Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3. Each Listed Share shall be identical in every respect with each other Listed Share. (b) The Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter submitted by the Company to the Record Holders of Listed Shares pursuant to Subsections 4.3(c) or (d) or Article 9 of this Agreement, Section 6 of the Exchange Provisions or Section 8 of the Purchase Provisions, subject to Subsection 4.3(e). (c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "for" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "against" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units. (d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), (i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, (ii) any proposed issuance of any new shares into which the interest in the Company may be divided other than the Voting Shares and the Listed Shares, and (iii) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: (1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2) any amendment that is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement. (e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares: (i) any Person or Group, excluding the Record Holders of Voting Shares and their Affiliates, if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) the Record Holders of Voting Shares and their Affiliates with respect to (A) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEP, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d). (f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in the event that (i) KMEP pays a cash distribution in respect of each Common Unit and pays a corresponding distribution of additional I-Units, or fractions thereof, in respect of the I-Units, or (ii) in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, the record holders of Common Units and Class B Units receive a cash distribution and the record holder of I-Units receives a corresponding distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made in respect of each Listed Share. Except as provided in the Purchase Provisions, such Share Distribution in respect of each Listed Share shall be made on the date on which KMEP makes a cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5. (g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions. (h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B and are an integral part of this Agreement. (i) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Kinder Morgan Energy Partners L P), Limited Liability Company Agreement (Kinder Morgan Management LLC)
Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] Listed Shares, andShares or, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] Listed Shares. The Listed Shares shall will initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter submitted by the Company to the Record Holders of Listed Shares pursuant to Subsections 4.3(c) or (d) or Article 9 10 of this Agreement, Section 6 of the Exchange Provisions or Section 8 7 of the Purchase Provisions, subject to Subsection 4.3(e).
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "for" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "against" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units.shall
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), thereon (i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, (ii) any proposed issuance of any new shares into which Other Shares pursuant to Section 4.4 and (ii) (A) a proposed amendment to the interest terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights or preferences of the I-Units in relation to the other classes of Units, as determined in the Company may be divided other than sole discretion of the Voting Shares and the Listed SharesBoard of Directors, and (iiiB) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A1) reduce the time for any notice to which Record Holders of Listed Shares would be entitledentitled under this Agreement, or (B2) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: (1I) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2II) any amendment that is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement, and (III) any amendment that increases or decreases the number of any of the Company Securities authorized for issuance pursuant to Subsection 4.1(a).
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares:
(i) KMEP or any subsidiary thereof, except on any matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c), (ii) any Person or Group, excluding the Record Holders of Voting Shares KMI and their Affiliatesits Affiliates (other than KMEP and its subsidiaries), if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals owns beneficially 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of and Common Units that are Outstanding, and (iiiii) the Record Holders of Voting Shares KMI and their its Affiliates (other than KMEP and its subsidiaries) with respect to (A) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to either (1) the proposed removal of the general partner of KMEP, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (Organizational Shareholder in its capacity as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, or (32) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights and or preferences of the I-Units in relation to the other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d4.3(d)(ii)(B).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share A Distribution in respect of each Listed Share shall be made payable only in the event that (i) KMEP pays a cash distribution dividend in respect of each Common Unit and pays a corresponding distribution of additional I-Units, or fractions thereof, in respect of the I-Units, or (ii) in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, the record holders of Common Units and Class B Units receive a cash distribution and the record holder of I-Units receives a corresponding distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made paid in respect of each Listed Share. Except as provided in the Purchase ProvisionsSubsection 4.3(h), such Share Distribution in respect of each Listed Share shall be made on payable no later than the 45th Business Day following (i) the completion of a Quarterly Period for which KMEP declares a cash dividend, in the event that KMEP declares such cash dividend in respect of each Common Unit upon the completion of a Quarterly Period, or (ii) the date on which KMEP makes declares a cash distribution dividend, in the event that KMEP declares such cash dividend in respect of each Common UnitUnit other than upon the completion of a Quarterly Period. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made dividend declared by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution No Distribution in respect of Listed Shares shall be made paid in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(f) shall be equal to and represented by a fraction that is calculated to six decimal places the exact or next lowest one-millionth (without rounding)1/1,000,000) of a Listed Share, and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall will not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made payable and shall will be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.. The Exchange Provisions are attached as Annex A.
