General Provisions Regarding Transfers. (a) Upon any Transfer by a Member of all of its Common Units, that Member shall cease to be a Member under this Agreement. Upon any Transfer by a Preferred Holder of all of its Preferred Units, that Preferred Holder shall cease to be a Preferred Holder under this Agreement. (b) Notwithstanding any other provision of this Agreement: (i) No Transfer of Membership Interests by any Member or Preferred Holder will be permitted, unless the transferee in such Transfer (if not already a Member or Preferred Holder) executes an Adoption Agreement consenting to becoming a Member or Preferred Holder and to be bound by all provisions of this Agreement that the transferor is subject to. Upon such execution, the Company shall cause Schedule I to be amended to add such transferee as a Member or Preferred Holder hereunder; (ii) No Transfer shall be permitted if such Transfer would (A) cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, (B) cause the Company to be classified other than as a partnership for federal income tax purposes, (C) cause all or any portion of the assets of the Company to constitute as plan assets as defined in the Plan Asset Regulation under ERISA, or (D) cause the Company to be required to register the Membership Interests under the Exchange Act, the Securities Act or the securities laws of any non-U.S. jurisdiction; (iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributions, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Member, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees of the Silver Member (or any of its Affiliates) in Transfers pursuant to Section 8.1(c) shall have and be entitled to exercise all other rights with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement; (iv) The transferor and transferee of any Member’s or Preferred Holder’s Membership Interest shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including any transfer taxes and attorneys’ fees and expenses) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of any Membership Interest shall be treated as having made all of the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such Interest. (v) The Transfer of a Member’s Membership Interest in accordance with this Article VIII shall only become valid following delivery of written notice thereof to the Company and the Board of Directors.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Taubman Centers Inc), Agreement and Plan of Merger (Taubman Centers Inc), Merger Agreement (Taubman Centers Inc)
General Provisions Regarding Transfers. (a) Upon Except to the extent otherwise required by law or otherwise directed pursuant to the affirmative vote of the Members as provided for in Section 3.2 hereof, the Company need not recognize or give effect to any Transfer transfer, in whole or in part, of a Distributional Interest under any of the following circumstances: (i) if such transfer will, in the opinion of counsel to the Company, result in a termination of certain elections or tax treatments of the Company for federal income tax purposes; (ii) if such transfer will, in the opinion of counsel to the Company, result in the Company's failure to qualify for, or the loss by the Company or any Member of, an exemption from the registration requirements of the federal or any applicable state securities laws; (iii) if such transfer would otherwise result in adverse tax consequences to the Company or the other Members; (iv) if such transferee is a Member "foreign person" as that term is defined in the Foreign Investment in Real Property Tax Act of all 1980, as amended; or (v) if such transfer will, in the opinion of counsel to the Company, result in a default under any loan agreement, contract or other agreement to which the Company or any of its Common Unitsassets are bound, that unless if the only default is due to not obtaining a valid consent, for which the Company will then seek such consent.
(b) Except as otherwise expressly provided for in this Agreement, no Person to whom all or any part of a Member's Interest in the Company is transferred (by sale, assignment or other transfer, whether voluntarily or by operation of law) shall become a Substitute Member without complying with the other requirements set forth in this Article 7. Any Person who acquires all or any part of a Member's Interest in the Company without complying with the other requirements set forth in this Article 7 shall cease obtain thereby only the rights of an assignee or transferee as provided for in this Agreement. Subject to the satisfaction of the conditions set forth herein, each Member hereby consents to the admission of any assignee or transferee of a Member's Interest in the Company as a Substitute Member.
