Restrictions on Transfers of Units. (a) Prior to the fifth anniversary of the Effective Date, no Member shall Transfer any of its Units except for any Transfer (i) made with the prior written consent of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such Transfer and such prospective Transferee complies with, and is subject to the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13. From and after the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the consent of any other Member; provided that any such Transferee is not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 below. (b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person. (c) Unless otherwise waived by the Managing Member, for so long as the Company is a partnership for U.S. federal income tax purposes, in no event may any Transfer of any Units by any Member be made if (i) such Transfer would cause a termination of the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in the Company at any time during its taxable year having more than 100 partners within the meaning of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax years, (iii) such Transfer would otherwise result in the Company being treated as a “publicly traded partnership,” as such term is defined in Section 7704(b) of the Code and the regulations promulgated thereunder, or otherwise cause the Company to cease being classified as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13. (d) Notwithstanding anything to the contrary in this Agreement, a Member may not Transfer all or any portion of any of such Member’s Units without the written consent of the Managing Member, if such Transfer (i) would be to any Person that, as of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory Event. (e) All Transfers of Units shall require that a written notice of such Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect. (f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of this Agreement shall be null and void and of no force or effect, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members. (g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except in connection with a Transfer of all of the Managing Member’s Class A Units. If the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance with the terms hereof, its Transferee shall be automatically admitted to the Company, without any future action required by any party hereto, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services Agreement. (h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 3 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (CAESARS ENTERTAINMENT Corp), Limited Liability Company Agreement (Caesars Acquisition Co)
Restrictions on Transfers of Units. (a) Prior Subject to compliance with Section 3.5, Section 3.6 and Section 3.8 and the fifth anniversary remainder of this Section 3.4, each Member may Transfer any right, title or interest in or to any or all of its Units, without the consent of the Effective DateBoard of Directors or any other Member; provided, no Member shall Transfer any of its Units except for any Transfer (i) made with however, that without the prior written consent of the Managing MemberBoard of Directors and the holders of a Majority in Class A Interest, (i) prior to a Qualifying IPO (as defined in the Exit Facilities Credit Agreement), no Member shall Transfer, including any Involuntary Transfer, any right, title in or to any or all of its Units to the extent such Transfer would result in (A) fifty percent (50%) of the Units held by such Member as of the Effective Date ceasing to be beneficially owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), in the aggregate, directly or indirectly, by the Permitted Holders (as defined in the Exit Facilities Credit Agreement) or (B) a majority of the issued and outstanding Units ceasing to be beneficially owned (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), in the aggregate, directly or indirectly, by the Permitted Holders (as defined in the Exit Facilities Credit Agreement) and (ii) no Member shall Transfer, including any Involuntary Transfer, any right, title in or to any or all of its Units without Transferring the same pro rata portion of all Takeback Notes (as defined in the Plan) held by such Member to the same Transferee and, in each case, any and all attempts to do otherwise shall be null and void ab initio and of no force or effect whatsoever; provided, further, that, to the extent any Member that holds any rights in respect of voting on the appointment of Directors under the Certificate or this Agreement Transfers, or attempts to Transfer, any Units in violation of this Section 3.4, Section 3.5, Section 3.6 or Section 3.8, such Member shall thereafter cease to have such rights and, for the avoidance of doubt, no such rights shall transfer to the Transferee with the Units if such Units were Transferred in violation of this Agreement. The restrictions on Transfers provided for in this Section 3.4 shall continue to apply to any subsequent Transferees.
