Initial Members The initial members of the LLC, their initial capital contributions, and their percentage interest in the LLC are: Initial Percentage Interest Capital Members in LLC Contribution
Designees (a) Upon the closing of the IPO, the Board shall consist of 8 directors, including Xxxxxxx X. Xxxxx, Xxxxxx “Xxx” XxXxxx, Xxxx Spender, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx-Xxxxxxxx. The Board will be divided into three classes of directors, with each class as equal in number as possible, serving staggered three-year terms as set forth in the Certificate of Incorporation, and such directors will be removable only for “cause” as set forth in the Certificate of Incorporation.
(b) Following the closing of the IPO, BCP shall have the right, but not the obligation, to nominate to the Board a number of designees equal to at least: (i) a majority of the Total Number of Directors, so long as BCP Beneficially Owns 50% or more of the outstanding shares of Common Stock; (ii) 40% of the Total Number of Directors, in the event that BCP Beneficially Owns 40% or more, but less than 50%, of the outstanding shares of Common Stock; (iii) 30% of the Total Number of Directors, in the event that BCP Beneficially Owns 30% or more, but less than 40%, of the outstanding shares of Common Stock; (iv) 20% of the Total Number of Directors, in the event that BCP Beneficially Owns 20% or more, but less than 30%, of the outstanding shares of Common Stock; and (v) 10% of the Total Number of Directors, in the event that BCP Beneficially Owns 5% or more, but less than 20%, of the outstanding shares of Common Stock. If BCP Beneficially Owns less than 5% of the outstanding shares of Common Stock, it shall not be entitled to designate a nominee. For purposes of calculating the number of directors that BCP is entitled to designate pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up to the nearest whole number (e.g., one and one quarter (11/4) directors shall equate to two (2) directors), and any such calculations shall be made after taking into account any increase in the Total Number of Directors.
(c) In the event that BCP has nominated less than the total number of designees BCP shall be entitled to nominate pursuant to Section 2.1(b), BCP shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case the Company and the directors shall take all Necessary Action, to the fullest extent permitted by applicable Law (including with respect to fiduciary duties under Delaware law), to (x) enable BCP to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board or otherwise, and (y) designate such additional individuals nominated by BCP to fill such newly-created vacancies or to fill any other existing vacancies. Each such individual whom BCP shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a director shall be referred to herein as a “BCP Director.”
(d) CEP Holdings shall have the right, but not the obligation, to nominate Xxxxxxx X. Xxxxx to the Board for so long as CEP Holdings Beneficially Owns at least 10% or more of the outstanding shares of Common Stock or Xxxxxxx X. Xxxxx holds the title of Chief Executive Officer of the Company. For the avoidance of doubt, the rights granted to BCP to designate members of the Board are additive to, and not intended to limit in any way, the rights that BCP or its Affiliates may have to nominate, elect or remove directors under the Company’s Certificate of Incorporation, Bylaws or the General Corporation Law of the State of Delaware. The Company agrees, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), to take all Necessary Action to effectuate the above by; (A) including the persons designated pursuant to this Section 2.1 in the slate of nominees recommended by the Board for election at any meeting of stockholders called for the purpose of electing directors, (B) nominating and recommending each such individual to be elected as a director as provided herein, (C) soliciting proxies or consents in favor thereof, and (D) without limiting the foregoing, otherwise using its reasonable best efforts to cause such nominees to be elected to the Board, including providing at least as high a level of support for the election of such nominees as it provides to any other individual standing for election as a director. The Company is entitled to identify such individual(s) nominated pursuant to Section 2.1(b) as a BCP Director pursuant to this Agreement.
(e) At any time the members of the Board are allocated among separate classes of directors, to the fullest extent permitted by law, (i) the BCP Directors shall be in different classes of directors to the extent practicable and (ii) the Company shall consult with BCP regarding the class or classes of directors to which the BCP Directors shall be designated and the Company and the Principal Stockholders shall take all Necessary Action, including using their reasonable best efforts, to cause the BCP Directors to be designated to the class or classes requested by BCP.
(f) So long as BCP is entitled to designate one or more nominees pursuant to Section 2.1(b), BCP shall have the right to request the removal of any BCP Director (with or without cause) nominated by BCP, from time to time and at any time, from the Board, exercisable upon written notice to the Company, and the Company and the Principal Stockholders shall take all Necessary Action to cause such removal.
(g) So long as BCP Beneficially Owns at least 10% of the outstanding shares of Common Stock, the Company shall take all Necessary Action to cause any committee of the Board to include in its membership at least one BCP Director, except to the extent that such membership would violate applicable securities laws or stock exchange or stock market rules.
(h) Nothing in this Section 2.1 shall be deemed to require that any party hereto, or any Affiliate thereof, act or be in violation of any applicable provision of law, regulation, legal duty or requirement or stock exchange or stock market rule.
