Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII. 8.2. Except as expressly provided in this Agreement, a Member will not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later acquired, unless: (a) the other Members unanimously approve the transferee’s admission to the Company as a Member on that Transfer; and (b) the Membership Interest to be Transferred, when added to the total of all other Membership Interests Transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that approval will be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the Membership Interest. A Transfer of a Member’s beneficial interest in the trust, or failure to retain the Voting Interest, will be deemed a Transfer of a Membership Interest. 8.3. If a Member wishes to Transfer any or all of the Member’s Membership Interest in the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitled.
Appears in 4 contracts
Samples: Operating Agreement, Operating Agreement, Operating Agreement
Transfers of Membership Interests. 8.1. A Member may withdraw from Upon the Company at any time by giving Notice death or Total Disability of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. Except as expressly provided in this Agreement, a Member will not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later acquired, unless: (a) the other Members unanimously approve the transferee’s admission to the Company as a Member on that Transfer; and (b) the Membership Interest to be Transferred, when added to the total of all other Membership Interests Transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that approval will be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is also a natural person may Transfer all Manager or any portion of his or her Membership Interest Officer, such affected Member shall cease to any revocable trust created for the benefit be a Member of the Member, Company. The affected Member or any combination between or among the Member, the affected Member’s spouse, and the Member’s issue, provided that the Member retains a beneficial interest in the trust and personal representative shall tender all of the Voting Membership Interest included in held by the Membership Interest. A Transfer affected Member within 60 days of a such Member’s beneficial interest in the trust, death or failure to retain the Voting Interest, will be deemed a Transfer of a Membership Interest.
8.3Total Disability. If a Member wishes to Transfer any or all of the Member’s Membership Interest in Within 60 days the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will shall have the option to purchase the tendered Membership Interest proposed at a price equal to the Percentage Interest of the Appraised Value. The “Appraised Value” means the total enterprise value of the Company as a going concern, without any minority ownership, lack of control, or lack of marketability discount, as determined by an independent business valuation expert with at least 5 years’ experience in valuing businesses similar to the Company, selected by a Majority of Members not including the affected Member. After selection, the valuation expert shall have 30 days to inform the Company in writing of the “Appraised Value.” Within 30 days of receiving the Appraised Value, the Company shall pay the greater of (i) life insurance or disability insurance proceeds received by the Company as a result of the death or Total Disability of the Member, or (ii) an amount equal to at least 10% of the purchase price at closing, and issue a promissory note for the balance of the purchase price (the “Purchase Price”). Any such promissory note shall bear interest at a rate equal to the applicable federal prime rate in effect for loans of similar amount and maturity. The principal shall be transferred at payable in equal annual installments over the price term determined by the purchaser, but in no event shall the term be longer than 10 years. Interest shall be payable quarterly and on if the terms provided federal prime rate in this Agreementeffect changes while principal or interest remains outstanding, the rate of interest payable under the note shall be adjusted quarterly. If Upon receipt of the price Purchase Price, the affected Member or affected Member’s personal representative shall deliver to the purchaser(s) bills of sale for the Membership Interest is being purchased, together with all other than cashdocuments necessary to transfer such Membership Interest, the fair value in dollars free and clear of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8claims. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interestdeclines this option, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated Units may be transferred as otherwise set forth in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledAgreement.
Appears in 2 contracts
Samples: Operating Agreement (Esoteric Brewing Company, LLC), Operating Agreement (Esoteric Brewing Company, LLC)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager all other Members at least 180 calendar days before the effective date of withdrawal. Withdrawal will shall not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will shall divest the Member’s 's entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. Except as expressly provided in this Agreement, a Member will shall not Transfer transfer any part of the Member’s 's Membership Interest in the Company, whether now owned or later acquired, unless: unless (a) the other Members unanimously approve the transferee’s 's admission to the Company as a Member on that upon such Transfer; , which approval shall be given or withheld by each Member in its sole and absolute discretion, and (b) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s 's Membership Interest in the Company unless the such Encumbrance has been approved in writing by the Manager. Approval Such approval may be granted or withheld in the Manager’s 's sole discretion. Any Transfer or Encumbrance of a Membership Interest without that such approval will shall be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s 's spouse, and the Member’s 's issue, ; provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the such Membership Interest. A Transfer of a Member’s 's beneficial interest in the such trust, or failure to retain the such Voting Interest, will shall be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer transfer any or all of the Member’s 's Membership Interest in the Company under pursuant to a Bona Fide Offer (as defined below), the Member will shall give Notice to the Manager all other Members at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will shall have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will shall be as established in good faith by the Company. For purposes of this Agreement, “"Bona Fide Offer” " means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will shall have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: of (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); ) and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will shall be given to the other Members for an additional 30-day period, beginning on the day that the Company’s 's right to purchase expires. Each of the other Members will shall have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s 's Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will section shall become an Assignee, and will shall be entitled to receive only the share of Profits or other compensation by way of income and the return of Capital Contribution to which the assigning Member would have been entitled.
Appears in 2 contracts
Samples: Contract of Sale (Impac Mortgage Holdings Inc), Contract of Sale (Impac Commercial Holdings Inc)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager Managers at least 180 calendar days before the effective date of withdrawal. Withdrawal will shall not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will shall divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. Except as expressly provided in this Agreement, a Member will shall not Transfer transfer any part of the Member’s Membership Interest in the Company, whether now owned or later acquired, unless: unless (a) the other Members unanimously approve the transferee’s admission to the Company as a Member on that Transfer; upon such Transfer and (b) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company unless the such Encumbrance has been approved in writing by the Manager. Approval Such approval may be granted or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that such approval will shall be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, ; provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the such Membership Interest. A Transfer of a Member’s beneficial interest in the such trust, or failure to retain the such Voting Interest, will shall be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer transfer any or all of the Member’s Membership Interest in the Company under pursuant to a Bona Fide Offer (as defined below), the Member will shall give Notice to the Manager all other Members at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will shall have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will shall be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will shall have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: of (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); ) and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will shall be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will shall have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will section shall become an Assignee, and will shall be entitled to receive only the share of Profits or other compensation by way of income and the return of Capital Contribution to which the assigning Member would have been entitled.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Transfers of Membership Interests. 8.1. 8.1 A Member may not withdraw from the Company at any time by giving Notice of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIIICompany.