(h) Under certain circumstances Upon the occurrence of any of the events set forth in Section 2 of the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions)) shall purchase, and all Shareholders shall be required to sell, all of the Listed Shares under the terms and conditions of the Purchase Provisions. The Purchase Provisions also set forth the rights Purchaser may elect, but shall not be obligated, to purchase all, but not less than all, of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Outstanding Listed Shares that have been declared (are not held by the Purchaser or a record date for which has been set) but that have not been paid or madeits Affiliates at the Optional Purchase Price upon the existence of the Optional Purchase Condition, as those terms are defined in the Purchase Provisions. The Purchase Provisions are attached as Annex B and are an integral part of this Agreement.
(i) Fractions B. Distributions in respect of Listed Shares shall not be sold on suspended upon (i) the occurrence of any of the events set forth in Section 2 of the Purchase Provisions, or (ii) the receipt by the Company of notice from the Purchaser stating that the Purchaser will effect a National Securities Exchange until they equalpurchase pursuant to the terms of the Purchase Provisions. Upon the consummation of the purchase pursuant to the Purchase Provisions, any Distributions that would have been paid but for the suspension of Distributions as provided in the aggregateprevious sentence shall be paid, whole and Distributions in respect of Listed SharesShares shall continue to be payable thereafter in accordance with Subsection 4.3(f).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kinder Morgan Management LLC)
Listed Shares. (a) As of the Closing DateFirst Time of Delivery (as defined in the Underwriting Agreement), there shall be Outstanding [_________] 9,000,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 10,350,000 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.34.03. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Except as provided in Sections 4.03(c) and (d), the Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter. On any matter submitted by the Company or the Board of Directors to the Record Holders of Outstanding Listed Shares pursuant to Subsections 4.3(cSections 4.03(c) or (d) or Article 9 ), each Record Holder of this Agreement, Section 6 of the Exchange Provisions or Section 8 of the Purchase ProvisionsOutstanding Listed Shares shall be entitled, subject to Subsection 4.3(ethe limitations set forth in Section 4.03(e), to one vote per Listed Share.
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Outstanding Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For The Company shall vote, or not vote, as the case may be, the I-Units that it owns in the following manner:
(i) for each Outstanding Listed Share or fraction thereof that has been voted "“for" ” the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall vote one I-Unit or an equivalent fraction "“for" ” such corresponding matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares voted "“for" ” such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares voted "“for" ” such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units voting "“for" ” such corresponding matter when presented to the record holder of I-Units. For ;
(ii) for each Outstanding Listed Share or fraction thereof that has been voted "“against" ” the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall vote one I-Unit or an equivalent fraction "“against" ” such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares voted "“against" ” such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares voted "“against" ” such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units voting "“against" ” such corresponding matter when presented to the record holder of I-Units. For ;
(iii) for each Outstanding Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares that have abstained from voting on such matter presented to the Record Holders of Voting Shares pursuant to Section 4.02(c), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units; and
(iv) for each Outstanding Listed Share or have fraction thereof that has not been voted, whether by broker non-vote or otherwise, on the matter presented to the Record Holders of Outstanding Listed Shares, the Company shall not vote one I-Unit or equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares not voted on such matter presented to the Record Holders of Outstanding Listed Shares, when added to the number of Voting Shares not voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units abstaining from not voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Outstanding Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), following matters:
(i) any proposed issuance of any new class or series of Company Securities into which the interests in the Company may be divided, other than the Voting Shares and the Listed Shares;
(ii) any matter for which the approval of the Record Holders of Outstanding Listed Shares is required pursuant to Article 9, Section 7.01(a);
(iiiii) any proposed issuance of any new shares into matter for which the interest in approval of the Company may be divided other than Record Holders of Outstanding Listed Shares is required pursuant to Section 9.01(b);
(iv) any matter for which the Voting approval of the Record Holders of Outstanding Listed Shares and is required pursuant to Section 2.05 of the Purchase Provisions;
(v) any matter for which the approval of the Record Holders of Outstanding Listed Shares, and Shares is required pursuant to the Delegation of Control Agreement; and