(b) No Transfer (including an Involuntary Transfer) shall be effected pursuant to Section 3.4(a) without the satisfaction of the following conditions:
(i) The transferring Member shall have provided (A) notice to the Company at least fifteen (15) days prior to such Transfer, and (xB) such information and documents relating to the Transfer as reasonably requested by the Company;
(ii) The Transferor and Transferee shall execute and deliver to the Company such documents and instruments of conveyance as may be necessary or appropriate in the reasonable opinion of counsel to the Company to effect such Transfer, including execution by the Transferee of a joinder agreement substantially in the form attached hereto as Exhibit A, agreeing to be bound by the terms and conditions of this Agreement, and a transfer agreement substantially in the form attached hereto as Exhibit B; provided, that in the case of any Transfer of Units by CACInvoluntary Transfer, the prior written consent Transfer shall be confirmed by presentation to the Company of CEC, and (y) in the case legal evidence of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or such Transfer;
(iii) made All necessary third party consents shall have been obtained;
(iv) The Transferee shall have paid all reasonable out-of-pocket expenses incurred by the Company (including any legal and accounting fees) in accordance connection with Section 7.5such Transfer; provided thatand
(v) To the extent requested by the Board of Directors, delivery of such opinion, in each case, such Transfer and such prospective Transferee complies with, and is subject a form satisfactory to the termsBoard of Directors, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13. From and after that the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the consent of any other Member; provided that any such Transferee is will not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 below.
(b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including violate the Securities Act and or any state securities or “blue sky” laws applicable to the rules and regulations thereunder, applicable Gaming Laws and Company or the Act and no Transfers of Units shall to be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable PersonTransferred.
(c) Unless otherwise waived by the Managing Member, for so long as the Company is a partnership for U.S. federal income tax purposes, in no event may any Transfer of any Units by any Member be made if (i) such Transfer would cause a termination of the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in the Company at any time during its taxable year having more than 100 partners within the meaning of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax years, (iii) such Transfer would otherwise result in the Company being treated as a “publicly traded partnership,” as such term is defined in Section 7704(b) of the Code and the regulations promulgated thereunder, or otherwise cause the Company to cease being classified as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13.
(d) Notwithstanding anything to the contrary in this Agreementherein, no Transfer of Units shall be permitted, nor shall any Transferee become a Member may not Transfer all or any portion beneficial owner of any of such Member’s Units without the written consent of the Managing Memberpursuant to a Transfer, if such Transfer would cause (i) would the Company to register a class of securities under Section 12(g) of the Exchange Act or to be required to file reports with the SEC under Section 15(d) of the Exchange Act; (ii) the Company to be subject to liability or reporting obligations in any Person thatjurisdiction, whether domestic or foreign, or to become subject to the jurisdiction of any Governmental Authority anywhere, other than the liabilities, reporting obligations or jurisdictions to which the Company is subject as of the date of immediately preceding such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, ; or (iii) would be to noncompliance by the Company with any Personapplicable Requirements of Law, that, as of the date of such Transfer, would cause including any Regulatory Eventapplicable securities laws.
(ed) All Transfers A Transferee of Units shall require that shall, subject to compliance with this Section 3.4, become a written notice of such Member upon the Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect.
(f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of this Agreement shall be null and void and of no force or effectPerson, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books Schedule of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except in connection with a Transfer of all of the Managing Member’s Class A Units. If the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance with the terms hereof, its Transferee shall be automatically admitted to the Company, without any future action required by any party hereto, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services Agreementupdated accordingly.
(h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Sixth Street Partners Management Company, L.P.), Limited Liability Company Agreement (HG Vora Capital Management, LLC), Limited Liability Company Agreement (Hudson Bay Capital Management LP)
Restrictions on Transfers of Units. (a) Prior to the fifth anniversary of the Effective Date, no No Member shall may Transfer any of its Units except for any Transfer (i) made in an Exempt Transfer, or (ii) with the prior written consent approval of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such in accordance with the applicable terms of this Agreement. To the extent that THL, Public Co or Parent (as applicable) Transfers any or all of its Units pursuant to an Exempt Transfer and such prospective Transferee complies with, and is subject to the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13. From and after the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Member (other than pursuant to clause (c) of the Managing Member so long definition of Exempt Transfer), the defined terms “THL”, “Public Co” and “Parent” (as it is the Managing Memberapplicable) may Transfer its Units to any Person without the consent of any other Member; provided that any such Transferee is not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject deemed to Section 7.2 belowinclude the Transferee of such Exempt Transfer.