(c) No Person shall be admitted as a Substitute Member under this Agreement. Upon Agreement unless and until:
(1) such admission has been approved by the Members, other than the transferring Member, as provided for in Section 3.2 hereof;
(2) a duplicate original of a written instrument of assignment or transfer, in form and substance as reasonably required by the Manager, signed by the assigning Member if applicable, and accepted in writing by the assignee or transferee, is delivered to the Manager;
(3) the Company receives an opinion of counsel, by legal counsel and in form and of substance reasonably satisfactory to it, to the effect that any Transfer by of the adverse consequences, if applicable, referred to Section 7.1(a)(i), Section 7.1(a)(ii) or Section 7.1(a)(v) will not in fact result from such assignment or other transfer, or the Company waives this requirement; and
(4) the prospective new Member executes and delivers to the Company a Preferred Holder of all of its Preferred Unitswritten agreement, that Preferred Holder shall cease in form reasonably satisfactory to the Manager, pursuant to which said Person agrees to be a Preferred Holder under bound by and confirms the agreements, representations, warranties, and any power of attorney, if applicable, contained in this Agreement.
(bd) In the event an assignment of any portion or all of a Member's Interest in the Company is made or a transfer thereof otherwise occurs, regardless of whether the assignee or transferee becomes a Substitute Member, then unless otherwise required by the Code:
(1) the effective date of such assignment or transfer shall be the date the written instrument of assignment or transfer is delivered to the Company or, if applicable, such other date as may be specified in such written instrument as the effective date thereof provided that such date is approved as such by the Manager; and
(2) the Company, the Manager and the other Members shall be entitled to treat the assignor or transferor of the assigned or transferred interest as the absolute owner thereof in all respects and shall incur no liability for allocations of Profits and Losses and Distributions made in good faith to such assignor or transferor until such time as the written instrument of assignment or transfer has actually been received and a reasonable time has been afforded the Manager to have the same recorded in the books of the Company.
(e) The cost of processing and perfecting an admission contemplated by this Section 7.1 (including reasonable attorneys' fees and out-of-pocket expenses incurred by the Company) shall be borne by the party seeking admission as a Member to the Company.
(f) Notwithstanding any of the provisions of Sections 7.2,7.3, 7.4 and 7.5 below to the contrary, if at any time when there is only one remaining Member such Member dies or becomes legally incompetent or, in the case of a Member who is a partnership, limited liability company, corporation, trust or other provision entity, such entity terminates, the legal representative or successor-in-interest of such terminated Member shall have the right, by filing a written instrument with the records of the Company so stating, to automatically become a substituted Member for the deceased, incompetent or terminated Member for purposes of waiving the right to have the Company's business wound up and the Company terminated by reason of the Dissociation of the deceased, incompetent or terminated Member, as provided for in Section 35-3(b) of the Act. In such circumstances, it shall not be necessary to comply with such of the other provisions of this Section 7.1 as the Manager may reasonably determine to be unnecessary for purposes of such legal representative or successor-in-interest becoming a Substitute Member for the deceased, incompetent or terminated Member, but the Manager may require compliance with those provisions, and such other or additional procedures, as reasonably determined to be necessary or appropriate to evidence the legal effectiveness of such transfer. If the deceased or incompetent Member was also the Manager, a replacement Manager may be designated by such legal representative or successor-in-interest and an amendment to the Articles shall be filed by such replacement Manager as required by the Act.