(iiivi) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the powers, preferences or rights or preferences of the Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the powers, preferences or rights and preferences of the Listed Shares: (1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and ; (2) any amendment that is required to effect the intent of the provisions of this Agreement Agreement, including the Purchase Provisions, or is otherwise contemplated by this Agreement, including the Purchase Provisions; and (3) any amendment to the Purchase Provisions that is contemplated by Section 8.02 of the Purchase Provisions.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Any Listed Shares:
(i) any Person or Group, excluding Shares held by the Record Holders of Voting Shares and their Affiliates, if the sum :
(i) may not be voted on any matter in respect of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) which the Record Holders of Voting Shares and their Affiliates are not entitled to vote any Voting Shares pursuant to Section 4.02(b); and
(ii) shall not be entitled to vote and shall not be considered Outstanding with respect to (A) a any matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEP, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d4.03(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in In the event that (i) KMEP the Partnership pays a cash distribution in respect of each its Common Unit and pays a corresponding distribution Units that results in an increase in the number of additional outstanding I-Units, or fractions thereof, in respect Units pursuant to Section 5.10(a) of the I-UnitsPartnership Agreement, or (ii) the Partnership engages in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, transaction pursuant to which the record holders of Common Units and Class B Units receive a cash distribution and the record holder number of I-Units receives held by the record holders of I-Units is increased, the Company shall make a corresponding distribution Share Distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made Listed Shares in respect of its Outstanding Listed Shares and fractional Listed Shares in an amount per whole Listed Share equal to the quotient obtained by dividing the amount of the cash distribution to be made by the Partnership on each Common Unit by the Average Market Price per Listed Share. Except as provided in the Purchase Provisions, such a Share Distribution in respect of each Listed Share shall be made on the date on which KMEP the Partnership makes a the related cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(fSection 4.03(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which that is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.53.05. Except as provided in this Section 4.03(f) and Sections 4.01(b) and 4.04, no Share Distributions shall be made in respect of Listed Shares. Except as otherwise provided in Section 7.02(b), no distribution in respect of Listed Shares shall be made in cash.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B A and are an integral part of this Agreement.
(ih) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Enbridge Energy Partners Lp)
Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] 14,875,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 17,106,250 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter submitted by the Company to the Record Holders of Listed Shares pursuant to Subsections 4.3(c) or (d) or Article 9 of this Agreement, Section 6 of the Exchange Provisions Agreement or Section 8 of the Purchase Provisions, subject to Subsection 4.3(e).
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "“for" ” the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "“for" ” such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "“for" ” such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "“for" ” such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "“for" ” such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "“against" ” the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "“against" ” such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "“against" ” such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "“against" ” such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "“against" ” such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), (i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, (ii) any proposed issuance of any new shares into which the interest in the Company may be divided other than the Voting Shares and the Listed Shares, and (iii) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: (1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2) any amendment that is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares:
: (i) any Person or Group, excluding the Record Holders of Voting Shares and their Affiliates, if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) the Record Holders of Voting Shares and their Affiliates with respect to (A) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEPKMEP under Section 13.2 of the Partnership Agreement, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) 15.2 of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b13.1(b)(i) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in the event that (i) KMEP pays a cash distribution in respect of each Common Unit and pays a corresponding distribution of additional I-Units, or fractions thereof, in respect of the I-Units, or (ii) in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, the record holders of Common Units and Class B Units receive a cash distribution and the record holder of I-Units receives a corresponding distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made in respect of each Listed Share. Except as provided in the Purchase Provisions, such Share Distribution in respect of each Listed Share shall be made on the date on which KMEP makes a cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B and are an integral part of this Agreement.