(b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(c) Unless otherwise waived by the Managing Member, for so long as the Company is a partnership for U.S. federal income tax purposes, in no event may any No Transfer of any Units by any Member shall become effective unless and until the Transferee (unless such Transferee already is party to this Agreement) executes and delivers to the Company a counterpart to this Agreement, agreeing to be made if treated in the same manner as the transferring Member. Upon such Transfer and such execution and delivery, the Transferee acquiring Transferred Units shall be bound by, and entitled to the benefits of, this Agreement in the same manner as the transferring Member.
(c) In addition to any other restrictions on Transfer imposed by this Agreement, no Member may Transfer any Unit (i) such Transfer would cause a termination of if the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in Managing Member determines that the Company at any time during its taxable year having more than 100 partners within the meaning could, as a result of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax yearssuch Transfer, (iii) such Transfer would otherwise result in the Company being be treated as a “publicly traded partnership,” within the meaning of Section 7704(b) of the Code and (ii) without first delivering to the Managing Member, if requested, an opinion of nationally recognized tax counsel or consultant (reasonably acceptable in form and substance to the Managing Member) that such Transfer will not cause the Company to be deemed a “publicly traded partnership” as such term is defined in Section 7704(b) of the Code and the regulations promulgated thereunder, or otherwise cause the Company cease to cease being classified be taxable as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13.
(d) Any Member who effectively Transfers any Units pursuant to this Article VIII shall cease to be a Member with respect to such Units and shall no longer have any rights or privileges of a Member with respect to such Units (it being understood, however, that the applicable provisions of Section 4.2 shall continue to inure to such Person’s benefit). Nothing contained herein shall relieve any Member who Transfers any Units from any liability or obligation of such Member to the Company or the other Members with respect to such Units that may exist on the date of such Transfer or that is otherwise specified in the Act and incorporated into this Agreement or for any liability to the Company or any other Person for any breaches of any representations, warranties or covenants by such Member (in its capacity as such) contained herein or in other agreements with the Company.
(e) No Transfer (including an Exempt Transfer) of any Units by any Member (other than a Public Co Member) shall become effective unless an equal number of shares of Class B Common Stock are simultaneously cancelled or transferred to the transferee in accordance with Section 12.3(b).
(f) Notwithstanding anything to the contrary in this Agreementherein, a Member may not Transfer all or any portion of any of such Member’s Units without the prior written consent approval of the Managing Member, if such Transfer (i) would be to any Person that, as of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory Event.
(e) All Transfers of Units shall require that a written notice of such Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect.
(f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of this Agreement shall be null and void and of no force or effect, and the Company THL shall not recognize or be bound by Transfer any such purported Transfer and shall not effect any such purported Transfer on the transfer books Units of the Company or Capital Accounts Class B Common Stock to any Competitive Business (as defined below) or any direct or indirect Affiliate thereof. “Competitive Business” shall mean the business competitors of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except in connection with a Transfer of all of the Managing Member’s Class A Units. If the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance with the terms hereof, its Transferee shall be automatically admitted to the Company, without any future action required by any party heretoPublic Co, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services AgreementFidelity or Parent.
(h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Black Knight Financial Services, Inc.), Limited Liability Company Agreement (Black Knight Financial Services, Inc.)
Restrictions on Transfers of Units. (a) Prior to the fifth anniversary of the Effective Date, no Member shall The Class B Members may not Transfer any of its Class B Units except for any Transfer (i) made in an Exempt Transfer, or (ii) with the prior written consent approval of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such Transfer and such prospective Transferee complies with, and is subject to in accordance with the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13applicable terms of this Agreement. From and after To the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the consent of any other Member; provided extent that any Class B Member Transfers any or all of its Class B Units pursuant to an Exempt Transfer, such Transferee is not a Competitor shall have the same rights and restrictions with respect to CEC and such Transfer and Class B Units as the Class B Member that Transferred such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 belowUnits.
(b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(c) Unless otherwise waived by the Managing Member, for so long as the Company is a partnership for U.S. federal income tax purposes, in no event may any No Transfer of any Units by any Member shall become effective unless and until the Transferee (unless such Transferee already is party to this Agreement) executes and delivers to the Company a counterpart to this Agreement, agreeing to be made if treated in the same manner as the transferring Member. Upon such Transfer and such execution and delivery, the Transferee acquiring Transferred Units shall be bound by, and entitled to the benefits of, this Agreement in the same manner as the transferring Member.