(g) Notwithstanding the other provisions of Section 7.1(b) and Section 7.1(c) of this Agreement to the contrary, a Member shall have the right to transfer his or her Interest in the Company to a grantor trust of which he or she is and remains the trustee (or a co-trustee) and sole income beneficiary during his or her lifetime, retaining the full and unrestricted power to amend and revoke such trust agreement during his or her lifetime, provided the trustee of said grantor trust complies with the provisions of Section 7.1(c)(2), Section 7.1(c)(4), Section 7.1(d) and Section 7.1(e) of this Agreement:
(i) No Transfer of Membership Interests by any Member or Preferred Holder will be permitted, unless the transferee in . In such Transfer (if not already a Member or Preferred Holder) executes an Adoption Agreement consenting to becoming a Member or Preferred Holder and to be bound by all provisions of this Agreement that the transferor is subject to. Upon such executioncase, the Company grantor trust shall cause Schedule I to be amended to add such transferee as automatically become a Member or Preferred Holder hereunder;
(ii) No Transfer shall be permitted if such Transfer would (A) cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, (B) cause the Company to be classified other than as a partnership for federal income tax purposes, (C) cause all or any portion of the assets of the Company to constitute as plan assets as defined in the Plan Asset Regulation under ERISA, or (D) cause the Company to be required to register the Membership Interests under the Exchange Act, the Securities Act or the securities laws of any non-U.S. jurisdiction;
(iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributions, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Substitute Member, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees of the Silver Member (or any of its Affiliates) in Transfers pursuant to Section 8.1(c) shall have and be entitled to exercise all other rights with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement;
(iv) The transferor and transferee of any Member’s or Preferred Holder’s Membership Interest shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including any transfer taxes and attorneys’ fees and expenses) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of any Membership Interest shall be treated as having made all of the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such Interest.
(v) The Transfer of a Member’s Membership Interest in accordance with this Article VIII shall only become valid following delivery of written notice thereof to the Company and the Board of Directors.
Appears in 1 contract
General Provisions Regarding Transfers. (a) Upon Any attempted Transfer of Voting Shares not permitted under the terms of, or not conducted in accordance with the procedures set forth within, this Article 4 shall be null and void ab initio and of no force or effect, and the Company shall not in any way give effect to or be required to recognize any such impermissible Transfer.
(b) The Board shall approve, and delegates to any director the authority to evidence the approval of the Board of, any Transfer by a Member of all of its Common Units, that Member shall cease to be a Member under this Agreement. Upon any Transfer by a Preferred Holder of all of its Preferred Units, that Preferred Holder shall cease to be a Preferred Holder under Voting Shares effected in accordance with this Agreement.
(bc) Notwithstanding In any Transfer contemplated by Section 4.3, to the extent that one Shareholder is Transferring to another existing Shareholder, the Transferring Shareholder shall (i) in connection with the definitive documentation relating to such Transfer, represent and warrant, as relating to the Transfer, that (A) the Transferring Shareholder has full right, title and interest in and to the Voting Shares being Transferred, (B) the Transferring Shareholder has all the necessary power and authority and have taken all necessary action to Transfer such Voting Shares, except with respect to any Governmental Consents, and (C) such Voting Shares are free and clear of any and all Liens other provision than those arising as a result of or under the terms of this Agreement:, (iii) take all actions as may be reasonably necessary to consummate the Transfer, including, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate and taking any actions required by Section 4.1(b), provided, that in no event shall the Transferring Shareholder be required to incur any obligation (including indemnification obligations) in connection with such Transfer greater than the aggregate proceeds received by the Transferring Shareholder and their Affiliates from such Transfer. At the closing of any such Transfer, the Transferring Shareholder shall deliver to the transferee a certificate or certificates representing the Voting Shares to be Transferred (if any), accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the applicable purchase price.
(id) No Transfer Transfers of Membership Interests Voting Shares by any Member or Preferred Holder Shareholder will be permitted, permitted unless the transferee in such Transfer (if not already executes a Member or Preferred Holder) executes an Adoption Joinder Agreement consenting to becoming a Member or Preferred Holder Shareholder and to be bound by all provisions of this Agreement that the transferor is subject to. Upon such executionany Transfer by a Shareholder of all of its Voting Shares, the Company that Shareholder shall cause Schedule I cease to be amended a Shareholder for all purposes under this Agreement, except with respect to add any obligations which accrued prior to the closing date of such transferee Transfer; provided that no such Transfer shall result in Bxxxxxx or Nxxxx ceasing to be bound by this Agreement until such time as a Member none of it or Preferred Holder hereunder;its Affiliates (including, in the case of Norie, any of Norie’s wife and/or children) ceases to Beneficially Own any shares of the Company, and any obligations which occurred prior to such time shall continue. For avoidance of doubt, no Transfer of Voting Shares by Bxxxxxx and/or Bxxxxxx Shareholder shall affect Bxxxxxx and its Affiliates’ obligations with respect to the Earn-out Payment pursuant to the Purchase Agreement.
