Certain Prohibited Actions. (a) As set forth in Section 10.1(c), any Transfer or attempted Transfer of any Units or Unit Equivalents in violation of any provisions of this Agreement shall be null and void, no such Transfer shall be recorded on the Company’s books and the purported Transferee in any such Transfer shall not be treated (and the purported Transferor shall continue be treated) as the owner of such Units or Unit Equivalents for all purposes of this Agreement, including without limitation, voting, payment of dividends and distributions with respect to such Units whether upon liquidation or otherwise.
(b) As set forth in Section 4.7(h), if any Member purports to vote, or to grant any proxy or enter into any agreement, plan or other arrangement relating to the voting of, Units that would violate the provisions of this Agreement, then the Company shall not honor such vote, proxy, agreement, plan or other arrangement to the extent that such provisions would be violated, and any Units subject to that arrangement shall not be entitled to be voted to the extent of such violation.
(c) Subject to Sections 3.7(a) and 3.7(b), commencing on the Registration Date and for so long as the Company Controls, directly or indirectly, MEMX LLC, if any Member purports to Transfer any Units or Unit Equivalents and such Transfer results in a violation of Section 3.5, then the Company shall have the right to, and shall promptly after confirming such violation and to the extent funds are legally available, redeem all of the Units or Unit Equivalents the holding of which by the holder thereof results in a violation of Section 3.5 for a price per Unit or Unit Equivalent, as applicable, equal to the Fair Market Value of such Units or Unit Equivalents; provided, that if either such Member or such holder has received written notice from the Company prior to such Transfer, or a director or officer of such Member (if an entity) or such Member (if an individual) is otherwise actually aware, that such Transfer will result in a violation of Section 3.5, such applicable Units or Unit Equivalents shall be redeemed for a price per Unit or Unit Equivalent, as applicable, equal to the lesser of (a) book value or (b) Fair Market Value of such Units or Unit Equivalents. The number of Units or Unit Equivalents to be redeemed by the Company pursuant to the preceding sentence shall be calculated by the Company after taking into account the fact that immediately upon their redemption such redeemed Units or Unit Equivale...
Certain Prohibited Actions. (a) Unless approved in advance in writing by the board of directors of Midland (the “Board”), each Shareholder agrees that neither he nor any of his Representatives acting on behalf of or in concert with the Shareholder (or any of his Representatives) will, until the Expiration Date, as defined below, directly or indirectly:
(i) make any proposal to the Board, any of Midland’s Representatives or any of Midland’s shareholders regarding, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media): (A) any business combination, merger, tender offer, exchange offer or similar transaction involving Midland or any of its Subsidiaries; (B) any restructuring, recapitalization, liquidation or similar transaction involving Midland or any of its Subsidiaries; (C) any acquisition of any of Midland’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of Midland’s loans, debt securities, equity securities or assets; (D) except with respect to the representation described in the Merger Agreement, any proposal to seek representation on the Board or otherwise seek to control or influence the management, board of directors or policies of any of Midland or its Subsidiaries; (E) any request or proposal to waive, terminate or amend the provisions of this Agreement; or (F) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this Section 4;
(ii) instigate, encourage or assist any third party (including forming a “group,” as defined under the Exchange Act (a “Group”), with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in this Section 4;
(iii) take any action which would reasonably be expected to require Midland or any of its Affiliates or Representatives to make a public announcement regarding any of the actions set forth in this Section 4; or
(iv) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities or assets of Midland or any of its Subsidiaries, or rights or options to acqu...
Certain Prohibited Actions. The Company shall not, and shall not permit any of its Subsidiaries to, agree, authorize or enter into any commitment to take any action described in the foregoing subsections (a)-(k) of this Section 5.1, except as otherwise permitted by this Agreement.
