Common use of Elective Exchanges Clause in Contracts

Elective Exchanges. (i) Each Class A Unitholder shall be entitled, at any time and from time to time, upon the terms and subject to the conditions hereof, to surrender Combined Units (with the Class A Common Units surrendered to the Company, and the corresponding Noneconomic Stock surrendered to the Public Offering Entity) in exchange for the delivery by the Company to the exchanging Class A Unitholder of, at the option of the Public Offering Entity (as determined solely by a majority of its directors who are disinterested), (A) a number of shares of Class A Common Stock that is equal to the product of the number of Combined Units surrendered multiplied by the Exchange Rate (a “Share Settlement”), which such shares of Class A Common Stock may be contributed by the Public Offering Entity to the Company in exchange for Class A Common Units, or (B) an amount of cash equal to the Fair Market Value of such shares net of any underwriters’ discounts, commissions and brokers’ fees that would be payable in connection with the registration and sale of such shares in a registered offering, as reasonably determined by the Board (a “Cash Settlement,” and any such exchange of Combined Units for Class A Common Stock or cash, an “Exchange”); provided that any such Exchange is for a minimum of the lower of (i) 5,000 Combined Units, (ii) such other number of Combined Units as may be determined by the Board with respect to any particular Exchange, and (iii) all of the Combined Units held by such Class A Unitholder. Unless otherwise required by applicable law, except in the case of a Cash Settlement that is not funded, directly or indirectly, by the Public Offering Entity, the parties hereto acknowledge and agree that any Exchange shall be treated as a direct exchange of the Combined Units between the Public Offering Entity and the Class A Unitholder participating in the Exchange for U.S. federal and applicable state and local income tax purposes. (ii) A Class A Unitholder shall exercise its right to Exchange Combined Units as set forth in Section 9.9(a)(i) by delivering to (I) the Public Offering Entity, (A) a written election of exchange in respect of the Combined Units to be Exchanged (an “Exchange Notice”), duly executed by such Class A Unitholder, with a contemporaneous copy delivered to the Company, in each case during normal business hours at the principal executive offices of the Public Offering Entity, (B) any certificate(s) representing the Noneconomic Stock included in such Combined Units, and (C) if the Public Offering Entity requires the delivery of the certification contemplated by Section 9.12(b), such certification, or written notice from such Class A Unitholder that it is unable to provide such certification, and (II) the Company, the Class A Common Units included in such Combined Units (including, in each case, any certificates representing the underlying Class A Common Units and any stock certificates representing the underlying shares of Noneconomic Stock in each case issued to such Class A Unitholder according to the books and records of the Company and the Public Offering Entity, respectively); provided, that if any such certificate has been lost, then the exchanging Class A Unitholder may deliver, in lieu of such certificate, an affidavit of lost certificate. Upon a Class A Unitholder exercising its right to Exchange, the Company and the Public Offering Entity shall take such actions as may be required to ensure that such Class A Unitholder receives the shares of Class A Common Stock or cash that such exchanging Class A Unitholder is entitled to receive in connection with such Exchange pursuant to this Section 9.9(a). If an exchanging Class A Unitholder receives the shares of Class A Common Stock or cash that it is entitled to receive in connection with an Exchange pursuant to this Section 9.9(a) from the Company pursuant to this Section 9.9(a)(ii), then the Class A Unitholder shall have no further right to receive shares of Class A Common Stock or cash in connection with that Exchange, and the Company shall be deemed to have satisfied its obligations under the second sentence of this Section 9.9(a)(ii). An Exchange pursuant to this Section 9.9(a) shall be deemed to have been effected on the Business Day immediately following the earliest Business Day as of which the Public Offering Entity and the Company have received the items specified in clauses (I) through (II) of the first sentence of this Section 9.9(a)(ii) (such Business Day, the “Exchange Date”). Subject to the rights of Class A Unitholders to revoke an Exchange Notice in accordance with Section 9.9(a)(iii), on the Exchange Date, all rights of the exchanging Class A Unitholder as a holder of the Combined Units that are subject to the Exchange shall cease, and, in the case of a Share Settlement, such Class A Unitholder shall be treated for all purposes as having become the record holder of the shares of Class A Common Stock to be received by the exchanging Class A Unitholder in respect of such Exchange. (iii) If, following its receipt of an Exchange Notice, the Public Offering Entity is unable to deliver to the Class A Unitholder requesting such Exchange shares of Class A Common Stock that are covered under an effective registration statement under the Securities Act or that are otherwise freely tradeable or sellable by such Class A Unitholder, then the Public Offering Entity shall notify the requesting Class A Unitholder in writing of that fact, and such Class A Unitholder may, by written notice to the Company and the Public Offering Entity, revoke its Exchange Notice requesting such Exchange, whereupon the Exchange shall be terminated, the Combined Units so requested to be included in such Exchange shall be reinstated in the name of such holder, and any shares of Class A Common Stock issued to such holder as a result of such Exchange shall be cancelled. (iv) Notwithstanding anything to the contrary in this Section 9.9, the Public Offering Entity (as determined solely by a majority of its directors who are disinterested) may, in its sole and absolute discretion, elect to effect on the Exchange Date the exchange of Combined Units for the Share Settlement or the Cash Settlement, as the case may be, through a direct exchange of such Combined Units and the Share Settlement or the Cash Settlement, as applicable, between the applicable Class A Unitholder and the Public Offering Entity (a “Direct Exchange”). Upon such Direct Exchange pursuant to this Section 9.9(a)(iv), the Public Offering Entity shall acquire the Combined Units and shall be treated for all purposes of this Agreement as the owner of such Combined Units.