(iie) No Transfer In the exercise of any rights or offer contemplated by Section 4.3, Bxxxxxx shall be permitted if such Transfer would (A) to cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, (B) cause the Company to be classified other than as a partnership for federal income tax purposes, (C) cause all or any portion of the assets of the Company to constitute as plan assets as defined in the Plan Asset Regulation under ERISA, or (D) cause the Company to be required to register the Membership Interests under the Exchange Act, the Securities Act or the securities laws of any non-U.S. jurisdiction;
(iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributions, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Member, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees of the Silver Member (Designee or any of its Affiliates) in Transfers , as designated by Bxxxxxx, to accept any Voting Shares to be acquired by Bxxxxxx on Bxxxxxx’x behalf, and such Permitted Designee or Affiliate shall be required to enter into a Joinder Agreement pursuant to Section 8.1(c4.5(d) shall have and be entitled to exercise all other rights in connection with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement;
(iv) The transferor and transferee of any Member’s or Preferred Holder’s Membership Interest shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including any transfer taxes and attorneys’ fees and expenses) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of any Membership Interest shall be treated as having made all its acceptance of the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such InterestVoting Shares contemplated by this Section 4.5(e).
(v) The Transfer of a Member’s Membership Interest in accordance with this Article VIII shall only become valid following delivery of written notice thereof to the Company and the Board of Directors.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Bristow Group Inc)
General Provisions Regarding Transfers. (a) Upon any Transfer by Unless admitted as a Member in accordance with the provisions of this Agreement, the transferee of all or any portion of its Common Units, that Member a Member’s interest in the Company shall cease to not be a Member under this Agreement. Upon any Member, but instead shall be subject to the provisions of Section 7.6.
(b) In connection with each Transfer by of an interest in the Company: (i) the transferor and transferee shall execute and deliver to the Company a Preferred Holder written instrument of Transfer in form and substance reasonably satisfactory to the Manager and (ii) the transferee shall execute and deliver to the Company a written instrument pursuant to which the transferee assumes all obligations of its Preferred Units, that Preferred Holder shall cease the transferor associated with the transferred interest and otherwise agrees to be a Preferred Holder under comply with the terms and provisions of this Agreement.
(bc) Notwithstanding any other provision of this Agreement:
Agreement to the contrary, there shall be no Transfer of an interest in the Company unless such Transfer will not: (i) No Transfer of Membership Interests by any Member or Preferred Holder will be permitted, unless the transferee in such Transfer (if not already give rise to a Member or Preferred Holder) executes an Adoption Agreement consenting to becoming a Member or Preferred Holder and to be bound by all provisions of this Agreement requirement that the transferor is subject to. Upon such execution, Company register under Section 5 of the Company shall cause Schedule I to be amended to add such transferee as a Member or Preferred Holder hereunder;
Securities Act; (ii) No Transfer shall give rise to a requirement that the Company or any Affiliate of the Company register as an investment company or elect to be permitted if a “business development company” under the Investment Company Act; (iii) give rise to a requirement that the Manager or any equityholder, member, director, officer, or employee of the Manager register as an investment adviser under the United States Investment Advisers Act of 1940, as amended; (iv) otherwise subject the Company, the Manager, or any equityholder, member, director, officer, or employee of the Manager to additional regulatory requirements under Federal, State, local or foreign law, compliance with which would subject the Company or such Transfer would other Person to material expense or burden (Aunless each such affected Person consents to such Transfer); (v) constitute a transaction effected through an “established securities market” within the meaning of Treasury Regulation Section 1.7704-1(b) or otherwise cause the Company to be treated as a “publicly traded partnership partnership” within the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, Code; (Bvi) cause the Company to be classified other than as effect a partnership for federal income tax purposes, (C) cause all or any portion of the assets termination of the Company under Section 708 of the Code (but only if such termination would result in material adverse consequences to constitute as plan assets as defined in the Plan Asset Regulation Company or any Member under ERISAFederal, State or local law); or (vii) violate any law, regulation or other governmental rule, or (D) cause result in a violation thereof by the Company to be required to register the Membership Interests under the Exchange ActCompany, the Securities Act Manager, or the securities laws of any non-U.S. jurisdiction;
(iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributionsequityholder, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Membermember, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees director, officer, or employee of the Silver Member (or any of its Affiliates) in Transfers pursuant to Section 8.1(c) shall have and be entitled to exercise all other rights with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement;
(iv) The transferor and transferee of any Member’s or Preferred Holder’s Membership Interest shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including any transfer taxes and attorneys’ fees and expenses) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of any Membership Interest shall be treated as having made all of the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such InterestManager.
