Board Approval Matters. Subject to the provisions of this Agreement, the business, property and affairs of the Company shall be managed and all powers of the Company shall be exercised by or under the direction of the Board of Directors. Except as otherwise expressly provided in this Agreement, the vote of a majority of the directors (at least two of whom must be Xxxxx Designees for so long as the Xxxxx Designees constitute a majority of the Board of Directors) shall constitute the act of the Board of Directors; provided, however, that, without the prior approval of a majority of the directors, which majority shall include at least two Xxxxx Designees, for so long as the Xxxxx Designees constitute a majority of the Board of Directors, and one Management Designee, if any, the Company shall not, and, where applicable, shall not permit any of its Subsidiaries to, directly or indirectly, take or permit to be taken any of the following actions: (a) Increase or decrease the number of members of the Board of Directors of the Company; (b) Except agreements entered into on the Effective Date in connection with the consummation of the transactions contemplated under the Subscription Agreement, enter into any agreement or transaction involving more than $50,000 with (x) a director or any officer of the Company or any of its Subsidiaries or (y) any Stockholder(s) or any of their respective Subsidiaries or Affiliates; provided, however, that subject to compliance by the Company with Section 5.5, this Section 3.2(b) shall not apply to any issuance of securities to Xxxxx or any of his Affiliates on terms that are fair to the Company; (c) Incur indebtedness for borrowed money (excluding intra-company borrowings or renewals or extensions of existing agreements in effect on the Closing Date), where the amount of such indebtedness incurred, together with all other indebtedness for borrowed money of the Company, exceeds 5.5 times the Company’s consolidated cash flows (as determined under the Company’s principal debt documents with s third party) for the four fiscal quarters immediately preceding such determination; provided, that for purposes of determining whether the aggregate amount of such indebtedness incurred exceeds 5.5 times such cash flows, the following indebtedness shall be disregarded: (1) indebtedness to the extent that the proceeds thereof are to be used to refinance or repay, concurrently with or within ten business days of incurrence, any other indebtedness, (2) indebtedness incurred for the sole purpose of making mandatory and scheduled repayments of existing indebtedness which is to be repaid within 12 months of the incurrence of such indebtedness, and (3) indebtedness incurred to pay fees and expenses associated with the raising, renewal or refinancing of any indebtedness which is the subject of this provision; (d) Approve any Sale of any shares of Common Stock by Xxxxx to any Prohibited Transferee prior to the third anniversary of the Closing Date pursuant to Section 4.2(b); (e) Engage in any material business activity outside the scope of the Midstream Business, other than activities reasonably related to the Midstream Business; (f) Approve any individual capital projects or incur any capital expenditures in any transaction or series of related transactions for an amount in excess of $5,000,000 in any calendar year, other than maintenance capital; provided, however, that, for the avoidance of doubt, the foregoing shall not be deemed to apply to any acquisition, directly or indirectly, of any Securities, including any membership interests in MLPGP or any general or limited partner interests in MLP; or (g) Amend or propose, approve, authorize or adopt any amendment to, the Certificate of Incorporation or the Bylaws.
Appears in 1 contract
Board Approval Matters. Subject to the provisions of this Agreement, the business, property and affairs of the Company shall be managed and all powers of the Company shall be exercised by or under the direction of the Board of Directors. Except as otherwise expressly provided in this Agreement, the vote of a majority of the directors (at least two of whom must be Xxxxx Designees for so long as the Xxxxx Designees constitute a majority of the Board of Directors) shall constitute the act of the Board of Directors; provided, however, that, without the prior approval of a majority of the directors, which majority shall include at least two Xxxxx Designees, for so long as the Xxxxx Designees constitute a majority of the Board of Directors, and one Management Designee, if any, the Company shall not, and, where applicable, shall not permit any of its Subsidiaries to, directly or indirectly, take or permit to be taken any of the following actions:
(a) Increase or decrease the number of members of the Board of Directors of the Company;
(b) To the extent such funds are legally available for distribution, fail to declare and pay dividends in respect of any calendar quarter at least equal to the lesser of (i) the Tax Distribution Amount for such calendar quarter and (ii) the amount, if any, by which (x) the aggregate amount of cash and cash equivalents of the Company at the end of such calendar quarter, exceeds (y) the amount of cash reserves that is necessary or appropriate in the reasonable discretion of a majority of the directors (at least two of whom must be Xxxxx Designees for so long as the Xxxxx Designees constitute a majority of the Board of Directors) to (1) provide for the proper conduct of the business of the Company (including reserves for future capital expenditures, for debt prepayments, for anticipated future credit needs of the Company and for anticipated capital contributions to MLPGP) subsequent to such quarter or (2) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which the Company is a party or by which the Company is bound or its assets or property is subject;