8.2. 8.2 Except as expressly provided in this Agreement, a Member will shall not Transfer transfer any part of the Member’s Membership Interest in the Company, whether now owned or later acquired, unless: (aunless(a) the other Members unanimously approve the transferee’s admission to the Company as a Member on that Transfer; upon such Transfer and (b) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company unless the such Encumbrance has been approved in writing by the ManagerManaging Member. Approval Such approval may be granted or withheld in the ManagerManaging Member’s sole reasonable discretion. Any Transfer or Encumbrance of a Membership Interest without that such approval will shall be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer transfer all or any portion of his or her Membership Interest to any revocable trust trust, limited partnership or limited liability company created for the benefit of the Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, ; provided that the Member retains a beneficial interest in the trust trust, partnership or company and all is the controlling partner or Managing Member of the Voting Interest included in the Membership Interestpartnership or company. A Transfer of a Member’s beneficial interest in the such trust, or failure to retain the Voting Interest, will shall be deemed a Transfer of a Membership Interest.
8.38.3 On the happening of any of the following events (Triggering Events) with respect to a Member, the Company and the other Members shall have the option to purchase the Membership Interest in the Company of such Member (Selling Member) at the price and on the terms provided in Section 8.6 of this Agreement:
(a) The death or bankruptcy of a Member, or the winding up and dissolution of a corporate or limited liability company Member, or merger or other reorganization of a corporate or limited liability company Member as a result of which the corporate or limited liability company Member does not survive as an entity.
(b) The occurrence of any other event that is, or that would cause, a Transfer in contravention of this Agreement. Each Member agrees to promptly give Notice of a Triggering Event to all other Members.
8.4 On the receipt of Notice of any Triggering Event (the date of such receipt is hereinafter referred to as the “Option Date”), all Members, and the Company, shall have the option, for a period ending 30 calendar days following the determination of the purchase price as provided in Section 8.6, to purchase the Membership Interest in the Company to which the option relates, at the price and on the terms set forth in Section 8.8 of this Agreement, and the other Members, pro rata in accordance with their prior Membership Interests in the Company, shall then have the option, for a period of 30 days thereafter, to purchase the Membership Interest in the Company not purchased by the Company, on the same terms and conditions as apply to the Company. If a all other Members do not elect to purchase the entire remaining Membership Interest in the Company, then the Members electing to purchase shall have the right, pro rata in accordance with their prior Membership Interest in the Company, to purchase the additional Membership Interest in the Company available for purchase. The transferee of the Membership Interest in the Company that is not purchased shall hold such Membership Interest in the Company subject to all of the provisions of this Agreement.
8.5 Neither the Member wishes whose interest is subject to Transfer purchase under this Article, nor such Member’s Affiliate, shall participate in any Vote or all discussion of any matter pertaining to the disposition of the Member’s Membership Interest in the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the .
8.6 The purchase price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that is the Company does not elect subject of an option under Section 8.6 shall be the “Fair Option Price” of the interest as determined under this Section 8.6. “Fair Option Price” means the cash price that a willing buyer would pay to purchase, that right will be given to a willing seller when neither is acting under compulsion and when both have reasonable knowledge of the other Members for an additional 30-day period, beginning relevant facts on the day that the Company’s right to purchase expiresOption Date. Each of the other Members will have selling and purchasing parties shall use his, her, or its best efforts to mutually agree upon the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering MemberFair Option Price. If the Company parties are unable to so agree within 30 days of the Option Date, the selling party shall appoint, within 40 days of the Option Date, one appraiser, and the other Members do not exercise their rights to purchase all purchasing party shall appoint within 40 days of the Option Date, one appraiser. The two appraisers shall within a period of five additional days, agree upon and appoint an additional appraiser. The three appraisers shall, within 60 days after the appointment of the third appraiser, determine the Fair Option Price of the Membership InterestInterest in writing and submit their report to all the parties. The Fair Option Price shall be determined by disregarding the appraiser’s valuation that diverges the greatest from each of the other two appraisers’ valuations, and the offering Member mayarithmetic mean of the remaining two appraisers’ valuations shall be the Fair Option Price. Each purchasing party shall pay for the services of the appraiser selected by it, within 90 days from plus one half of the date fee charged by the Notice is given third appraiser, and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest one half of all other costs relating to the offeror named determination of Fair Option Price. The Fair Option Price as so determined shall be payable in cash within 60 days of the Notice. Unless determination of the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledFair Option Price.
Appears in 2 contracts
Samples: Operating Agreement (Mountain Falls, LLC), Operating Agreement (Mountain Falls, LLC)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. 8.1 Except as otherwise expressly provided in this Agreement, a Member will shall not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later hereafter acquired, unless: unless (a1) the other Members unanimously approve Manager approves the transferee’s admission to the Company as a Member on that Transfer; upon such Transfer and (b2) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the CodeCode and (3) the Membership Interest to be transferred does not cause a transfer tax or property reassessment with respect to the Property or the Project. No Member may Encumber or permit or suffer Manager shall be under any Encumbrance obligation whatsoever to approve the admission of all or any part a proposed transferee of the a Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretionInterest. Any attempted Transfer or Encumbrance of a Membership Interest without that such approval will shall be voidvoid and shall constitute the Withdrawal of a Member. Any Transfer of a Membership Interest which does not result in a change in the beneficial ownership of such Membership Interest shall not be subject to the restrictions set forth in this Section 8.1, and in such case, notwithstanding anything in this Agreement to the contrary, the transferee of such Membership Interest shall automatically be admitted to the Company as a Member, subject only to such transferee’s executing a counterpart of this Agreement as a party hereto. Notwithstanding the foregoing, any Transfer of a Membership Interest by Mackenzie shall be subject to the provisions of Section 8.14.