(i) In the event that a vacancy is created on the Board at any time by the death, disability, resignation or removal (whether by BCP or otherwise in accordance with the Company’s Certificate of Incorporation and Bylaws, as either may be amended or restated from time to time) of a BCP Director, BCP shall be entitled to designate an individual to fill the vacancy so long as the total number of persons that will serve on the Board as BCP Directors immediately following the filling of such vacancy will not exceed the total number of persons BCP is entitled to designate pursuant to Section 2.1(b) on the date of such replacement designation. The Company and the Principal Stockholders shall take all Necessary Action to cause such replacement BCP Director to become a member of the Board.
(j) In the event that the number of nominees that BCP is entitled to designate pursuant to Section 2.1(a) decreases below the number of BCP Directors then on the Board, to the extent requested by the nominating and corporate governance committee, BCP shall promptly cause a number of BCP Directors to resign from service on the Board (and all committees thereof on which such BCP Director serves) so that the number of BCP Directors is no greater than the number of nominees BCP is entitled to designate pursuant to Section 2.1(b), and promptly thereafter the Company shall take all Necessary Action to cause the Board to cause the size of the Board to decrease by such number and to remove such BCP Director from office.
Right to Acquire Limited Partner Interests (a) Notwithstanding any other provision of this Agreement, if at any time the General Partner and its Affiliates hold more than 80% of the total Limited Partner Interests of any class then Outstanding, the General Partner shall then have the right, which right it may assign and transfer in whole or in part to the Partnership or any Affiliate of the General Partner, exercisable at its option, to purchase all, but not less than all, of such Limited Partner Interests of such class then Outstanding held by Persons other than the General Partner and its Affiliates, at the greater of (x) the Current Market Price as of the date three days prior to the date that the notice described in Section 15.1(b) is mailed and (y) the highest price paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased during the 90-day period preceding the date that the notice described in Section 15.1(b) is mailed. As used in this Agreement, (i) “Current Market Price” as of any date of any class of Limited Partner Interests means the average of the daily Closing Prices (as hereinafter defined) per Limited Partner Interest of such class for the 20 consecutive Trading Days (as hereinafter defined) immediately prior to such date; (ii) “Closing Price” for any day means the last sale price on such day, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices on such day, regular way, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal National Securities Exchange (other than the Nasdaq Stock Market) on which such Limited Partner Interests are listed or admitted to trading or, if such Limited Partner Interests of such class are not listed or admitted to trading on any National Securities Exchange (other than the Nasdaq Stock Market), the last quoted price on such day or, if not so quoted, the average of the high bid and low asked prices on such day in the over-the-counter market, as reported by the Nasdaq Stock Market or such other system then in use, or, if on any such day such Limited Partner Interests of such class are not quoted by any such organization, the average of the closing bid and asked prices on such day as furnished by a professional market maker making a market in such Limited Partner Interests of such class selected by the General Partner, or if on any such day no market maker is making a market in such Limited Partner Interests of such class, the fair value of such Limited Partner Interests on such day as determined by the General Partner; and (iii) “Trading Day” means a day on which the principal National Securities Exchange on which such Limited Partner Interests of any class are listed or admitted for trading is open for the transaction of business or, if Limited Partner Interests of a class are not listed or admitted for trading on any National Securities Exchange, a day on which banking institutions in New York City generally are open.
Members (a) A Person shall be admitted as a Member and shall become bound by, and shall be deemed to have agreed to be bound by, the terms of this Agreement if such Person purchases or otherwise lawfully acquires any Share, and such Person shall become the Record Holder of such Share, in accordance with the provisions of this Agreement. A Member may be a Class A Member and or a Class B Member, and, in such case, shall have the rights and obligation accorded to the Class A Ordinary Shares with respect to such Class A Ordinary Shares and the rights and obligations accorded to the Class B Ordinary Shares with respect to such Class B Ordinary Shares. A Person may become a Record Holder without the consent or approval of any of the Members and without physical execution of this Agreement. A Person may not become a Member without acquiring a Share.
(b) The name and mailing address of each Member or such Member’s representative shall be listed on the books and records of the Company maintained for such purpose by the Company or the Transfer Agent.
(c) Except as otherwise provided in the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Members shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company.
(d) Except to the extent expressly provided in this Agreement: (i) no Member shall be entitled to the withdrawal or return of any Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon dissolution of the Company may be considered as such by law and then only to the extent provided for in this Agreement; (ii) no Member shall have priority over any other Member either as to the return of Capital Contributions or as to profits, losses or distributions; (iii) no interest shall be paid by the Company on Capital Contributions; and (iv) no Member, in its capacity as such, shall participate in the operation or management of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company by reason of being a Member.
(e) Any Member shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, including business interests and activities in direct competition with the Company. Neither the Company nor any of the other Members shall have any rights by virtue of this Agreement in any such business interests or activities of any Member.