(c) Except agreements entered into on the Effective Date in connection with the consummation of the transactions contemplated under the Subscription Agreement, enter into any agreement or transaction involving more than $50,000 with (x) a director or any officer of the Company or any of its Subsidiaries or (y) any Stockholder(s) or any of their respective Subsidiaries or Affiliates; provided, however, that subject to compliance by the Company with Section 5.5, this Section 3.2(b3.2(c) shall not apply to any issuance of securities to Xxxxx or any of his Affiliates on terms that are fair to the CompanyCompany or pursuant to Section 10.6 of the Subscription Agreement;
(cd) Incur indebtedness for borrowed money (excluding intra-company borrowings or renewals or extensions of existing agreements in effect on the Closing Date), where the amount of such indebtedness incurred, together with all other indebtedness for borrowed money of the Company, exceeds 5.5 times the Company’s consolidated cash flows (as determined under the Company’s principal debt documents with s third party) for the four fiscal quarters immediately preceding such determination; provided, that for purposes of determining whether the aggregate amount of such indebtedness incurred exceeds 5.5 times such cash flows, the following indebtedness shall be disregarded: (1) indebtedness to the extent that the proceeds thereof are to be used to refinance or repay, concurrently with or within ten business days of incurrence, any other indebtedness, (2) indebtedness incurred for the sole purpose of making mandatory and scheduled repayments of existing indebtedness which is to be repaid within 12 months of the incurrence of such indebtedness, and (3) indebtedness incurred to pay fees and expenses associated with the raising, renewal or refinancing of any indebtedness which is the subject of this provision;
(de) Approve any Sale of any shares of Common Stock by Xxxxx to any Prohibited Transferee prior to the third anniversary of the Closing Date pursuant to Section 4.2(b);
(ef) Engage in any material business activity outside the scope of the Midstream BusinessBusiness (as defined in the Exclusivity Agreement), other than activities reasonably related to the Midstream Business;
(fg) Approve any individual capital projects or incur any capital expenditures in any transaction or series of related transactions for an amount in excess of $5,000,000 in any calendar year, other than maintenance capital; provided, however, that, for the avoidance of doubt, the foregoing shall not be deemed to apply to any acquisition, directly or indirectly, of any Securities, including any membership interests in MLPGP or any general or limited partner interests in MLP; or
(gh) Amend or propose, approve, authorize or adopt any amendment to, the Certificate of Incorporation or the Bylaws.
Appears in 1 contract
Board Approval Matters. Subject to the provisions of this Agreement, the business, property and affairs of the Company shall be managed and all powers of the Company shall be exercised by or under the direction of the Board of Directors. Except as otherwise expressly provided in by this AgreementAgreement (including this Section 6.2.2), the an affirmative vote of by a simple majority of the directors (at least two of whom must Managers shall be Xxxxx Designees for so long as considered the Xxxxx Designees constitute a majority action of the Board of Directors) shall constitute Board. Notwithstanding anything to the act of the Board of Directors; provided, however, thatcontrary contained in Section 6.1 and this Section 6.2, without the prior approval of a majority Supermajority of the directorsManagers, which majority shall include at least two Xxxxx Designees, for so long as the Xxxxx Designees constitute a majority of the Board of Directors, and one Management Designee, if any, the Company shall not, and, where applicable, shall not permit any of its Subsidiaries have the power or authority to, directly or indirectly, take or permit to be taken any of the following actions:
(a) Increase or decrease the number of members of appoint any director to the Board of Directors a Subsidiary of the Company except as set forth in Section 9.8, or provide the Company’s consent to any matter requiring the Company’s consent under Section 9.8 with respect to a Subsidiary of the Company if such matter would require the approval of a Supermajority of Managers if the matter in question were with respect to the Company;
(b) Except agreements entered into dissolve and wind up the Company;
(c) dissolve and wind up any of the Company’s Subsidiaries;
(d) knowingly do any act that would make it impossible to carry on the Effective Date Business, except as otherwise provided in connection with the consummation this Agreement;
(e) possess property of the transactions contemplated under Company or its Subsidiaries, or assign rights in specific property of the Subscription AgreementCompany or its Subsidiaries, enter for other than a Company purpose or a purpose of such Subsidiary;