Certain Prohibited Actions. Without limiting the generality of Section 5.01(a), except (x) for matters set forth in Section 5.01(b) of the Company Disclosure Letter or as otherwise expressly permitted or expressly contemplated or required by this Agreement, or for matters required by a Governmental Authority or by applicable Law, or (y) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with the terms hereof, the Company shall not, and shall cause each Company Subsidiary to not, do any of the following:
(i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property or any combination thereof) in respect of, any of its Equity Securities, except for dividends and distributions by a direct or indirect Company Subsidiary to the Company or another Company Subsidiary;
(ii) amend any of its Organizational Documents as in effect on the date hereof, except as may be required by Law;
(iii) except for a transaction by a wholly owned Company Subsidiary that remains a wholly owned Company Subsidiary after consummation of such transaction, split, combine, consolidate, subdivide, reclassify or otherwise amend the terms of any of its Equity Securities or securities convertible into or exchangeable or exercisable for Equity Securities, or, except as permitted by Section 5.01(b)(v), issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its Equity Securities;
(iv) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any Equity Securities of any Company Entity convertible into or exchangeable or exercisable for Equity Securities of any Company Entity, or any warrants, calls, options or other rights to acquire any such Equity Securities, except for (A) the acquisition by the Company of Company Shares in connection with the surrender of Company Shares by holders of Company Options outstanding as of the date of this Agreement in order to pay the exercise price thereof, (B) the withholding of Company Shares to satisfy Tax obligations with respect to the exercise, vesting or settlement of Company Equity Awards outstanding as of the date of this Agreement and (C) the acquisition by the Company of Company Equity Awards outstanding as of the date of this Agreem...
Certain Prohibited Actions. Borrower shall not directly or indirectly do any of the following: (i) change its principal place of business or chief executive office without first giving Lender thirty (30) days’ prior notice; (ii) cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business in its reasonable judgment; (iii) Transfer any License required for the operation of the Property; or (iv) maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of Borrower to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan or any Welfare Plan or permit the assets of Borrower to become “plan assets,” whether by operation of law or under regulations promulgated under ERISA.
Certain Prohibited Actions. None of the Borrower, any Subsidiary or any Related Professional Corporation, nor any of their respective partners, members, stockholders, officers or directors, acting on behalf of the Borrower, any Subsidiary or any Related Professional Corporation, has engaged on behalf of the Borrower, any Subsidiary or any Related Professional Corporation in any activities that are prohibited under the Health Insurance Portability and Accountability Act of 1996 set forth at 45 C.F.R. §§ 160.101 et seq. and 164.102 et seq., 42 U.S.C. § 1320a-7, 42 U.S.C. § 1320a-7a, 42 U.S.C. § 1320a-7b, 42 U.S.C. § 1395nn, 31 U.S.C. § 3729 et seq., or the regulations promulgated thereunder, or related Law, or under any similar state law or regulation except for such activities that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Certain Prohibited Actions. (a) Each of FTX and FCX covenants that it shall comply with Section 5.01(b), to the extent that the prohibited actions specified therein apply to it, unless it shall have first (i) obtained either an opinion of nationally recognized tax counsel or a supplemental private letter ruling from the Internal Revenue Service, stating that the contemplated actions would not adversely affect the tax-free nature of the Distribution or the ability of FTX to rely on the Ruling, (ii) presented such opinion of counsel or supplemental private letter ruling to the other party, and (iii) described all material aspects of the contemplated actions to such other party.
(i) FTX and FCX shall not initiate or support any action during the Five-Year Period that would in any way change the ability of the holders of the Class B Common Stock to elect at least 80% of the members of the FCX Board and the ability of the holders of the Class A Common Stock and the Preferred Stock, voting together as a single class, to elect the remaining members of the FCX Board, including, without limitation, voting to combine the Class A Common Stock and the Class B Common Stock. In addition, FCX shall not permit its shareholders to vote during the Five-Year Period to change the described voting structure.
(ii) During the Two-Year Period, FCX shall not issue shares of any preferred stock that would not entitle the holders to vote together with the Class A Common Stock and the existing classes of Preferred Stock in the election of certain members of the FCX Board.
(iii) During the Two-Year Period, FCX shall not dispose of any of the common stock of PT-FI, subordinated promissory notes of PT-FI or production payment loans of PT-FI that it holds on the Distribution Date.