Investors During the Escrow Period, Investors will be instructed by the Dealer Manager or any Soliciting Dealers to remit the purchase price in the form of checks payable to the order of, or funds wired in favor of, “UMB Bank, N.A., as escrow agent for Resource Apartment REIT III, Inc.” Notwithstanding the foregoing, however, Pennsylvania Investors, Washington Investors and New York Investors shall continue to make checks payable to the order of “UMB Bank, N.A., as escrow agent for Resource Apartment REIT III, Inc.” until, respectively, the Pennsylvania Minimum Offering, the Washington Minimum Offering or the New York Minimum Offering is raised. Any checks made payable to a party other than the Escrow Agent shall be returned to the Dealer Manager or Soliciting Dealer that submitted the check. By 12:00 p.m. (EST) of the next business day following the receipt of instruments of payment from the Offering, the Company or the Dealer Manager, as applicable, shall furnish the Escrow Agent with a list of the Investors who have paid for the Securities showing the name, address, tax identification number, the amount of Securities subscribed for purchase, the amount paid and whether such Investors are Pennsylvania Investors, Washington Investors or New York Investors. The information comprising the identity of Investors shall be provided to the Escrow Agent in substantially the format set forth in the list of Investors attached hereto as Exhibit A (the “List of Investors”). The Escrow Agent shall be entitled to conclusively rely upon the List of Investors in determining whether Investors are Pennsylvania Investors, Washington Investors or New York Investors and shall have no duty to independently determine or verify the same. When a Soliciting Dealer’s internal supervisory procedures are conducted at the site at which the subscription agreement and the check for the purchase of Securities were initially received by Soliciting Dealer from the subscriber, such Soliciting Dealer shall transmit the subscription agreement and such check to the Escrow Agent by the end of the next business day following receipt of the check for the purchase of Securities and subscription agreement. When, pursuant to such Soliciting Dealer’s internal supervisory procedures, such Soliciting Dealer’s final internal supervisory procedures are conducted at a different location (the “Final Review Office”), such Soliciting Dealer shall transmit the check for the purchase of Securities and subscription agreement to the Final Review Office by the end of the next business day following Soliciting Dealer’s receipt of the subscription agreement and the check for the purchase of Securities. The Final Review Office will, by the end of the next business day following its receipt of the subscription agreement and the check for the purchase of Securities, forward both the subscription agreement and such check to the Escrow Agent. If any subscription agreement solicited by a Soliciting Dealer is rejected by the Dealer Manager or the Company, then the subscription agreement and check for the purchase of Securities will be returned to the rejected subscriber within ten (10) business days from the date of rejection. All Investor Funds deposited in the Escrow Account shall not be subject to any liens or charges by the Company or the Escrow Agent, or judgments or creditors’ claims against the Company, until and unless released to the Company as hereinafter provided. The Company understands and agrees that the Company shall not be entitled to any Investor Funds on deposit in the Escrow Account and no such funds shall become the property of the Company, or any other entity except as released to the Company pursuant to Sections 3, 4, 5 or 6 hereto. The Escrow Agent will not use the information provided to it by the Company for any purpose other than to fulfill its obligations as Escrow Agent hereunder. The Company and the Escrow Agent will treat all Investor information as confidential. The Escrow Agent shall not be required to accept any Investor Funds which are not accompanied by the information on the List of Investors.
Initial Directors The first director of Amalco shall be the person whose name and residential address appear below: Xxxxxx Xxxx 0X Xxxxxxx Xxx Xxxxx 0000, Xxxxxxx, XX, X0X 0X0 The above directors will hold office from the Effective Date until the first annual meeting of shareholders of Amalco or until their successors are elected or appointed.
Additional Stockholders In connection with the issuance of any additional equity securities of the Company to any Person, the Company may permit such Person to become a party to this Agreement and succeed to all of the rights and obligations of a "Stockholder" under this Agreement by obtaining the consent of the holders of a majority of the Common Stockholder Shares and an executed counterpart signature page to this Agreement, and, upon such execution, such Person shall for all purposes be a "Stockholder" party to this Agreement.
Services to the Corporation Agent will serve, at the will of the Corporation or under separate contract, if any such contract exists, as a director of the Corporation or as a director, officer or other fiduciary of an affiliate of the Corporation (including any employee benefit plan of the Corporation) faithfully and to the best of his ability so long as he is duly elected and qualified in accordance with the provisions of the Bylaws or other applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any time and for any reason resign from such position (subject to any contractual obligation that Agent may have assumed apart from this Agreement) and that the Corporation or any affiliate shall have no obligation under this Agreement to continue Agent in any such position.
Initial Capital Contribution and Ownership The Trust Beneficial Owner has paid or has caused to be paid to, or to an account at the direction of, the Trustee, on the date hereof, the sum of $15 (or, in the case of Notes issued with original issue discount, such amount multiplied by the issue price of the Notes). The Trustee hereby acknowledges receipt in trust from the Trust Beneficial Owner, as of the date hereof, of the foregoing contribution, which shall be used along with the proceeds from the sale of the series of Notes to purchase the Funding Agreement. Upon the creation of the Trust and the registration of the Trust Beneficial Interest in the Securities Register (as defined in the Trust Agreement) by the Registrar in the name of the Trust Beneficial Owner, the Trust Beneficial Owner shall be the sole beneficial owner of the Trust.
New Members No person may be admitted as a member of the Company without the approval of the Member.