(f) authorize the issuance or sale, or agree to issue or sell, to any Person (A) any equity interests of the Company or any of its Subsidiaries, including any rights, options or warrants to acquire any such interests, or any securities convertible into or exchangeable or exercisable for such interests, (B) any securities, the provisions of which, by their terms, set or provide a mandatory formula for determining, directly or indirectly, the participation in earnings and profits of the Company or any of its Subsidiaries or (C) any securities which are convertible into or exchangeable or exercisable for securities described in this subsection (f);
(g) authorize any split, combination or reclassification of any equity interests of the Company or its Subsidiaries or authorize the issuance of any other securities in respect of, in lieu of or in substitution for equity interests in the Company or its Subsidiaries;
(h) authorize the redemption, repurchase, retirement or other acquisition for value any of the equity interests of the Company or any of its Subsidiaries;
(i) approve any agreement or transaction involving more than $50,000 with or for the benefit of (x) a director Manager or any officer of the Company or any of its Subsidiaries Subsidiaries, or (y) any Stockholder(s) Member(s), or any of their respective Affiliates;
(j) to the extent not set forth in the Annual Budget, approve the compensation of any employees, officers, or independent contractors of the Company or its Subsidiaries or Affiliates; provided, however, that in excess of $200,000;
(k) to the extent not set forth in the Annual Budget and subject to compliance by the requirements of Section 9.10, authorize, with respect to the Company with Section 5.5, this Section 3.2(b) shall not apply to any issuance of securities to Xxxxx or any of his Affiliates on terms that are fair its Subsidiaries, (i) the incurrence or assumption of any long-term debt or, except in the ordinary course of business, the incurrence or assumption of short-term indebtedness exceeding $250,000 in the aggregate, (ii) the assumption, guarantee, endorsement or otherwise becoming liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except in the ordinary course of business and consistent with industry practice, or (iii) entry into any agreement to maintain the financial statement condition of any Person;
(l) authorize the sale of all or substantially all of the assets of the Company;
(cm) Incur indebtedness for borrowed money agree to a Conveyance Triggering Event regarding the Company;
(excluding intra-company borrowings n) sell all or renewals or extensions substantially all of existing agreements in effect on the Closing Date), where the amount assets of such indebtedness incurred, together with all other indebtedness for borrowed money any of the Company, exceeds 5.5 times the Company’s consolidated cash flows (as determined under the Company’s principal debt documents with s third party) for the four fiscal quarters immediately preceding such determination; provided, that for purposes of determining whether the aggregate amount of such indebtedness incurred exceeds 5.5 times such cash flows, the following indebtedness shall be disregarded: (1) indebtedness to the extent that the proceeds thereof are to be used to refinance or repay, concurrently with or within ten business days of incurrence, any other indebtedness, (2) indebtedness incurred for the sole purpose of making mandatory and scheduled repayments of existing indebtedness which is to be repaid within 12 months of the incurrence of such indebtedness, and (3) indebtedness incurred to pay fees and expenses associated with the raising, renewal or refinancing of any indebtedness which is the subject of this provisionSubsidiaries;
(do) Approve any Sale authorize the acquisition of the equity or assets of any shares of Common Stock by Xxxxx to any Prohibited Transferee prior to the third anniversary of the Closing Date pursuant to Section 4.2(b)other Person;
(ep) Engage in any material business activity outside terminate or amend the scope FNHC Services Agreement, or authorize the non-renewal of the Midstream Business, other than activities reasonably related FNHC Services Agreement if such renewal includes no material change to the Midstream Businessterms of the agreement;
(fq) Approve any individual capital projects terminate or incur any capital expenditures in any transaction amend the Crosswinds Services Agreement, or series authorize the non-renewal of related transactions for an amount in excess the Crosswinds Services Agreement if such renewal includes no material change to the terms of $5,000,000 in any calendar year, other than maintenance capital; provided, however, that, for the avoidance of doubt, the foregoing shall not be deemed to apply to any acquisition, directly or indirectly, of any Securities, including any membership interests in MLPGP or any general or limited partner interests in MLPagreement; or
(gr) Amend or propose, approve, authorize or adopt any amendment to, the Certificate of Incorporation or the Bylawsapprove an exit strategy pursuant to Section 9.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Federated National Holding Co)