(iv) FCX shall use its best efforts to cause PT-FI to (A) remain the operator under the Contract of Work dated December 30, 1991 between PT-FI and the Government of the Republic of Indonesia, and (B) continue the conduct of its copper and gold business in a substantially unchanged manner during the Two-Year Period as such business is operated prior thereto and to use its business assets in such business; provided that any transaction contemplated or described in or in connection with the following agreements shall not be taken into account for the purposes of this Section 5.01(b)(iv): (I) the Implementation Agreement, (II) the Participation Agreement between PT-FI and an Indonesia limited liability company to be formed as a wholly owned s...
Certain Prohibited Actions. Borrower will not directly or indirectly do any of the following: (a) change its principal place of business or chief executive office without first giving Lender 30 days’ prior notice, (b) make any change, amendment, or modification to the organizational documents of Borrower, or otherwise take any action that could result in Borrower not being a Special Purpose Bankruptcy Remote Entity, (c) cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business in its reasonable judgment, (d) create, incur or assume any indebtedness secured by the Property other than the Debt, Permitted FF&E Financing and unsecured trade payables incurred in the ordinary course of business relating to the ownership and operation of the Property which do not exceed, at any time, a maximum amount of one percent of the original amount of the Principal and are not evidenced by a promissory note and are paid when due, but in no event no more than 30 days of the date incurred (collectively, “Permitted Indebtedness”), (e) transfer any License required for the operation of the Property, except to the extent required by a Governmental Authority (unless such requirement is on account of Borrower’s failure to abide by the terms of such License or is otherwise the result of the negligence or intentional misconduct of Borrower or its agents or contractors), or (f) maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of Borrower to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan or any Welfare Plan or permit the assets of Borrower to become “plan assets,” whether by operation of law or under regulations promulgated under ERISA.
Certain Prohibited Actions. Until the payment or satisfaction in full of the Senior Debt, without the prior written consent of the Senior Holders:
(a) no Subordinated Creditor shall from and after the date hereof request, demand or seek to obtain from the Company, and the Company shall not grant or deliver to the Subordinated Creditor, any collateral or other security for the Subordinated Debt (the parties hereto acknowledge that this clause (a) does not require the Subordinated Creditors to terminate the liens granted prior to this date under the Subordinated Documents);
(b) no Subordinated Creditor shall (i) accelerate the maturity of any Subordinated Debt, (ii) demand payment of any Subordinated Debt or (iii) exercise any right or remedy, or take any action, against the Company or any of the assets or property of the Company to enforce its rights with respect to any Subordinated Debt;
(c) no Subordinated Creditor will amend or modify any of the terms of any of the Subordinated Debt or any of the Subordinated Documents in a manner that is materially adverse to the interests of the Senior Holders (including those interests relating to the Senior Documents and the transactions contemplated by the Letter of Intent), provided, however, that the Subordinated Creditors shall provide the Senior Holders at least five business days' prior notice of any proposed amendment or modification to afford the Senior Holders an opportunity to object to such proposed amendment or modification as being materially adverse to their interests; and
(d) no Subordinated Creditor shall sell, assign or otherwise transfer or further encumber any Subordinated Debt or interest therein without first procuring and delivering to the Senior Holders evidence in writing of the consent and agreement of the purchaser, pledgee, assignee or transferee of such Subordinated Debt or interest therein to comply with all terms, conditions and provisions of this Subordination Agreement. The rights of the Senior Holders under this Section 6 shall inure to the benefit of their successors and assigns.
Certain Prohibited Actions. (a) The Company shall not (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, (ii) split, combine or reclassify any of its capital stock or issue or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (iii) purchase, redeem, retire or otherwise acquire any shares of its capital stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, other than as required pursuant to the provisions of the employee stock option plan of the Company as in effect prior to the date hereof.
(b) The Company shall not issue, deliver, sell, pledge otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire any such shares, voting securities or convertible securities, other than pursuant to options outstanding prior to the date hereof to purchase Common Stock under the employee stock option plan of the Company as in effect prior to the date hereof.
