Common use of Certain Prohibited Actions Clause in Contracts

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 Equivalents shall become treasury shares and shall no longer be deemed to be outstanding. Written notice shall be given by the Company to the holders of the redeemable Units or Unit Equivalents at the address of such holders appearing on the books of the Company, which notice shall specify a date for redemption of such Units or Unit Equivalents that shall be not less than ten (10) days nor more than thirty (30) days from the date of such notice. Any Units or Unit Equivalents which have been so called for redemption shall not be deemed outstanding Units or Unit Equivalents after the date on which written notice of redemption has been given to the holders of those Units or Unit Equivalents if a sum sufficient to redeem such Units or Unit Equivalents shall have been irrevocably deposited or set aside to pay the redemption price to the holders of the Units or Unit Equivalents. From and after the applicable redemption date (unless the Company shall default in providing funds for the payment of the redemption price) the Units or Unit Equivalents which have been redeemed by the Company as aforesaid shall become treasury shares, and all rights of the holder of such redeemed Units or Unit Equivalents as a Member of the Company associated with such Units or Unit Equivalents (except the right to receive from the Company the applicable redemption price against delivery to the Company of evidence of ownership of such Units or Unit Equivalents) shall cease. Written notice shall be given by the Company to all holders of Units of any redemption by the Company (including, without limitation, a redemption pursuant to this Section 3.7(c)) not more than ten (10) days after consummation of the applicable redemption, which notice shall specify the number of Units of each class outstanding after such redemption. In the event that any redemption or other action by the Company has resulted in any Member owning such number of Units or Unit Equivalents that is in violation of the provisions of Section 3.5, the Company shall have the right to and shall promptly after confirming such violation, redeem such Units or Unit Equivalents for a price per Unit or Unit Equivalent, as applicable, equal to Fair Market Value, and otherwise pursuant to the provisions of this Section 3.7(c) and subject to Section 3.8.

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(h4.7(o), 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 Equivalents shall become treasury shares and shall no longer be deemed to be outstanding. Written notice shall be given by the Company to the holders of the redeemable Units or Unit Equivalents at the address of such holders appearing on the books of the Company, which notice shall specify a date for redemption of such Units or Unit Equivalents that shall be not less than ten (10) days nor more than thirty (30) days from the date of such notice. Any Units or Unit Equivalents which have been so called for redemption shall not be deemed outstanding Units or Unit Equivalents after the date on which written notice of redemption has been given to the holders of those Units or Unit Equivalents if a sum sufficient to redeem such Units or Unit Equivalents shall have been irrevocably deposited or set aside to pay the redemption price to the holders of the Units or Unit Equivalents. From and after the applicable redemption date (unless the Company shall default in providing funds for the payment of the redemption price) the Units or Unit Equivalents which have been redeemed by the Company as aforesaid shall become treasury shares, and all rights of the holder of such redeemed Units or Unit Equivalents as a Member of the Company associated with such Units or Unit Equivalents (except the right to receive from the Company the applicable redemption price against delivery to the Company of evidence of ownership of such Units or Unit Equivalents) shall cease. Written notice shall be given by the Company to all holders of Units of any redemption by the Company (including, without limitation, a redemption pursuant to this Section 3.7(c)) not more than ten (10) days after consummation of the applicable redemption, which notice shall specify the number of Units of each class outstanding after such redemption. In the event that any redemption or other action by the Company has resulted in any Member owning such number of Units or Unit Equivalents that is in violation of the provisions of Section 3.5, the Company shall have the right to and shall promptly after confirming such violation, redeem such Units or Unit Equivalents for a price per Unit or Unit Equivalent, as applicable, equal to Fair Market Value, and otherwise pursuant to the provisions of this Section 3.7(c) and subject to Section 3.8.