(vd) The Any Transfer in violation of a Member’s Membership Interest in accordance with this Article VIII Section 7: (i) shall only become valid following delivery of written notice thereof to be null and void as against the Company and the Board other Members; and (ii) shall not be recognized or permitted by, or duly reflected in the official books and records of, the Company. The preceding sentence shall not be applied to prevent the Company from enforcing any rights it may have in respect of Directorsa transferee arising under this Agreement or otherwise (including any rights arising under Section 10.6).
Appears in 1 contract
Samples: Operating Agreement
General Provisions Regarding Transfers. (a) Upon any Transfer by a Member of all of its Common Units, that Member shall cease to be a Member under this Agreement. Upon any Transfer by a Preferred Holder of all of its Preferred Units, that Preferred Holder shall cease to be a Preferred Holder under this Agreement.
(b) Notwithstanding any other provision of this Agreement:
(i) No Transfer of Membership Interests by all or any Member or Preferred Holder will be permitted, unless the transferee portion of an Interest in such Transfer (if not already a Member or Preferred Holder) executes an Adoption Agreement consenting to becoming a Member or Preferred Holder and to be bound by all provisions of this Agreement that the transferor is subject to. Upon such execution, the Company shall cause Schedule I be permitted unless such Transfer will not: (i) violate Federal or State securities laws or any other law, regulation or other governmental rule applicable to be amended to add such transferee as a Member or Preferred Holder hereunder;
Transfer; (ii) No Transfer shall be permitted if such Transfer would effect a termination of the Company under Section 708 of the Code; (Aiii) cause the Company to be treated as a "publicly traded partnership partnership" within the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, (B) or otherwise cause the Company to be classified other than taxable as a partnership corporation for federal Federal income tax purposes; (iv) subject the Company or any Member to additional regulatory requirements under Federal, State, local or foreign law, compliance with which would subject the Company or such other Person to material expense or burden (Cunless each such affected Person consents to such Transfer); or (v) cause violate the terms of this Agreement.
(b) No Member may sell, assign, transfer or otherwise dispose of more than eighty percent (80%) of its Interest without the prior written consent of a majority in interest of the other Members, which consent may be withheld in their sole and absolute discretion.