(c) In addition to any other restrictions on Transfer imposed by this Agreement, no Member may Transfer any Unit (i) such Transfer would cause a termination of if the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in Managing Member determines that the Company at any time during its taxable year having more than 100 partners within the meaning could, as a result of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax yearssuch Transfer, (iii) such Transfer would otherwise result in the Company being be treated as a “publicly traded partnership,” within the meaning of Section 7704(b) of the Code and (ii) without first delivering to the Managing Member, if requested, an opinion of nationally recognized tax counsel or consultant (reasonably acceptable in form and substance to the Managing Member) that such Transfer will not cause the Company to be deemed a “publicly traded partnership” as such term is defined in Section 7704(b) of the Code and the regulations promulgated thereunder, or otherwise cause the Company cease to cease being classified be taxable as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13.
(d) Any Member who effectively Transfers any Units pursuant to this Article VIII shall cease to be a Member with respect to such Units and shall no longer have any rights or privileges of a Member with respect to such Units (it being understood, however, that the applicable provisions of Section 4.2 shall continue to inure to such Person’s benefit). Nothing contained herein shall relieve any Member who Transfers any Units from any liability or obligation of such Member to the Company or the other Members with respect to such Units that may exist on the date of such Transfer or that is otherwise specified in the Act and incorporated into this Agreement or for any liability to the Company or any other Person for any breaches of any representations, warranties or covenants by such Member (in its capacity as such) contained herein or in other agreements with the Company.
(e) Notwithstanding anything to the contrary in this Agreementherein, a Member may not Transfer all or any portion of any of such Member’s Units without the prior written consent approval of the Managing Member, if such no Management Member shall Transfer (i) would be any Management Units to any Person that, Competitive Business (as defined below) or any direct or indirect Affiliate thereof. “Competitive Business” shall mean the business competitors of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory EventCompany.
(e) All Transfers of Units shall require that a written notice of such Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect.
(f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of this Agreement shall be null and void and of no force or effect, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except in connection with a Transfer of all of the Managing Member’s Class A Units. If the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance with the terms hereof, its Transferee shall be automatically admitted to the Company, without any future action required by any party hereto, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services Agreement.
(h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (J. Alexander's Holdings, Inc.), Limited Liability Company Agreement (J. Alexander's Holdings, Inc.)
Restrictions on Transfers of Units. (a) Prior Notwithstanding the other provisions of this Article IX, no Transfer of any Units shall be made if such Transfer would (i) violate the then applicable Laws or rules and regulations of the SEC, any state securities commission or any other Governmental Authority with jurisdiction over such Transfer, (ii) terminate the existence or qualification of the Company under the laws of the jurisdiction of its formation, (iii) cause the Company to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (if not already so treated or taxed) or (iv) cause the Company to be required to register as an investment company under the Investment Company Act of 1940 or subject the Company or its Subsidiaries or any of the Partnership Group to the fifth anniversary Investment Advisers Act of 1940 or the Effective DateEmployee Retirement Income Security Act of 1974, no each as amended.
(b) Except for Transfers made pursuant to and in compliance with Sections 9.4, 9.5 and 9.7, any Transfer of Units by any Member or any of their Affiliates shall be consummated only in accordance with this Section 9.3(b) as follows:
(i) No Member shall Transfer all or any portion of its Units or, until the occurrence of a Qualified Public Offering or as permitted by Section 4.5(c) of the Partnership Agreement, Limited Partner Interests of the Partnership, without the prior written consent (which such consent shall not be unreasonably withheld, delayed or conditioned) of a majority of the Board (which majority shall include at least one Harbinger Director, so long as the Harbinger Member is entitled to appoint a Director, and at least one EXCO Director, so long as the EXCO Member is entitled to appoint a Director); provided, that such consent shall not be required for (A) a Permitted Transfer, (B) a bona fide pledge by a Member of its Units (the “Pledged Interests”) to a lender of such Member or an agent for such lender (in such capacity, together with its successors and assigns, in such capacity, a “Lender”) if such Member provides at least ten (10) days advance written notice of such pledge to the non-pledging Members and such pledging arrangement provides that the non-pledging Members will have thirty (30) days to cure any default of the pledging Member prior to such Lender initiating foreclosure proceedings on the Pledged Interests (a “Bona Fide Pledge”) or (C) foreclosure upon Pledged Interests by a Lender (a “Foreclosure”). In the event of (1) a Foreclosure by a Lender on either (x) a pledge of a Member’s Units or (y) an indirect pledge of Equity Interests of such Member one or more Persons directly or indirectly Controlling any Equity Interests in such Member (other than a Member’s ultimate public parent company) or (2) a Transfer of Pledged Interests by a Lender to another Person, then the proportionate amount of such Units subject to such Foreclosure shall, for purposes of any rights or obligations set forth herein, be treated as having been Transferred by such Member to a third party that is not an Affiliate of such Member.
