal number of shares of Class A Shares Stock for the same price per security from holders thereof, or (yB) any other Equity Securities of the Company from the PubCo Holdings Group or any of its Subsidiaries unless substantially simultaneously the PubCo Holdings Group or such Subsidiary redeems, repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of PubCo of a corresponding class or series with substantially the same rights to dividends and distributions (including distribution upon liquidation, but taking into account differences as a result of any tax or other liabilities borne by the PubCo Holdings Group) and other economic rights as those of such Equity Securities of PubCo. Notwithstanding the foregoing, to the extent that any consideration payable by the PubCo Holdings Group in connection with the conversion, redemption or repurchase of any shares of Class A Shares Stock or other Equity Securities of PubCo or any of its Subsidiaries consists (in whole or in part) of cash or shares of Class A Shares Stock or such other Equity Securities (including, for the avoidance of doubt, in connection with the cashless exercise of an option or warrant), then the conversion, redemption or repurchase of the corresponding Class A Units or other Equity Securities of the Company shall be effectuated in an equivalent manner. For purposes of clarity, in the event PubCo redeems the Series A Preferred Stock pursuant to Section 7 of the Certificate of Designations, the Company shall, immediately prior to the closing of such redemption by PubCo, redeem the Series A Preferred Units of PubCo for an amount equal to the aggregate then Accreted Value of the Series A Preferred Units then outstanding (which for purposes of clarity is intended to be an amount equal to the aggregate cash to be paid by PubCo to the holders of Series A Preferred Stock with respect to such redemption of Series A Preferred Stock pursuant to Section 7 of the Certificate of Designations), as contemplated by this Section 4.1(f).
(jg) The Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding Units (or other Equity Securities of the Company) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Shares (Stock or other corresponding Equity Securities of PubCo)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities. Unless in connection with any action taken pursuant to Section 4.1(l), PubCo shall not in any manner effect any subdivision (by any equity stock split, equity distributionstock dividend, reclassification, recapitalization or otherwise) or combination (by reverse equity stock split, reclassification, recapitalization or otherwise) of the outstanding PubCo Shares (Stock or other Equity Securities of PubCo) any class thereof unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units (or other corresponding Equity Securities of the Company)applicable class thereof, with corresponding changes made with respect to any other exchangeable or convertible securities.
(k) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), the Company may redeem Class A Units from the PubCo Holdings Group for cash to fund any acquisition by the PubCo Holdings Group of another Person or assets and liabilities of another Person, provided that promptly after such redemption and acquisition the PubCo Holdings Group contributes or causes to be contributed, directly or indirectly, such Person or the assets and liabilities of such Person to the Company or any of its Subsidiaries in exchange for a number of Class A Units equal to the number of Class A Units so redeemed.
(l) Notwithstanding any other provision of this Agreement (including Section 4.1(e)), if the PubCo Holdings Group acquires or holds any material amount of cash in excess of any monetary obligations it reasonably anticipates (including as a result of the receipt of distributions pursuant to Section 6.2 for any period in excess of the PubCo Tax-Related Liabilities for such period), PubCo may, in its sole discretion, use such excess cash amount in such manner, and make such adjustments to or take such other actions with respect to the capitalization of PubCo and the Company, as PubCo (including in its capacity as the Managing Member) in Good Faith determines to be fair and reasonable to the holders of PubCo Shares or other Equity Securities of PubCo and to the Members and to preserve the intended economic effect of this Section 4.1, Section 4.7 and the other provisions hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Earthstone Energy Inc)