(c) Prior to the fifth (5th) anniversary of this Agreement no Member may make a voluntary Transfer of its Interest to a third party. Subsequent to the fifth (5th) anniversary of this Agreement, but subject to Section 7.1(b), in the case of a voluntary Transfer to a third party, the transferring Member shall provide to the other Members notice that it wishes to make a Transfer of its Interest and the non-transferring Members shall have a right of first opportunity to buy such Interest at its Fair Market Value. Fair Market Value for purposes of this Section 7.1 shall be determined as follows. Each of the Members shall make an independent determination of the Company's fair market value. If the values so determined are within 10% of each other, the Fair Market Value shall be deemed to be the mean of the two values. If the difference in the values is greater than 10%, an independent third party of national standing, experienced in business valuations, and agreed to by the parties shall be retained to determine which of the values determined by the parties most closely approximates the Fair Market Value. The non-transferring Members will then have the option to purchase the Interest of the transferring Member at the Fair Market Value. Unless agreed to otherwise by the transferring Member, such payment must be made in cash. If the non-transferring Members do not arrange to acquire the Interest of the transferring Member within sixty (60) days of the final determination of the Company's Fair Market Value pursuant to this Section 7.1, then the non-transferring Members shall have a period of 120 days from the date of the notice of the non-transferring Member that it is not acquiring such Interest, to arrange for a third party to make such purchase at the Fair Market Value. If the non-transferring Members do not arrange to acquire the Interest of the transferring Members or arrange for a third party to make such purchase, then the transferring member shall have 120 days from the expiration of the 120 day period of the non-transferring Member to arrange for a third party to make such purchase at the Fair Market Value.
(d) Any attempted Transfer in violation of the terms of this Agreement: (i) shall be null and void as against the Company and the other Members; and (ii) shall not be recognized or permitted by, or duly reflected in the official books and records of, the Company. The preceding sentence shall not be applied to prevent the Company from enforcing any rights it may have in respect of a transferee arising under this Agreement or otherwise (including, without limitation, any rights arising under Section 10.6). In the event of any Transfer or attempted Transfer of a Company interest in violation of this Agreement, without limiting any other rights of the Company, the non- transferring Members shall have the right, in their sole and absolute discretion, to require the withdrawal of the transferring Member (or its successor(s) in interest) from the Company.
(e) In connection with each Transfer pursuant to this Section 7: (i) the transferor and transferee shall execute and deliver to the Company a written instrument of transfer in form and substance reasonably satisfactory to the Board of Managers; and (ii) the transferee shall execute and deliver to the Company a written instrument pursuant to which the transferee assumes all obligations of the transferor associated with the transferred interest and otherwise agrees to comply with the terms and provisions of this Agreement.
(f) In the event that a Member Transfers (or proposes to Transfer) all or any portion of its interest in the assets Company, all reasonable legal and other out-of-pocket expenses incurred by the Company on account of the Company to constitute as plan assets as defined in Transfer (or proposed Transfer) shall be paid by such Member. Following the Plan Asset Regulation under ERISA, or (D) cause the Company to be required to register the Membership Interests under the Exchange Acteffective date of any Transfer, the Securities Act or the securities laws of any non-U.S. jurisdiction;
(iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributions, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Member, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees of the Silver Member (or any of its Affiliates) in Transfers pursuant to Section 8.1(c) shall have and be entitled to exercise all other rights with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement;
(iv) The transferor and transferee of any Member’s or Preferred Holder’s Membership Interest shall be jointly and severally obligated to reimburse the Company liable for all reasonable expenses (including any transfer taxes and attorneys’ fees and such expenses) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of any Membership Interest shall be treated as having made all of the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such Interest.
(vg) The Transfer Except as otherwise specifically provided in this Agreement or with the consent of the Majority in Interest of the Members, all economic attributes of a transferor Member’s Membership Interest 's interest in accordance with this Article VIII the Company (such as the Member's Capital Commitment, Capital Contribution and Capital Account balance) shall only become valid following delivery of written notice thereof carry over to a transferee in proportion to the Company and percentage of the Board of Directorsinterest so transferred.
Appears in 1 contract
Samples: Limited Liability Operating Agreement (Catalytica Inc)
General Provisions Regarding Transfers. (a) Upon any A Transfer by a Member of all of its Common Units, that Member shall cease to be a Member otherwise permitted under this Agreement. Upon any Transfer by a Preferred Holder of all of its Preferred Units, that Preferred Holder Article 8 shall cease to be a Preferred Holder under this Agreement.