(ii) Notwithstanding Section 9.3(b)(i), the EXCO Member shall not Transfer all or any portion of its Units (except for any Transfer (ipursuant to a Permitted Transfer, Bona Fide Pledge or Foreclosure) made with without the prior written consent of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such Transfer and such prospective Transferee complies with, and is subject to the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13. From and after the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Harbinger Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the which such consent of any other Membershall not be unreasonably withheld, delayed or conditioned); provided provided, that any such Transferee is not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 below.
(b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(c) Unless otherwise waived by the Managing Member, for so long as EXCO or another member of EXCO Group remains an operator under either of the Company is Operating Agreements, it shall not be deemed unreasonable for the Harbinger Member to withhold its consent to any such Transfer by the EXCO Member (except pursuant to a partnership for U.S. federal income tax purposesPermitted Transfer, in no event may any Transfer of any Units Bona Fide Pledge or Foreclosure or following a Qualified Public Offering) if the transferee does not have, prior to such Transfer, the same or better credit ratings (by any Member be made if (i) such Transfer would cause a termination of the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in the Company at any time during its taxable year having more than 100 partners within the meaning of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax years, (iii) such Transfer would otherwise result in the Company being treated as a “publicly traded partnershipnationally recognized statistical rating organization,” as such term is defined in Section 7704(bby the SEC for purposes of Rule 436(g)(2) of under the Code Securities Act) and substantially the regulations promulgated thereunder, or otherwise cause the Company to cease being classified same operational capability as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13EXCO.
(dc) Notwithstanding anything to In the contrary in this Agreement, a Member may not Transfer all or any portion of any of such Member’s Units without the written consent of the Managing Member, if such Transfer (i) would be to any Person that, as of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory Event.
(e) All Transfers of Units shall require event that a written notice of such Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect.
(f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of under this Agreement shall be null and void and of no force subject to Section 9.4, 9.5 or effect, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except 9.7 occurs in connection with a Transfer of all Common Units or other Limited Partner Interests of the Managing Member’s Class A Units. If Partnership subject to similar rights of first refusal, tag-along rights or drag-along rights under the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance Partnership Agreement, such rights shall be exercised substantially concurrently with the terms hereof, its Transferee shall be automatically admitted to rights under the Company, without any future action required by any party hereto, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services Agreement.
(h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes foregoing sections of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Harbinger Group Inc.)
Restrictions on Transfers of Units. (a) Prior to Unless approved by the fifth anniversary of the Effective DateBoard, no Member shall shall, directly or indirectly, Transfer any of its Units except for any Transfer (i) made Membership Interest unless in compliance with the prior written consent of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such Transfer and such prospective Transferee complies with, and is subject to the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and this Article 13. From and after the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the consent of any other Member; provided that any such Transferee is not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 belowIX.