8.2 Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer all or any portion of his or her Membership Interest by devise to a family member (i.e., spouse, child, issue, niece or nephew, parent or sibling) (a “Family Member”); or to any revocable trust created for the benefit of the Member, or for any combination between or among the Member, the Member’s spouse, and the Member’s issue, issue or any other Family Member; provided that the Member is a Trustee during their lifetime, retains a beneficial interest in the trust and the Member as Trustee or individually possesses all of the Voting Interest included in the such Membership Interest. Any such trust shall be subject to the provisions of this Agreement, including but not limited to the limitation upon transfer to third parties of a Membership Interest and the valuation of such a Membership Interest in the event of a Withdrawal. A Transfer of a Member’s entire beneficial interest in the such trust, or a failure to retain the such Voting Interest, will or except upon death the Member ceasing to be the sole Trustee shall be deemed a Transfer of a Membership InterestInterest in contravention of this Agreement and hence a Triggering Event as defined in Section 8.5.
8.3. If a 8.3 No Member wishes to Transfer may Encumber or permit or suffer any Encumbrance of all or all any part of the Member’s Membership Interest in the Company under unless such Encumbrance has been approved in writing by all the other Members. Any Encumbrance of a Bona Fide Offer Membership Interest without such approval shall be void.
8.4 Notwithstanding any other provisions of this Agreement:
(as defined belowa) If, in connection with the divorce or dissolution of the marriage of a Member, any court issues a decree or order that transfers, confirms, or awards a Membership Interest, or any portion thereof, to that Member’s spouse (an “Award”), the then, notwithstanding that such transfer would constitute an unpermitted Transfer under this Agreement, that Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will shall have the option right to purchase from his or her former spouse the Membership Interest, or portion thereof, that was so transferred, and such former spouse shall sell the Membership Interest proposed or portion thereof to be transferred that Member at the price and on the terms provided determined in conformity with Section 8.10 of this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able Member has failed to consummate the purchase and who is not an Affiliate of the selling Member. For 30 within 180 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all date of the Membership InterestAward (the “Expiration Date”), then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights shall have the option to purchase all from the former spouse the Membership Interest or portion thereof pursuant to Section 8.9(a) and at a price determined in conformity with Section 8.10, provided that the Option Period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the Membership InterestAward, and continue for 180 days thereafter. For purposes of this Section and for purposes of this entire Agreement, the offering Member may, within 90 days from term “Option Period” shall mean the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that period during which an option to purchase a Member’s Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will can be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledexercised.
Appears in 2 contracts
Samples: Operating Agreement (MacKenzie Realty Capital, Inc.), Operating Agreement (MacKenzie Realty Capital, Inc.)
Transfers of Membership Interests. 8.1. 9.1 A Member may withdraw from the Company at any time by giving Notice of withdrawal Withdrawal to the Manager all other Members at least 180 calendar days before the effective date of withdrawal. Upon notice of intent to withdraw or resign, a Member shall become an Assignee in proportion to the Membership interest he held immediately prior to giving Notice of Withdrawal. Withdrawal will shall not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will shall have no right to a return of capital without the consent of all Company Managers; neither shall the non-withdrawing Members have any obligation to purchase the withdrawing Member’s Membership interest in the Company. A withdrawing Member shall divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with the transfer restrictions and subject to the provisions of option rights set forth in this Article VIIIOperating Agreement.
8.2. 9.2 Except as expressly provided in this Agreement, a Member will shall not Transfer any part of the Member’s Membership Interest Rights in the Company, whether now owned or later hereafter acquired, unless: (a) unless all the other Members unanimously approve the transferee’s admission to the Company as a Member on that upon such Transfer; and (b) .
9.3 On the Membership Interest to be Transferred, when added to the total happening of all other Membership Interests Transferred in the preceding 12 months, will not cause the termination any of the following events (Triggering Events) with respect to a Member, the Company under and the Code. No Member may Encumber or permit or suffer any Encumbrance of other Members shall have the option to purchase all or any part portion of the Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that approval will be void. Notwithstanding any other provision of this Agreement to the contrary, a such Member who is a natural person may Transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the (Selling Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the Membership Interest. A Transfer of a Member’s beneficial interest in the trust, or failure to retain the Voting Interest, will be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer any or all of the Member’s Membership Interest in the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred ) at the price and on the terms provided in Article IX of this Agreement:
(a) the death or incapacity of a Member;
(b) the bankruptcy of a Member;
(c) the winding up and dissolution of a Member who is not a natural person, or merger or other corporate reorganization of a Member who is not a natural person, as a result of which such Member who is not a natural person does not survive as an entity;
(d) the withdrawal of a Member; or
(e) the occurrence of any other event that is, or that would cause, a Transfer in contravention of this Agreement. If Each Member agrees to promptly give Notice of a Triggering Event to all other Members.
9.4 On the price for receipt of Notice by the Membership Interest other Members as contemplated by Section 9.1, and on receipt of actual notice of any Triggering Event (the date of such receipt is other than cashhereinafter referred to as the “Option Date”), the fair value in dollars Manager(s) shall promptly give notice of the price will be as established in good faith by the Company. For purposes occurrence of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willingsuch a Triggering Event to each Member, and able to consummate the Company shall have the option, for a period ending 30 calendar days following the determination of the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is givenprice as provided in Section 9.6, the Company will have the right to purchase the Membership Interest offeredin the Company to which the option relates, at the price and on the terms provided in Section 9.6, and the other Members, pro rata in accordance with their prior Membership Interests in the Company, shall then have the option, for a period of 30 days thereafter, to purchase the Membership Interest in the Company not purchased by the Company, on the same terms stated and conditions as apply to the Company. If all other Members do not elect to purchase the entire remaining Membership Interest in the NoticeCompany, for then the lesser of: (a) Members electing to purchase shall have the price stated right, pro rata in accordance with their prior Membership Interest in the Notice (or Company, to purchase the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth additional Membership Interest in Section 8.8. If the Company does available for purchase. The transferee of the Membership Interest in the Company that is not exercise purchased shall hold such Membership Interest in the right Company subject to purchase all of the provisions of this Agreement. Additionally, the transferee of an unpurchased interest is not a Member, unless and until such Membership Interestis consented to in accordance with the provisions of this Agreement. Until such consent is given, then, with respect the transferee of an unpurchased interest is an Assignee only.
9.5 No Member shall participate in any Vote or decision in any matter pertaining to the portion disposition of that Member’s Membership Interest in the Company under this Agreement.