(ih) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kinder Morgan Management LLC)
Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] 10,000,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 11,500,000 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3SECTION 4.03. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Except as provided in SECTIONs 4.03(c) and (d), the Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter. On any matter submitted by the Company or the Board of Directors to the Record Holders of Listed Shares pursuant to Subsections 4.3(cSECTIONs 4.03(c) or (d) or Article 9 each Record Holder of this Agreement, Section 6 of the Exchange Provisions or Section 8 of the Purchase ProvisionsListed Shares shall be entitled, subject to Subsection 4.3(ethe limitations set forth in SECTION 4.03(e), to one vote per Listed Share.
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "for" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSECTION 4.02(d), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "against" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSECTION 4.02(d), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSECTION 4.02(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to thereon the matters referred to in Subsection 4.3(c), following matters:
(i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, SECTION 7.01(a);
(ii) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to SECTION 9.01(c);
(iii) any proposed issuance of any new shares class or series of Company Securities into which the interest interests in the Company may be divided divided, other than the Voting Shares and the Listed Shares, and ; and
(iiiiv) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: Control
(1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2) any amendment that is required to effect the intent of the provisions of this Agreement Agreement, including the Purchase Provisions, or is otherwise contemplated by this Agreement, including the Purchase Provisions.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares:
(i) any Person or Group, excluding the Record Holders of Voting Shares and their Affiliates, if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and outstanding; and
(ii) the Record Holders of Voting Shares and their Affiliates with respect to to:
(A) a matter that is presented to in respect of which the Record Holders of Listed Voting Shares and their Affiliates are not entitled to vote any Voting Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEP, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b) of the Partnership Agreement, and SECTION 4.02(b); and
(B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(dSECTION 4.03(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in In the event that (i) KMEP the Partnership pays a cash distribution in respect of each its Common Unit and pays a corresponding distribution Units that results in an increase in the number of additional outstanding I-Units, or fractions thereof, in respect Units pursuant to SECTION 5.10(a) of the I-UnitsPartnership Agreement, or (ii) the Partnership engages in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, transaction pursuant to which the record holders of Common Units and Class B Units receive a cash distribution and the record holder number of I-Units receives held by the record holders of I-Units is increased, the Company shall make a corresponding distribution Share Distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made Listed Shares in respect of its Outstanding Listed Shares and fractional Listed Shares in an amount per whole Listed Share equal to the quotient obtained by dividing the amount of the cash distribution to be made by the Partnership on each Common Unit by the Average Market Price per Listed Share. Except as provided in the Purchase Provisions, such a Share Distribution in respect of each Listed Share shall be made on the date on which KMEP the Partnership makes a the related cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(fSECTION 4.03(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5SECTION 3.05. EXCEPT AS PROVIDED IN THIS SECTION 4.03(f) AND SECTIONS 4.01(b) AND 4.05, NO SHARE DISTRIBUTIONS SHALL BE MADE IN RESPECT OF LISTED SHARES. Except as otherwise provided in SECTION 7.02(b), no distribution in respect of Listed Shares shall be made in cash.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B A and are an integral part of this Agreement.
(i) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Listed Shares. (a) As of the Closing DateFirst Time of Delivery (as defined in the Underwriting Agreement), there shall be Outstanding [_________] 9,000,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 10,350,000 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.34.03. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Except as provided in Sections 4.03(c) and (d), the Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter. On any matter submitted by the Company or the Board of Directors to the Record Holders of Outstanding Listed Shares pursuant to Subsections 4.3(cSections 4.03(c) or (d) or Article 9 ), each Record Holder of this Agreement, Section 6 of the Exchange Provisions or Section 8 of the Purchase ProvisionsOutstanding Listed Shares shall be entitled, subject to Subsection 4.3(ethe limitations set forth in Section 4.03(e), to one vote per Listed Share.