(b) Transfers of Units otherwise permitted Unless approved or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(c) Unless otherwise waived by the Managing MemberBoard of Directors in its sole discretion and in addition to conditions in Section 9.9(a), for so long as the Company is a partnership for U.S. federal income tax purposes, in no event may any Transfer of any Units by any Member Units, including pursuant to a Permitted Transfer, shall be made if subject to the satisfaction of the following conditions:
(i) (x) such Transfer would not cause a termination of the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in the Company at any time during its taxable year having more than 100 partners within the meaning of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax years, (iii) such Transfer would otherwise result in the Company being treated as to become a “publicly traded partnership,” as such term is defined in Code Section 469(k)(2) or Code Section 7704(b) or (y) the Board determines in good faith that such Transfer would otherwise not adversely affect any of the Code and the regulations promulgated thereunder, or otherwise cause Members of the Company or reasonably be expected to cease being classified do so in a future period as a partnership result of the classification of the income of the Company for purposes of such Sections of the Code;
(ii) such Transfer does not require the registration or qualification of such Units pursuant to any applicable federal or state income tax purposes, or securities Laws;
(iii) such Transfer does not result in a violation of applicable Laws;
(iv) such Transfer would not cause the Company to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in ERISA Section 3(14)) or a “disqualified person” (as defined in Code Section 4975(c));
(v) such Transfer would not, in the opinion of legal counsel to the Company, cause any portion of the assets of the Company to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.2-101;
(vi) such Transfer is not made to any Person who lacks the legal right, power or capacity to own Units;
(vii) such Transfer does not comply cause the Company to become a reporting company under the Exchange Act; and
(viii) such Transfer does not subject the Company to regulation under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended.
(c) No Member may Transfer its Membership Interest or any other Company Securities to any business competitor of the Group (or any party that beneficially owns (directly or indirectly, whether alone or in concert with Article 13other parties) greater than five percent (5%) of the voting shares (or equivalent) of such a competitor, or any Affiliate of such a party) without approval of the Board of Directors, unless pursuant to the exercise of a Tag-Along Sale or Drag- Along Sale.
(d) Notwithstanding anything to the contrary in this Agreement, a No Member may not shall Transfer all or any portion of any of such Member’s its Units without unless the written consent of proposed transferee executes a Joinder Agreement substantially in the Managing Member, if such Transfer (i) would be to any Person that, form attached as of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory EventExhibit E hereto.
(e) All Transfers of Units issued to any Person shall require that bear a written notice of such Transfer legend, or be evidenced by notations in a book entry system including a legend, in substantially the following form: “THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO VARIOUS CONDITIONS INCLUDING CERTAIN RESTRICTIONS ON ANY OFFER, SALE, DISPOSITION, TRANSFER AND VOTING AS SET FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF AUGUST [31], 2020 (including the number of Units to be TransferredAS MAY BE AMENDED FROM TIME TO TIME, THE “LLC AGREEMENT”) signed by the Transferor and Transferee be provided to the Managing Member at least ten OF BRUIN PURCHASER LLC (10) Business Days before such Transfer is given effectTHE “COMPANY”). NO REGISTRATION OR TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS AND RECORDS OF THE COMPANY OR ITS TRANSFER AGENT UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED WITH. THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF RECORD OF SUCH SECURITIES A COPY OF THE LLC AGREEMENT CONTAINING THE ABOVE REFERENCED RESTRICTIONS ON TRANSFERS AND VOTING OF SECURITIES UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
(f) Transfers of Units The Company acting in good faith may only be made make any necessary modifications to the legends set forth in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so Section 9.2 for such legends to comply with all applicable provisions Law and to achieve the purpose and intent of this Agreement shall be null and void and of no force or effect, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except in connection with a Transfer of all of the Managing Member’s Class A Unitsset forth herein. If the Managing Member transfers all of the Managing Member’s Class A any Units of the Company in accordance with the terms hereof, its Transferee shall be automatically admitted to the Company, without any future action required by any party hereto, as the Managing Member upon its agreement cease to be bound by this Agreement, the Registration Rights Agreement subject to any and the Management Services Agreement.