9.6 The purchase price of the Membership Interest that is the Company does not elect to purchase, that right will subject of an option under this Agreement shall be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expiresFair Market Value of such Membership Interest as determined under this Section 9.6. Each of the selling and purchasing parties shall use his, her, or its best efforts to mutually agree on the Fair Market Value. If the parties are unable to so agree within 30 days of the date on which the option is first exercisable (the Option Date), the selling party shall appoint, within 40 days of the Option Date, one appraiser, and the purchasing party shall appoint within 40 days of the Option Date, one appraiser. The two appraisers shall within a period of five additional days, agree on and appoint an additional appraiser. The three appraisers shall, within 60 days after the appointment of the third appraiser, determine the Fair Market Value of the Membership Interest in writing and submit their report to all the parties. The Fair Market Value shall be determined by disregarding the appraiser’s valuation that diverges the greatest from each of the other Members will two appraisers’ valuations, and the arithmetic mean of the remaining two appraisers’ valuations shall be the Fair Market Value. Each purchasing party shall pay for the services of the appraiser selected by it, plus one-half of the fee charged by the third appraiser.
9.6.1 The terms of payment for the purchase of a Member’s interest may include a down payment and an installment note bearing reasonable interest, an up-front cash payment, or any other reasonable terms or form of payment as may be determined by the Managers.
9.7 Except as expressly permitted under Section 9.2, a prospective transferee (other than an existing Member) of a Membership Interest may be admitted as a Member with respect to such Membership Interest (Substituted Member) only (1) if the Managers unanimously consent, and (2) on such prospective transferee’s executing a counterpart of this Agreement as a party hereto. Any prospective transferee of a Membership Interest shall be deemed an Assignee only, until such prospective transferee has been admitted as a Substituted Member.
9.8 Any person admitted to the Company as a Substituted Member shall be subject to all provisions of this Agreement.
9.9 In the event that a Member's Interests are taken by xxxx, foreclosure, charging order, execution, or other similar proceeding, the Company shall not dissolve, but the assignee of said Interest shall be entitled to no more than to receive the profits and losses attributable to said Interests, and only when payable, in accordance with the assignee's Percentage Interest and, in no event, shall said assignee have the right to purchase, on interfere with the same terms, a part management or administration of the interest of the offering Company business or affairs or to become a Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only exercise the share rights of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitleda Member, i.e., become a substitute Member, except as is otherwise provided herein.
Appears in 1 contract
Samples: Operating Agreement
Transfers of Membership Interests. 8.1. A (a) Any Member may withdraw from Transfer its Membership Interests in compliance with the terms of this Agreement. Any attempted Transfer of Membership Interests other than in compliance with the terms of this Agreement shall be null and void and of no force or effect. Any Member that Transfers its Membership Interests shall promptly provide written notice thereof to the Administrative Member and the other Members.
(b) Except for any Transfer approved by the Managing Members, any Transfer by a Member of its Membership Interests must:
(i) be a Transfer to a Wholly-Owned Affiliate of such Member or a Transfer made in compliance with Article 10;
(ii) be made in compliance with Section 9.1(c), Section 9.1(d), Section 9.2 and Section 9.4;
(iii) be made in compliance with all applicable Laws;
(iv) not cause the Company at any time to be deemed to be an “investment company” under the Investment Company Act of 1940;
(v) be a Transfer to a Person that meets the Creditworthiness Requirements or whose obligations are guaranteed pursuant to a Guaranty issued by giving Notice its Ultimate Parent (or a Wholly-Owned Affiliate) that meets the Creditworthiness Requirements; and
(vi) for as long as the Company is classified as a partnership for Federal income tax purposes, (i) not be effectuated through an established securities market or a secondary market (or the substantial equivalent thereof) within the meaning of withdrawal to Section 7704 of the Manager at least 180 calendar days before Code or (ii) not otherwise result in the effective date Company being treated as a publicly traded partnership as such term is defined in Section 7704(b) of withdrawal. Withdrawal will not release a Member from any obligations the Code and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIIITreasury Regulations promulgated thereunder.
8.2. Except as expressly provided in this Agreement, (c) Any Transfer of Class A Membership Interests or Class B Membership Interests must be accompanied by a Member will not Transfer any part of the same relative percentage of the Member’s Class B Membership Interests or Class A Membership Interests, respectively, such that the transferee holds the same relative percentage of Class A Membership Interests and Class B Membership Interests as the transferor held before the Transfer.
(d) No transferee of a Class A Membership Interest in the Company, whether now owned or later acquired, unless: (a) the other Members unanimously approve the transferee’s admission to the Company as a Member on that Transfer; and (b) the Class B Membership Interest shall be entitled to be Transferredany Acceleration Action Distribution, when added to the total of all other Membership Interests Transferred in the preceding 12 monthsProhibited Action Distribution, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company Recoupment Distribution, unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that approval will be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who such transferee is a natural person may Transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the Membership Interest. A Transfer of a Member’s beneficial interest in the trust, or failure to retain the Voting Interest, will be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer any or all of the Member’s Membership Interest in the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Wholly-Owned Affiliate of the selling Member. For 30 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all of the Membership Interest, then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledtransferor.
Appears in 1 contract
Transfers of Membership Interests. 8.1(a) Except as set forth in this Article XII, no Transfer or offer to Transfer may be made by any holder of Membership Interests of all or any part of such Person’s Membership Interests in the Company. A Transfer of all of a Member’s Membership Interests shall terminate the Transferor’s status as a Member may withdraw from and the remaining Members are hereby authorized to continue the business of the Company at any time by giving Notice of withdrawal without dissolution.
(b) Subject to the Manager provisions of this Section 12.1, Transfers by the holders of Membership Interests only shall be permitted as follows:
(i) Each Member shall have, and at least 180 calendar days before all times, retain the effective date right to Transfer all or any portion of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the such Member’s entire Membership Interest before Interests to a Related Person, to an Affiliate or to a Trust for the effective date benefit of withdrawal a Related Person;
(ii) Upon the death of any holder of Membership Interests, such Membership Interests may be transferred to the beneficiaries of such deceased holder of Membership Interests pursuant to laws of descent and distribution if the beneficiary is a Person specified in accordance with and subject clause (i) above; and
(iii) A Transfer otherwise made pursuant to the provisions of this Article VIIIXII. The Person or Persons acquiring Membership Interests pursuant to the terms of this Article XII shall be referred to hereinafter individually as a “Permitted Transferee” and collectively as “Permitted Transferees.”