(b) Notwithstanding any other provision of this Agreementnot take effect unless and until the following conditions are satisfied:
(i) No Transfer The transferor and transferee shall execute such documents and instruments of Membership Interests by any Member conveyance and assumptions as may be necessary or Preferred Holder will be permitted, unless appropriate in the transferee in such Transfer (if not already a Member or Preferred Holder) executes an Adoption Agreement consenting opinion of counsel to becoming a Member or Preferred Holder and to be bound by all provisions of this Agreement that the transferor is subject to. Upon such execution, the Company shall cause Schedule I to be amended to add such transferee as a Member or Preferred Holder hereunder;
(ii) No Transfer shall be permitted if such Transfer would (A) cause the Company to be treated as a publicly traded partnership within effect such Transfer and to confirm the meaning of Section 7704 of the Code and Regulations Section 1.7704-1, (B) cause the Company transferee's agreement to be classified other than as a partnership for federal income tax purposes, (C) cause all or any portion of the assets of the Company to constitute as plan assets as defined in the Plan Asset Regulation under ERISA, or (D) cause the Company to be required to register the Membership Interests under the Exchange Act, the Securities Act or the securities laws of any non-U.S. jurisdiction;
(iii) The Transfer of a Membership Interest in accordance with this Article VIII shall entitle the transferee only to receive the distributions, return of contributions and allocations with respect to such Membership Interest and not to any other rights of a Member, except as provided in Section 8.1(d) and Section 11.12 and except that Permitted Transferees in Permitted Affiliate Transfers and transferees of the Silver Member (or any of its Affiliates) in Transfers pursuant to Section 8.1(c) shall have and be entitled to exercise all other rights with respect to such Membership Interest. For the avoidance of doubt, any and all transferees shall be bound by the provisions of this Agreement;Agreement and assumption of all monetary obligations of the transferor Party with respect to the Membership Interest being transferred and the transferor Party's agreement to guarantee the prompt payment and performance of such assumed obligations.
(ii) The transferee shall deliver such assurances as may be necessary or appropriate in the opinion of counsel to the Company to confirm such Transfer and that such transferor Party remains liable to perform all monetary obligations with respect to such interest.
(iii) The Company shall receive, prior to such Transfer, if it deems it necessary, an opinion of counsel satisfactory to the Company confirming that such Transfer will not terminate the Company for federal income tax purposes.
(iv) The transferor and transferee shall furnish the Company with the transferee's taxpayer identification number, sufficient information to determine the transferee's initial tax basis in the interest transferred, and any other information reasonably necessary to permit the Company to file all required federal and state tax returns and other legally required information statements or returns. Without limiting the generality of the foregoing, the Company shall not be required to make any distribution otherwise provided for in this Agreement with respect to any transferred interest until it has received such information.
(b) The requirements of Section 8.4(a) shall not apply to an adjustment of Percentage Interests pursuant to Section 8.3 or a Transfer of Membership Interests pursuant to Section 8.3.
(c) The Parties intend that the Permitted Transfer of an interest in the Company shall not cause the dissolution of the Company under the Delaware Act; however, in the event of any Member’s or Preferred Holder’s Membership Interest such dissolution, the Parties shall be jointly and severally obligated to reimburse cause the Company for all reasonable expenses to be reformed and shall make reasonably best efforts to continue the business of the Company under this Agreement as if no such dissolution had occurred.
(including any transfer taxes and attorneys’ fees and expensesd) of any Transfer or proposed Transfer of a Member’s or Preferred Holder’s Membership Interest, whether or not consummated. The transferee of In the event any Membership Interest shall be treated as having made all of in the capital contributions made by, and received all of the allocations and distributions received by, the transferor of such Membership Interest in respect of such Interest.
(v) The Transfer of a Member’s Membership Interest Company is transferred in accordance with the terms of this Article VIII Agreement, the transferee shall only become valid following delivery of written notice thereof succeed to the Company and Capital Account of the Board of Directors.transferor to the extent it relates to the transferred Membership Interest. ARTICLE 9
Appears in 1 contract
Samples: Joint Venture Agreement (International Assets Holding Corp)