(h) Notwithstanding anything to the contrary all restrictions on Transfer set forth in this Agreement, any Transfer the Company, upon the written request of the holder thereof, shall amend the notations in the book entry system (or, if certificated, issue to such holder a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes of this Agreement, unless (inew certificate) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) evidencing such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Memberaccordingly.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Restrictions on Transfers of Units. (a) Prior Notwithstanding the other provisions of this Article IX, no Transfer of any Units shall be made if such Transfer would (i) violate the then applicable Laws or rules and regulations of the SEC, any state securities commission or any other Governmental Authority with jurisdiction over such Transfer, (ii) terminate the existence or qualification of the Company under the laws of the jurisdiction of its formation, (iii) cause the Company to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (if not already so treated or taxed) or (iv) cause the Company to be required to register as an investment company under the Investment Company Act of 1940 or subject the Company or its Subsidiaries or any of the Partnership Group to the fifth anniversary Investment Advisers Act of 1940 or the Effective DateEmployee Retirement Income Security Act of 1974, no each as amended.
(b) Except for Transfers made pursuant to and in compliance with Sections 9.4, 9.5 and 9.7, any Transfer of Units by any Member or any of their Affiliates shall be consummated only in accordance with this Section 9.3(b) as follows:
(i) No Member shall Transfer all or any portion of its Units or, until the occurrence of a Qualified Public Offering or as permitted by Section 4.5(c) of the Partnership Agreement, Limited Partner Interests of the Partnership, without the prior written consent (which such consent shall not be unreasonably withheld, delayed or conditioned) of a majority of the Board (which majority shall include at least one Harbinger Director, so long as the Harbinger Member is entitled to appoint a Director, and at least one EXCO Director, so long as the EXCO Member is entitled to appoint a Director); provided, that such consent shall not be required for (A) a Permitted Transfer, (B) a bona fide pledge by a Member of its Units (the “Pledged Interests”) to a lender of such Member or an agent for such lender (in such capacity, together with its successors and assigns, in such capacity, a “Lender”) if such Member provides at least ten (10) days advance written notice of such pledge to the non-pledging Members and such pledging arrangement provides that the non-pledging Members will have thirty (30) days to cure any default of the pledging Member prior to such Lender initiating foreclosure proceedings on the Pledged Interests (a “Bona Fide Pledge”) or (C) foreclosure upon Pledged Interests by a Lender (a “Foreclosure”). In the event of (1) a Foreclosure by a Lender on either (x) a pledge of a Member’s Units or (y) an indirect pledge of Equity Interests of such Member by one or more Persons directly or indirectly Controlling any Equity Interests in such Member (other than a Member’s ultimate public parent company) or (2) a Transfer of Pledged Interests by a Lender to another Person, then the proportionate amount of such Units subject to such Foreclosure shall, for purposes of any rights or obligations set forth herein, be treated as having been Transferred by such Member to a third party that is not an Affiliate of such Member.
(ii) Notwithstanding Section 9.3(b)(i), the EXCO Member shall not Transfer all or any portion of its Units (except for any Transfer (ipursuant to a Permitted Transfer, Bona Fide Pledge or Foreclosure) made with without the prior written consent of the Managing Member, and (x) in the case of any Transfer of Units by CAC, the prior written consent of CEC, and (y) in the case of any Transfer of Units by any CEC Member, the prior written consent of CAC, (ii) made to any of the transferring Member’s Permitted Transferees, or (iii) made in accordance with Section 7.5; provided that, in each case, such Transfer and such prospective Transferee complies with, and is subject to the terms, conditions and limitations of, Section 3.4, clauses (b)-(g) below and Article 13. From and after the fifth anniversary of the Effective Date, subject to Section 3.4, and clauses (b)-(g) below, any Harbinger Member (other than the Managing Member so long as it is the Managing Member) may Transfer its Units to any Person without the which such consent of any other Membershall not be unreasonably withheld, delayed or conditioned); provided provided, that any such Transferee is not a Competitor to CEC and such Transfer and such Transferee complies with Article 13. Without limiting the foregoing, any proposed Transfer of Units by any CEC Member shall be subject to Section 7.2 below.
(b) Transfers of Units otherwise permitted or required by this Agreement may only be made in compliance with federal and state securities laws, including the Securities Act and the rules and regulations thereunder, applicable Gaming Laws and the Act and no Transfers of Units shall be made to any Person (other than the Managing Member) that is not a “qualified purchaser” under the Investment Company Act, or who is an Unsuitable Person or an Affiliate of an Unsuitable Person.