(c) A Transfer of Membership Interests in the Company shall be effective only upon satisfaction of the following conditions:
(i) The Membership Interests were acquired by a Transferee by means of a Transfer permitted under this Article XII;
(ii) The Transferee executes such documents and instruments as the Company may reasonably request as necessary or appropriate to confirm such Transfer, and such Transferee executes a joinder agreement agreeing to be bound by the terms and conditions hereof; and
(iii) The Transferee has paid all reasonable expenses incurred by the Company in connection with such Transfer, including, but not limited to, the cost of the preparation, filing and publishing of any amendment to the Company’s certificate of formation, as necessary, or any other amendments to this Agreement or other documents or filings and any legal or accounting fees.
8.2. Except as expressly provided in this Agreement, a Member will not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later acquired, unless: (ad) the other Members unanimously approve the transferee’s admission to the Company A Permitted Transferee shall be admitted as a Member on that Transfer; and (b) only with the Membership Interest to be Transferred, when added to the total of all other Membership Interests Transferred in the preceding 12 months, will not cause the termination written consent of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance Board of all or any part Managers in its sole and absolute discretion unless a Permitted Transferee is a Related Person, an Affiliate of the Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted Transferor or withheld in the Manager’s sole discretion. Any Transfer or Encumbrance of a Membership Interest without that approval will be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer all or any portion of his or her Membership Interest to any revocable trust created Trust for the benefit of the a Related Person or a Member. Unless admitted as a Member, or any combination between or among the Member, the Member’s spouse, and the Member’s issue, provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the Membership Interest. A Transfer of a Member’s beneficial interest in the trust, or failure to retain the Voting Interest, will be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer any or all of the Member’s Membership Interest in the Company under a Bona Fide Offer (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred at the price and on the terms provided in this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of the selling Member. For 30 days after the Notice is given, the Company will Permitted Transferee shall solely have the right to purchase the Membership Interest offeredreceive allocations of Net Profit and Net Loss pursuant to Article VIII, on the terms stated in the Noticedistributions pursuant to Articles IX and X and reports pursuant to Article XI and shall not have any other rights as a Member, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash considerationincluding, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise without limitation the right to Vote or purchase all of the Membership Interest, then, with respect Interests pursuant to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchaseArticle XII; provided, however, that such holder of Membership Interests shall be bound by all of the obligations of the Members set forth in this Agreement, including without limitation, the obligations to sell such Person’s Membership Interests in accordance with Article XII.
(e) No Transfer of Membership Interests, or any part thereof; that is in violation of this Article XII, shall be valid or effective against, or shall bind, the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If neither the Company and nor the Members shall recognize the same for the purpose of making allocations, Distributions or other payments pursuant to this Agreement with respect to such Membership Interests or part thereof. Neither the Company nor the non-transferring Members do not exercise their rights shall incur any liability as a result of refusing to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that Membership Interest make any such distributions to the offeror named in the Notice. Unless the requirements Transferee of Section 8.2 are metany such invalid Transfer, the offeror under this Section 8.3 will become an Assigneeor any other Person, and will be entitled no such purported Transferee shall have any right to receive only the share allocations or payments of any Net Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledNet Losses or distributions.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Medley Capital BDC LLC)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. 8.1 Except as otherwise expressly provided in this Agreement, a Member will shall not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later hereafter acquired, unless: unless (a1) the other Members unanimously approve Manager approves the transferee’s admission to the Company as a Member on that Transfer; upon such Transfer and (b2) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the CodeCode and (3) the Membership Interest to be transferred does not cause a transfer tax or property reassessment with respect to the Property or the Project. No Member may Encumber or permit or suffer Manager shall be under any Encumbrance obligation whatsoever to approve the admission of all or any part a proposed transferee of the a Member’s Membership Interest in the Company unless the Encumbrance has been approved in writing by the Manager. Approval may be granted or withheld in the Manager’s sole discretionInterest. Any attempted Transfer or Encumbrance of a Membership Interest without that such approval will shall be voidvoid and shall constitute the Withdrawal of a Member. Any Transfer of a Membership Interest which does not result in a change in the beneficial ownership of such Membership Interest shall not be subject to the restrictions set forth in this Section 8.11, and in such case, notwithstanding anything in this Agreement to the contrary, the transferee of such Membership Interest shall automatically be admitted to the Company as a Member, subject only to such transferee’s executing a counterpart of this Agreement as a party hereto. Notwithstanding the foregoing, any Transfer of a Membership Interest by Mackenzie shall be subject to the provisions of Section 8.14.
8.2 Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer all or any portion of his or her Membership Interest by devise to a family member (i.e., spouse, child, issue, niece or nephew, parent or sibling) (a “Family Member”); or to any revocable trust created for the benefit of the Member, or for any combination between or among the Member, the Member’s spouse, and the Member’s issue, issue or any other Family Member; provided that the Member is a Trustee during their lifetime, retains a beneficial interest in the trust and the Member as Trustee or individually possesses all of the Voting Interest included in the such Membership Interest. Any such trust shall be subject to the provisions of this Agreement, including but not limited to the limitation upon transfer to third parties of a Membership Interest and the valuation of such a Membership Interest in the event of a Withdrawal. A Transfer of a Member’s entire beneficial interest in the such trust, or a failure to retain the such Voting Interest, will or except upon death the Member ceasing to be the sole Trustee shall be deemed a Transfer of a Membership InterestInterest in contravention of this Agreement and hence a Triggering Event as defined in Section 8.5.
8.3. If a 8.3 No Member wishes to Transfer may Encumber or permit or suffer any Encumbrance of all or all any part of the Member’s Membership Interest in the Company under unless such Encumbrance has been approved in writing by all the other Members. Any Encumbrance of a Bona Fide Offer Membership Interest without such approval shall be void.