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Outstanding Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For The Company shall vote, or not vote, as the case may be, the I-Units that it owns in the following manner:
(i) for each Outstanding Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares voted "for" such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For ;
(ii) for each Outstanding Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares voted "against" such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For ;
(iii) for each Outstanding Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Outstanding Listed Shares entitled to vote thereonShares, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Outstanding Listed Shares, in addition when added to the number of Voting Shares that have abstained from voting on such matter presented to the Record Holders of Voting Shares pursuant to Section 4.02(c), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units; and
(iv) for each Outstanding Listed Share or have fraction thereof that has not been voted, whether by broker non-vote or otherwise, on the matter presented to the Record Holders of Outstanding Listed Shares, the Company shall not vote one I-Unit or equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Outstanding Listed Shares not voted on such matter presented to the Record Holders of Outstanding Listed Shares, when added to the number of Voting Shares not voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(dSection 4.02(c), shall equal the number of I-Units abstaining from not voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Outstanding Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), following matters:
(i) any proposed issuance of any new class or series of Company Securities into which the interests in the Company may be divided, other than the Voting Shares and the Listed Shares;
(ii) any matter for which the approval of the Record Holders of Outstanding Listed Shares is required pursuant to Article 9, Section 7.01(a);
(iiiii) any proposed issuance of any new shares into matter for which the interest in approval of the Company may be divided other than Record Holders of Outstanding Listed Shares is required pursuant to Section 9.01(b);
(iv) any matter for which the Voting approval of the Record Holders of Outstanding Listed Shares and is required pursuant to Section 2.05 of the Purchase Provisions;
(v) any matter for which the approval of the Record Holders of Outstanding Listed Shares, and Shares is required pursuant to the Delegation of Control Agreement; and
(iiivi) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: Control
(1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and ;
(2) any amendment that is required to effect the intent of the provisions of this Agreement Agreement, including the Purchase Provisions, or is otherwise contemplated by this Agreement, including the Purchase Provisions; and (3) any amendment to the Purchase Provisions that is contemplated by Section 8.02 of the Purchase Provisions.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Any Listed Shares:
(i) any Person or Group, excluding Shares held by the Record Holders of Voting Shares and their Affiliates, if the sum :
(i) may not be voted on any matter in respect of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) which the Record Holders of Voting Shares and their Affiliates are not entitled to vote any Voting Shares pursuant to Section 4.02(b); and
(ii) shall not be entitled to vote and shall not be considered Outstanding with respect to (A) a any matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEP, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d4.03(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in In the event that (i) KMEP the Partnership pays a cash distribution in respect of each its Common Unit and pays a corresponding distribution Units that results in an increase in the number of additional outstanding I-Units, or fractions thereof, in respect Units pursuant to Section 5.10(a) of the I-UnitsPartnership Agreement, or (ii) the Partnership engages in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, transaction pursuant to which the record holders of Common Units and Class B Units receive a cash distribution and the record holder number of I-Units receives held by the record holders of I-Units is increased, the Company shall make a corresponding distribution Share Distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made Listed Shares in respect of its Outstanding Listed Shares and fractional Listed Shares in an amount per whole Listed Share equal to the quotient obtained by dividing the amount of the cash distribution to be made by the Partnership on each Common Unit by the Average Market Price per Listed Share. Except as provided in the Purchase Provisions, such a Share Distribution in respect of each Listed Share shall be made on the date on which KMEP the Partnership makes a the related cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(fSection 4.03(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which that is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.53.05. Except as provided in this Section 4.03(f) and Sections 4.01(b) and 4.04, no Share Distributions shall be made in respect of Listed Shares. Except as otherwise provided in Section 7.02(b), no distribution in respect of Listed Shares shall be made in cash.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B A and are an integral part of this Agreement.
(ih) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Enbridge Energy Management L L C)
Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] 14,875,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 17,106,250 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter submitted by the Company to the Record Holders of Listed Shares pursuant to Subsections 4.3(c) or (d) or Article 9 of this Agreement, Section 6 of the Exchange Provisions Agreement or Section 8 of the Purchase Provisions, subject to Subsection 4.3(e).
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "for" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "against" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), (i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, (ii) any proposed issuance of any new shares into which the interest in the Company may be divided other than the Voting Shares and the Listed Shares, and (iii) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: (1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2) any amendment that is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares:
(i) any Person or Group, excluding the Record Holders of Voting Shares and their Affiliates, if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) the Record Holders of Voting Shares and their Affiliates with respect to (A) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEPKMEP under Section 13.2 of the Partnership Agreement, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) 15.2 of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b13.1(b)(i) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in the event that (i) KMEP pays a cash distribution in respect of each Common Unit and pays a corresponding distribution of additional I-Units, or fractions thereof, in respect of the I-Units, or (ii) in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, the record holders of Common Units and Class B Units receive a cash distribution and the record holder of I-Units receives a corresponding distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made in respect of each Listed Share. Except as provided in the Purchase Provisions, such Share Distribution in respect of each Listed Share shall be made on the date on which KMEP makes a cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B and are an integral part of this Agreement.