(c) Unless otherwise waived by the Managing Member, for so long as EXCO or another member of EXCO Group remains an operator under either of the Company is Operating Agreements, it shall not be deemed unreasonable for the Harbinger Member to withhold its consent to any such Transfer by the EXCO Member (except pursuant to a partnership for U.S. federal income tax purposesPermitted Transfer, in no event may any Transfer of any Units Bona Fide Pledge or Foreclosure or following a Qualified Public Offering) if the transferee does not have, prior to such Transfer, the same or better credit ratings (by any Member be made if (i) such Transfer would cause a termination of the partnership for federal or state, if applicable, income tax purposes, (ii) such Transfer would result in the Company at any time during its taxable year having more than 100 partners within the meaning of Regulations § 1.7704-1(h)(1)(ii) (taking into account Regulations § 1.7704-1(h)(3)) unless the Company would satisfy the lack of actual trading safe-harbor set forth in Regulations § 1.7704-1(j) for all subsequent tax years, (iii) such Transfer would otherwise result in the Company being treated as a “publicly traded partnershipnationally recognized statistical rating organization,” as such term is defined in Section 7704(bby the SEC for purposes of Rule 436(g)(2) of under the Code Securities Act) and substantially the regulations promulgated thereunder, or otherwise cause the Company to cease being classified same operational capability as a partnership for federal or state income tax purposes, or (iv) such Transfer does not comply with Article 13EXCO.
(dc) Notwithstanding anything to In the contrary in this Agreement, a Member may not Transfer all or any portion of any of such Member’s Units without the written consent of the Managing Member, if such Transfer (i) would be to any Person that, as of the date of such Transfer, does not have documentary evidence reasonably supporting its ability to assume and promptly perform all of the obligations of the Transferor under this Agreement, (ii) would be to any Person, that, as of the date of such Transfer, cannot provide documentary evidence reasonably indicating such Person is not an Adverse Person or a Prohibited Person, or (iii) would be to any Person, that, as of the date of such Transfer, would cause any Regulatory Event.
(e) All Transfers of Units shall require event that a written notice of such Transfer (including the number of Units to be Transferred) signed by the Transferor and Transferee be provided to the Managing Member at least ten (10) Business Days before such Transfer is given effect.
(f) Transfers of Units may only be made in strict compliance with all applicable terms of this Agreement, and any purported Transfer of Units that does not so comply with all applicable provisions of under this Agreement shall be null and void and of no force subject to Section 9.4, 9.5 or effect, and the Company shall not recognize or be bound by any such purported Transfer and shall not effect any such purported Transfer on the transfer books of the Company or Capital Accounts of the Members. The Members agree that the restrictions contained in this Article 7 are fair and reasonable and in the best interests of the Company and the Members.
(g) Notwithstanding anything to the contrary in this Article 7, the Managing Member shall not have the right to resign as the managing member of the Company except 9.7 occurs in connection with a Transfer of all Common Units or other Limited Partner Interests of the Managing Member’s Class A Units. If Partnership subject to similar rights of first refusal, tag-along rights or drag-along rights under the Managing Member transfers all of the Managing Member’s Class A Units of the Company in accordance Partnership Agreement, such rights shall be exercised substantially concurrently with the terms hereof, its Transferee shall be automatically admitted to rights under the Company, without any future action required by any party hereto, as the Managing Member upon its agreement to be bound by this Agreement, the Registration Rights Agreement and the Management Services Agreement.
(h) Notwithstanding anything to the contrary set forth in this Agreement, any Transfer to a Permitted Transferee shall be deemed to be null and void at such time that the Permitted Transferee of any Transferor to which Units are Transferred ceases to be a Permitted Transferee of such Transferor and such Person shall cease to be a Member and shall be deemed to be an Assignee for all purposes foregoing sections of this Agreement, unless (i) such Transfer is otherwise permitted pursuant to another provision of this Agreement, or (ii) such Units are Transferred in accordance with this Agreement to a Person that is a Permitted Transferee of the original Transferor. Any such Assignee shall only receive the distributions and allocations of income, gain, loss, deduction, credit, or similar item to which the Member that transferred its Interest would be entitled, and such Assignee shall not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such Interest, remaining with the transferring Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Harbinger Group Inc.)