8.4 Notwithstanding any other provisions of this Agreement:
(as defined belowa) If, in connection with the divorce or dissolution of the marriage of a Member, any court issues a decree or order that transfers, confirms, or awards a Membership Interest, or any portion thereof, to that Member’s spouse (an “Award”), the then, notwithstanding that such transfer would constitute an unpermitted Transfer under this Agreement, that Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will shall have the option right to purchase from his or her former spouse the Membership Interest, or portion thereof, that was so transferred, and such former spouse shall sell the Membership Interest proposed or portion thereof to be transferred that Member at the price and on the terms provided determined in conformity with Section 8.10 of this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able Member has failed to consummate the purchase and who is not an Affiliate of the selling Member. For 30 within 180 days after the Notice is given, the Company will have the right to purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of: (a) the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.8. If the Company does not exercise the right to purchase all date of the Membership InterestAward (the “Expiration Date”), then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights shall have the option to purchase all from the former spouse the Membership Interest or portion thereof pursuant to Section 8.9(a) and at a price determined in conformity with Section 8.10, provided that the Option Period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the Membership InterestAward, and continue for 180 days thereafter. For purposes of this Section and for purposes of this entire Agreement, the offering Member may, within 90 days from term “Option Period” shall mean the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that period during which an option to purchase a Member’s Membership Interest to the offeror named in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will can be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledexercised.
Appears in 1 contract
Samples: Operating Agreement (MacKenzie Realty Capital, Inc.)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal Withdrawal to the Manager all other Members at least 180 calendar days before the effective date of withdrawal. Withdrawal will shall not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will shall divest the Member’s 's entire Membership Interest before the effective date of withdrawal in accordance with the transfer restrictions and subject to the provisions of this Article VIIIoption rights set forth below.
8.2. Except as expressly provided in this Agreement, a Member will shall not Transfer any part of the Member’s 's Membership Interest in the Company, whether now owned or later hereafter acquired, unless: unless (a1) the other Members unanimously approve the transferee’s 's admission to the Company as a Member on that Transfer; upon such Transfer and (b2) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s 's Membership Interest in the Company unless the such Encumbrance has been approved in writing by all the Manager. Approval may be granted or withheld in the Manager’s sole discretionother Members. Any Transfer or Encumbrance of a Membership Interest without that such approval will shall be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s 's spouse, and the Member’s 's issue, ; provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the such Membership Interest. A Transfer transfer of a Member’s 's entire beneficial interest in the trust, such trust or failure to retain the such Voting Interest, will Interest shall be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer On the happening of any or all of the following events (Triggering Events) with respect to a Member’s , the Company and the other Members shall have the option to purchase all or any portion of the Membership Interest in the Company under a Bona Fide Offer of such Member (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred Selling Member) at the price and on the terms provided in Section 8.7 of this Agreement:
(a) the death or incapacity of a Member;
(b) the bankruptcy of a Member;
(c) the winding up and dissolution of a corporate Member, or merger or other corporate reorganization of a corporate Member as a result of which the corporate Member does not survive as an entity;
(d) the withdrawal of a Member; or
(e) except for the events stated in Section 8.4, the occurrence of any other event that is, or that would cause, a Transfer in contravention of this Agreement. Each Member agrees to promptly give Notice of a Triggering Event to all other Members.
8.4. Notwithstanding any other provisions of this Agreement:
(a) If, in connection with the divorce or dissolution of the marriage of a Member, any court issues a decree or order that transfers, confirms, or awards a Membership Interest, or any portion thereof, to that Member's spouse (an Award), then, notwithstanding that such transfer would constitute an unpermitted Transfer under this Agreement, that Member shall have the right to purchase from his or her former spouse the Membership Interest, or portion thereof, that was so transferred, and such former spouse shall sell the Membership Interest or portion thereof to that Member at the price set forth in Section 8.7 of this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able Member has failed to consummate the purchase and who is not an Affiliate of the selling Member. For 30 within 180 days after the Notice is givenAward (the Expiration Date), the Company will and the other Members shall have the option to purchase from the former spouse the Membership Interest or portion thereof pursuant to Section 8.5 of this Agreement; provided that the option period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the Award.
(b) If, by reason of the death of a spouse of a Member, any portion of a Membership Interest is transferred to a Transferee other than (1) that Member or (2) a trust created for the benefit of that Member (or for the benefit of that Member and any combination between or among the Member and the Member's issue) in which the Member is the sole Trustee and the Member, as Trustee or individually possesses all of the Voting Interest included in that Membership Interest, then the Member shall have the right to purchase the Membership Interest offeredor portion thereof from the estate or other successor of his or her deceased spouse or Transferee of such deceased spouse, on and the terms stated in estate, successor, or Transferee shall sell the Notice, for the lesser of: (a) Membership Interest or portion thereof at the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.88.7 of this Agreement. If the Company does not exercise Member has failed to consummate the right to purchase all within 180 days after the date of death (the Membership InterestExpiration Date), then, with respect to the portion of the Membership Interest that the Company does not elect to purchase, that right will be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expires. Each of the other Members will have the right to purchase, on the same terms, a part of the interest of the offering Member in the proportion that the Member’s Percentage Interest bears to the total Percentage Interests of all of the Members who choose to participate in the purchase; provided, however, that the Company and the participating Members may not, in the aggregate, purchase less than the entire interest to be sold by the offering Member. If the Company and the other Members do not exercise their rights shall have the option to purchase all from the estate or other successor of the deceased spouse the Membership InterestInterest or portion thereof pursuant to Section 8.5 of this Agreement; provided that the option period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the death.
8.5. On the receipt of Notice by the other Members as contemplated by Section 8.1, and on receipt of actual notice of any Triggering Event (the date of such receipt is hereinafter referred to as the "Option Date"), the offering Member mayManager(s) shall promptly give notice of the occurrence of such a Triggering Event to each member, within 90 and the Company shall have the option, for a period ending 30 calendar days from following the date determination of the Notice is given purchase price as provided in Section 8.7, to purchase the Membership Interest in the Company to which the option relates, at the price and on the terms provided in Section 8.7, and the other Members, pro rata in accordance with their prior Membership Interests in the Company, shall then have the option, for a period of 30 days thereafter, to purchase the Membership Interest in the Company not purchased by the Company, on the same terms and conditions stated as apply to the Company. If all other Members do not elect to purchase the entire remaining Membership Interest in the NoticeCompany, sell or exchange that then the Members electing to purchase shall have the right, pro rata in accordance with their prior Membership Interest in the Company, to purchase the additional Membership Interest in the Company available for purchase. The transferee of the Membership Interest in the Company that is not purchased shall hold such Membership Interest in the Company subject to all of the provisions of this Agreement.