(ih) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kinder Morgan Management LLC)
Listed Shares. (a) As of the Closing Date, there shall be Outstanding [_________] 14,875,000 Listed Shares, and, in the event that the Underwriters exercise their option to purchase additional Listed Shares pursuant to the Underwriting Agreement, there shall be Outstanding up to [_________] 17,106,250 Listed Shares. The Listed Shares shall initially be listed on a National Securities Exchange. The designations, preferences and relative, participating, optional or other special rights, powers and duties relating to the Listed Shares are as set forth in this Section 4.3. Each Listed Share shall be identical in every respect with each other Listed Share.
(b) The Record Holders of Listed Shares, in their capacity as such, shall not be entitled to vote except that each Record Holder of Listed Shares shall be entitled to one vote per Listed Share on any matter submitted by the Company to the Record Holders of Listed Shares pursuant to Subsections 4.3(c) or (d) or Article 9 of this Agreement, Section 6 of the Exchange Provisions Agreement or Section 8 of the Purchase Provisions, subject to Subsection 4.3(e).
(c) The Partnership Agreement provides that, except with respect to certain matters, including certain amendments to the Partnership Agreement, the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP, the withdrawal of the general partner of KMEP and the treatment of KMEP as an association taxable as a corporation or other entity for federal income tax purposes, the I-Units, Class B Units and Common Units are entitled to vote together as a single class, and each I-Unit is entitled to one vote. The Company or the Board of Directors shall submit to the vote of the Record Holders of Listed Shares entitled to vote any matter on which the Company is entitled to vote as a record holder of I-Units in order to ascertain the manner in which such I-Units shall be voted. For each Listed Share or fraction thereof that has been voted "for" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "for" such corresponding matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "for" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "for" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "for" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has been voted "against" the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall vote one I-Unit or an equivalent fraction "against" such matter when presented to the record holder of I-Units, such that the number of Listed Shares voted "against" such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares voted "against" such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units voting "against" such corresponding matter when presented to the record holder of I-Units. For each Listed Share or fraction thereof that has abstained from the vote or has not been voted, whether by broker non-vote or otherwise, on the matter presented to Record Holders of Listed Shares entitled to vote thereon, the Company shall abstain from voting one I-Unit or an equivalent fraction on such matter when presented to the record holder of I-Units, such that the number of Listed Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Listed Shares, in addition to the number of Voting Shares that have abstained from voting or have not been voted on such matter presented to the Record Holders of Voting Shares pursuant to Subsection 4.2(d), shall equal the number of I-Units abstaining from voting on such corresponding matter when presented to the record holder of I-Units.
(d) The Company or the Board of Directors shall submit to the vote of Record Holders of Listed Shares entitled to vote thereon, in addition to the matters referred to in Subsection 4.3(c), (i) any matter for which the approval of the Record Holders of Listed Shares is required pursuant to Article 9, (ii) any proposed issuance of any new shares into which the interest in the Company may be divided other than the Voting Shares and the Listed Shares, and (iii) any proposed amendment to, or alteration or repeal of, this Agreement, including the Exchange Provisions and the Purchase Provisions, the Registration Rights Agreement, the Delegation of Control Agreement, or the Tax Indemnification Agreement if such proposed amendment, alteration or repeal would (A) reduce the time for any notice to which Record Holders of Listed Shares would be entitled, or (B) have a material adverse effect on the Company or the rights or preferences of Listed Shares, as determined in the sole discretion of the Board of Directors; provided, however, that any of the following amendments shall not be deemed to have a material adverse effect on the rights and preferences of Listed Shares: (1) any amendment that is necessary or desirable to comply with applicable Law, compliance with which the Board of Directors determines in its sole discretion to be in the best interests of the Company and the Shareholders, and (2) any amendment that is required to effect the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement.