Board Approval Matters. Subject to Except as otherwise provided by this Agreement (including this Section 6.2.2), an affirmative vote by a simple majority of the Managers shall be considered the action of the Board. Notwithstanding any other provisions of this Agreement, if at any time the businessInvestors are entitled to appoint a designee to the Board, property and affairs of the Board shall not have authority hereunder to cause the Company shall be managed and all powers or any of the Company shall be exercised by or under the direction of the Board of Directors. Except as otherwise expressly provided in this Agreement, the vote of a majority of the directors (at least two of whom must be Xxxxx Designees for so long as the Xxxxx Designees constitute a majority of the Board of Directors) shall constitute the act of the Board of Directors; provided, however, that, without the prior approval of a majority of the directors, which majority shall include at least two Xxxxx Designees, for so long as the Xxxxx Designees constitute a majority of the Board of Directors, and one Management Designeeits subsidiaries, if any, to engage in the Company shall not, and, where applicable, shall not permit any following transactions without first obtaining the affirmative vote of its Subsidiaries to, directly or indirectly, take or permit to be taken any a Super-Majority of the following actionsBoard:
(a) Increase Terminate, amend or decrease propose, approve, authorize or adopt any termination or amendment to, the number Certificate of members Formation or the ECC;
(b) Except for Conveyance Triggering Events, redeem, repurchase, retire or otherwise acquire for value any of the Board of Directors equity interests of the Company;
(bc) Except agreements entered into on the Effective Date in connection with the consummation of the transactions contemplated under the Subscription Agreement, enter Enter into any agreement or transaction involving more than $50,000 with or for the benefit of (xi) a director Manager or any officer of the Company or any of its Subsidiaries subsidiaries, if any, or (yii) any Stockholder(s) Member(s), or any of their respective Subsidiaries subsidiaries or Affiliates; provided;
(d) Take any action to effect the dissolution, howeverliquidation, that subject to compliance by merger, consolidation, other business combination or sale of all or substantially all the assets of the Company with Section 5.5, this Section 3.2(b) shall not apply to any issuance of securities to Xxxxx or any of his Affiliates on terms that are fair its subsidiaries, if any, or enter into any agreement contemplating any of the foregoing;
(e) File a petition under the laws of the United States of America or any other insolvency law, or admit in writing its bankruptcy, insolvency or general inability to pay its debts;
(f) Appoint a liquidator of the Company in the event of the dissolution of the Company;
(cg) Incur indebtedness for borrowed money (excluding intra-company borrowings or renewals or extensions of existing agreements Except as provided in effect on the Closing Date)Section 3.2.2 and subject to Section 3.2.3, where the amount of such indebtedness incurred, together with all other indebtedness for borrowed money of the Company, exceeds 5.5 times the Company’s consolidated cash flows (as determined under the Company’s principal debt documents with s third party) for the four fiscal quarters immediately preceding such determination; provided, that for purposes of determining whether the aggregate amount of such indebtedness incurred exceeds 5.5 times such cash flows, the following indebtedness shall be disregarded: (1) indebtedness to the extent that the proceeds thereof are to be used to refinance or repay, concurrently with or within ten business days of incurrence, require any other indebtedness, (2) indebtedness incurred for the sole purpose of making mandatory and scheduled repayments of existing indebtedness which is to be repaid within 12 months of the incurrence of such indebtedness, and (3) indebtedness incurred to pay fees and expenses associated with the raising, renewal or refinancing of any indebtedness which is the subject of this provisionAdditional Capital Contributions;
(dh) Approve any Sale of any shares of Common Stock by Xxxxx Dispose of, or assign ownership rights to any Prohibited Transferee prior to the third anniversary Person, any assets of the Closing Date pursuant to Section 4.2(b);
(e) Engage in Company for any material business activity outside the scope of the Midstream Business, purpose other than activities reasonably related to the Midstream Business;
(f) Approve any individual capital projects or incur any capital expenditures in any transaction or series of related transactions for an amount in excess of $5,000,000 in any calendar year, other than maintenance capital; provided, however, that, for the avoidance of doubt, the foregoing shall not be deemed to apply to any acquisition, directly or indirectly, of any Securities, including any membership interests in MLPGP or any general or limited partner interests in MLP; or
(gi) Amend or proposeAgree to do any of the foregoing. Portions herein identified by [*****] have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, approve, authorize or adopt any amendment to, as amended. A complete copy of this document has been filed separately with the Certificate of Incorporation or the BylawsSecurities and Exchange Commission.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Intrexon Corp)