8.6. No Member shall participate in any Vote or decision in any matter pertaining to the offeror named disposition of that Member's Membership Interest in the NoticeCompany under this Agreement.
8.7. Unless The purchase price of the requirements Membership Interest that is the subject of Section 8.2 are met, an option under this Agreement shall be the offeror Fair Market Value of such Membership Interest as determined under this Section 8.3 will become 8.7. Each of the selling and purchasing parties shall use his, her, or its best efforts to mutually agree on the Fair Market Value. If the parties are unable to so agree within 30 days of the date on which the option is first exercisable (the Option Date), the selling party shall appoint, within 40 days of the Option Date, one appraiser, and the purchasing party shall appoint within 40 days of the Option Date, one appraiser. The two appraisers shall within a period of five additional days, agree on and appoint an additional appraiser. The three appraisers shall, within 60 days after the appointment of the third appraiser, determine the Fair Market Value of the Membership Interest in writing and submit their report to all the parties. The Fair Market Value shall be determined by disregarding the appraiser's valuation that diverges the greatest from each of the other two appraisers' valuations, and the arithmetic mean of the remaining two appraisers' valuations shall be the Fair Market Value. Each purchasing party shall pay for the services of the appraiser selected by it, plus one-half of the fee charged by the third appraiser. The option purchase price as so determined shall be payable in cash.
8.8. Except as expressly permitted under Section 8.2, a prospective transferee (other than an existing Member) of a Membership Interest may be admitted as a Member with respect to such Membership Interest (Substituted Member) only (1) on the unanimous Vote of the other Members in favor of the prospective transferee's admission as a Member, and (2) on such prospective transferee's executing a counterpart of this Agreement as a party hereto. Any prospective transferee of a Membership Interest shall be deemed an Assignee, and, therefore, the owner of only an Economic Interest until such prospective transferee has been admitted as a Substituted Member.
8.9. Any person admitted to the Company as a Substituted Member shall be subject to all provisions of this Agreement.
8.10. The initial sale of Membership Interests in the Company to the initial Members has not been qualified or registered under the securities laws of any state, or registered under the Securities Act of 1933, as amended, in reliance upon exemptions from the registration provisions of those laws. No attempt has been made to qualify the offering and will sale of Membership Interests to Members under the California Corporate Securities Law of 1968, as amended, also in reliance upon an exemption from the requirement that a permit for issuance of securities be entitled procured. Notwithstanding any other provision of this Agreement, Membership Interests may not be Transferred or Encumbered unless registered or qualified under applicable state and federal securities law or unless, in the opinion of legal counsel satisfactory to receive only the share of Profits Company, such qualification or other compensation and the return of Capital Contribution registration is not required. The Member who desires to which the assigning Member would have been entitledtransfer a Membership Interest shall be responsible for all legal fees incurred in connection with said opinion.
Appears in 1 contract
Samples: Operating Agreement (Melt Inc)
Transfers of Membership Interests. 8.1. A Member may withdraw from the Company at any time by giving Notice of withdrawal to the Manager at least 180 calendar days before the effective date of withdrawal. Withdrawal will not release a Member from any obligations and liabilities under this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing Member will divest the Member’s entire Membership Interest before the effective date of withdrawal in accordance with and subject to the provisions of this Article VIII.
8.2. 8.1 Except as expressly provided in this Agreement, a Member will shall not Transfer any part of the Member’s Membership Interest in the Company, whether now owned or later hereafter acquired, unless: unless (a1) the other Members unanimously Member(s) owning at last two-thirds of the Percentage Interests (excluding the Percentage Interest allocable to the withdrawing Members) approve the transferee’s admission to the Company as a Member on that Transfer; upon such Transfer and (b2) the Membership Interest to be Transferredtransferred, when added to the total of all other Membership Interests Transferred transferred in the preceding 12 months, will not cause the termination of the Company under the Code. No Member may Encumber or permit or suffer any Encumbrance of all or any part of the Member’s Membership Interest in the Company unless the such Encumbrance has been approved in writing by one hundred percent (100%) of the Manager. Approval may be granted or withheld in the Manager’s sole discretionCo-Managers. Any Transfer or Encumbrance of a Membership Interest without that such approval will shall be void. Notwithstanding any other provision of this Agreement to the contrary, a Member who is a natural person may Transfer transfer all or any portion of his or her Membership Interest to any revocable trust created for the benefit of the Member, or any combination between or among the Member, the Member’s spouse, spouse and the Member’s issue, ; provided that the Member retains a beneficial interest in the trust and all of the Voting Interest included in the such Membership Interest. A Transfer transfer of a Member’s entire beneficial interest in the trust, such trust or failure to retain the such Voting Interest, will Interest shall be deemed a Transfer of a Membership Interest.
8.3. If a Member wishes to Transfer 8.2 On the happening of any or all of the following events (“Triggering Events”) with respect to a Member’s , the Company and the other Members, if any, shall have the option to purchase all or any portion of the Membership Interest in the Company under a Bona Fide Offer of such Member (as defined below), the Member will give Notice to the Manager at least 30 days in advance of the proposed sale or Transfer, indicating the terms of the Bona Fide Offer and the identity of the offeror. The Company and the other Members will have the option to purchase the Membership Interest proposed to be transferred Selling Member) at the price and on the terms provided in Section 8.7 of this Agreement:
(a) the death or incapacity of a Member;
(b) the bankruptcy of a Member; or
(c) except for the events stated in Section 8.3, the occurrence of any other event that is, or that would cause, a Transfer in contravention of this Agreement. Each Member agrees to give prompt Notice of a Triggering Event to all other Members.