(e) The following Persons or Groups, as the case may be, shall not be entitled to vote in their capacities as Record Holders of Listed Shares:
: (i) any Person or Group, excluding the Record Holders of Voting Shares and their Affiliates, if the sum of the number of Listed Shares Beneficially Owned by such Person or Group plus the number of Common Units Beneficially Owned by such Person or Group equals 20% or more of the sum of the aggregate number of Listed Shares that are Outstanding plus the aggregate number of Common Units that are Outstanding, and (ii) the Record Holders of Voting Shares and their Affiliates with respect to (A) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(c) in order to determine the manner in which I-Units shall be voted with respect to (1) the proposed removal of the general partner of KMEPKMEP under Section 13.2 of the Partnership Agreement, (2) any vote required to be taken under Section 11.2(a) of the Partnership Agreement with respect to the transfer of all, but not less than all, of the Partnership Interest (as defined in the Partnership Agreement) of the general partner of KMEP and the admission of any such transferee as a general partner of KMEP, (3) a proposed amendment to the terms of the I-Units pursuant to Subsection 15.3(c) 15.2 of the Partnership Agreement that would have a material adverse effect on the rights and preferences of the I-Units in relation to other classes of Units, as determined in the sole discretion of the Board of Directors, or (4) the proposed withdrawal of the general partner of KMEP pursuant to Section 13.1(b13.1(b)(i) of the Partnership Agreement, and (B) a matter that is presented to the Record Holders of Listed Shares pursuant to Subsection 4.3(d).
(f) Except as otherwise provided in Subsection 4.1(b) and Section 4.5, a Share Distribution in respect of each Listed Share shall be made only in the event that (i) KMEP pays a cash distribution in respect of each Common Unit and pays a corresponding distribution of additional I-Units, or fractions thereof, in respect of the I-Units, or (ii) in a merger, consolidation, exchange, reorganization, recapitalization or similar transaction, the record holders of Common Units and Class B Units receive a cash distribution and the record holder of I-Units receives a corresponding distribution of additional I-Units, or fractions thereof; and no other Share Distribution shall be made in respect of each Listed Share. Except as provided in the Purchase Provisions, such Share Distribution in respect of each Listed Share shall be made on the date on which KMEP makes a cash distribution in respect of each Common Unit. Each such Share Distribution per Listed Share shall be an additional Listed Share, or a fraction thereof, equal to the amount of the cash distribution made by KMEP in respect of each Common Unit divided by the Average Market Price per Listed Share. Except as otherwise provided in Subsection 7.2(b), no distribution in respect of Listed Shares shall be made in cash. Each fractional Listed Share that is created as a result of any Share Distribution in respect of Listed Shares pursuant to this Subsection 4.3(f) shall be equal to and represented by a fraction that is calculated to six decimal places (without rounding), and any calculation that would result in a fractional interest in excess of one-millionth (1/1,000,000) of a Listed Share shall be disregarded without payment or other consideration and shall not be accumulated. Each Listed Share or fraction thereof issued as a Share Distribution shall bear a date of original issuance which is the same as the date on which such Share Distribution was made and shall be duly authorized, fully paid and nonassessable. The Company shall identify the Record Holders entitled to receive any Share Distribution in accordance with Section 3.5.
(g) Record Holders of Listed Shares are entitled to exchange any or all of their Listed Shares for Common Units held by KMI or its Affiliates or, at the election of KMI, for cash, subject to the terms and conditions set forth in the Exchange Provisions.
(h) Under certain circumstances set forth in the Purchase Provisions, Shareholders may be required to sell their Listed Shares to the Purchaser (as defined in the Purchase Provisions). The Purchase Provisions also set forth the rights of the Record Holders of Listed Shares to any distributions, including Share Distributions, on Listed Shares that have been declared (or a record date for which has been set) but that have not been paid or made. The Purchase Provisions are attached as Annex B and are an integral part of this Agreement.
(ih) Fractions of Listed Shares shall not be sold on a National Securities Exchange until they equal, in the aggregate, whole Listed Shares.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kinder Morgan Management LLC)