8.3 Notwithstanding any other provisions of this Agreement:
(i) If, in connection with the divorce or dissolution of the marriage of a Member, any court issues a decree or order that transfers, confirms or awards a Membership Interest, or any portion thereof, to that Member’s spouse (an Award), then, notwithstanding that such transfer would constitute an unpermitted Transfer under this Agreement, that Member shall have the right to purchase from his or her former spouse the Membership Interest, or portion thereof, that was so transferred, and such former spouse shall sell the Membership Interest or portion thereof to that Member at the price set forth in Section 8.7 of this Agreement. If the price for the Membership Interest is other than cash, the fair value in dollars of the price will be as established in good faith by the Company. For purposes of this Agreement, “Bona Fide Offer” means an offer in writing setting forth all relevant terms and conditions of purchase from an offeror who is ready, willing, and able Member has failed to consummate the purchase and who is not an Affiliate of the selling Member. For 30 within 90 days after the Notice is givenAward (the Expiration Date), the Company will shall have the option to purchase from the former spouse the Membership Interest or portion thereof pursuant to Section 8.5 of this Agreement; provided that the option period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the Award.
(ii) If, by reason of the death of a spouse of a Member, any portion of a Membership Interest is transferred to a Transferee other than (1) that Member or (2) a trust created for the benefit of that Member (or for the benefit of that Member and any combination between or among the Member and the Member’s issue) in which the Member is the sole Trustee and the Member, as Trustee or individually, possesses all of the Voting Interest included in that Membership Interest, then the Member shall have the right to purchase the Membership Interest offeredor portion thereof from the estate or other successor of his or her deceased spouse or Transferee of such deceased spouse, on and the terms stated in estate, successor, or Transferee shall sell the Notice, for the lesser of: (a) Membership Interest or portion thereof at the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the case may be); and (b) the price determined under the appraisal procedures set forth in Section 8.88.7 of this Agreement. If the Member has failed to consummate the purchase within 90 days after the date of death (the Expiration Date), the Company does not exercise shall have the right option to purchase from the estate or other successor of the deceased spouse the Membership Interest or portion thereof pursuant to Section 8.5 of this Agreement; provided that the option period shall commence on the later of (1) the day following the Expiration Date, or (2) the date of actual notice of the death.
8.4 On the receipt of Notice by the other Members as contemplated by Section 8.1, and on receipt of actual notice of any Triggering Event (the date of such receipt is hereinafter referred to as the “Option Date”), the remaining Co-Managers shall promptly give notice of the occurrence of such a Triggering Event to each Co-Manager, and the Company shall have the option, for a period ending 30 calendar days following the determination of the purchase price as provided in Section 8.6, to purchase the Membership Interest in the Company to which the option relates, at the price and on the terms provided in Section 8.6. The transferee of the Membership Interest in the Company that is not purchased shall hold such Membership Interest in the Company subject to all of the Membership Interest, then, with respect provisions of this Agreement.
8.5 No Member shall participate in any Vote or decision in any matter pertaining to the portion disposition of that Member’s Membership Interest in the Company under this Agreement.
8.6 The purchase price of the Membership Interest that is the Company does not elect to purchase, that right will subject of an option under this Agreement shall be given to the other Members for an additional 30-day period, beginning on the day that the Company’s right to purchase expiresFair Market Value of such Membership Interest as determined under this Section 8.6. Each of the other Members will have the right selling and purchasing parties shall use his, her, or its best efforts to purchase, mutually agree on the same termsFair Market Value. If the parties are unable to so agree within 30 days of the date on which the option is first exercisable (the Option Date), the selling party shall appoint, within 40 days of the Option Date, one appraiser, and the purchasing party shall appoint within 40 days of the Option Date, one appraiser. The two appraisers shall within a period of five additional business days, agree on and appoint an additional appraiser. The three appraisers shall, within 60 days after the appointment of the third appraiser, determine the Fair Market Value of the Membership Interest in writing and submit their report to all the parties. The Fair Market Value shall be determined by disregarding the appraiser’s valuation that diverges the greatest from each of the other two appraisers’ valuations, and the arithmetic mean of the remaining two appraisers’ valuations shall be the Fair Market Value. Each purchasing party shall pay for the services of the appraiser selected by it, plus one-half of the fee charged by the third appraiser. The option purchase price as so determined shall be payable in cash.
8.7 Except as expressly permitted under Section 8.1, a part prospective transferee (other than an existing Member) of a Membership Interest may be admitted as a Member with respect to such Membership Interest (Substituted Member) only (1) on the unanimous Vote of the interest (remaining) Co-Managers in favor of the offering prospective transferee’s admission as a Member, and (2) on such prospective transferee’s executing a counterpart of this Agreement as a party hereto. Any prospective transferee of a Membership Interest shall be deemed an Assignee, and, therefore, the owner of only an Economic Interest until such prospective transferee has been admitted as a Substituted Member.
8.8 Any person admitted to the Company as a Substituted Member shall be subject to all provisions of this Agreement.
8.9 The original issuance of Membership Interests in the proportion that the Member’s Percentage Interest bears Company to the total Percentage original Members has not been qualified or registered under the Securities Act of 1933, as amended, in reliance upon exemptions from the registration provisions of those laws. No attempt has been made to qualify the offering and issuance of Membership Interests to Members under the California Corporate Securities Law of all 1968, as amended, also in reliance upon an exemption from the requirement that a permit for issuance of the Members who choose to participate in the purchase; providedsecurities be procured. Notwithstanding any other provision of this Agreement, however, that the Company Membership Interests may not be Transferred or Encumbered unless registered or qualified under applicable state and the participating Members may notfederal securities law or unless, in the aggregateopinion of legal counsel satisfactory to the Company, purchase less than the entire interest such qualification or registration is not required. The Member who desires to be sold by the offering Member. If the Company and the other Members do not exercise their rights to purchase all of the Membership Interest, the offering Member may, within 90 days from the date the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that transfer a Membership Interest to the offeror named shall be responsible for all legal fees incurred in the Notice. Unless the requirements of Section 8.2 are met, the offeror under this Section 8.3 will become an Assignee, and will be entitled to receive only the share of Profits or other compensation and the return of Capital Contribution to which the assigning Member would have been entitledconnection with said opinion.
Appears in 1 contract