Elective Exchanges. (i) Each Class A Unitholder shall be entitled, at any time and from time to time, upon the terms and subject to the conditions hereof, to surrender Combined Units (with the Class A Common Units surrendered to the Company, and the corresponding Noneconomic Stock surrendered to the Public Offering Entity) in exchange for the delivery by the Company to the exchanging Class A Unitholder of, at the option of the Public Offering Entity (as determined solely by a majority of its directors who are disinterested), (A) a number of shares of Class A Common Stock (or Class D Common Stock, for Class A Unitholders for which the Noneconomic Stock comprising a portion of the Combined Units is Class C Common Stock and that are eligible to own Class C Common Stock pursuant to the certificate of incorporation (as then in effect) of the Public Offering Entity) that is equal to the product of the number of Combined Units surrendered multiplied by the Exchange Rate (a “Share Settlement”), which such shares of Class A Common Stock or Class D Common Stock, as applicable, may be contributed by the Public Offering Entity to the Company in exchange for Class A Common Units, or (B) an amount of cash equal to the Fair Market Value Cash Redemption Price of such shares net of any underwriters’ discounts, commissions and brokers’ fees that would be payable in connection with the registration and sale of such shares in a registered offering, as reasonably determined by the Board Manager (a “Cash Settlement,” and any such exchange of Combined Units for Class A Common Stock or Class D Common Stock, as applicable, or cash, an “Exchange”); provided provided, for the avoidance of doubt, that any the Public Offering Entity may make a Cash Settlement only to the extent that the Public Offering Entity has cash available in an amount equal to at least the Cash Redemption Price which was received pursuant to a contemporaneous public offering or private sale. Any such Exchange is shall be for a minimum of the lower lowest of (i) 5,000 Combined Units, (ii) such other number of Combined Units as may be determined by the Board Manager with respect to any particular Exchange, and (iii) all of the Combined Units held by such Class A Unitholder. Unless otherwise required by applicable law, except in the case of a Cash Settlement that is not funded, directly or indirectly, by the Public Offering Entity, the parties hereto acknowledge and agree that any Exchange shall be treated as a direct exchange of the Combined Units between the Public Offering Entity and the Class A Unitholder participating in the Exchange for U.S. federal and applicable state and local income tax purposes. (ii) A Class A Unitholder shall exercise its right to Exchange Combined Units as set forth in Section 9.9(a)(i) by delivering to (I) the Public Offering Entity, (A) a written election of exchange in respect of the Combined Units to be Exchanged (an “Exchange Notice”), duly executed by such Class A Unitholder, with a contemporaneous copy delivered to the Company, in each case during normal business hours at the principal executive offices of the Public Offering Entity or such address as designated by the Public Offering Entity, (B) any certificate(s) representing the Noneconomic Stock included in such Combined Units, and (C) if the Public Offering Entity requires the delivery of the certification contemplated by Section 9.12(b), such certification, or written notice from such Class A Unitholder that it is unable to provide such certification, and (D) in the case of an exchange of Class C Common Stock, a designation of whether the holder elects to receive shares of Class A Common Stock or Class D Common Stock and (II) the Company, the Class A Common Units included in such Combined Units (including, in each case, any certificates representing the underlying Class A Common Units and any stock certificates representing the underlying shares of Noneconomic Stock in each case issued to such Class A Unitholder according to the books and records of the Company and the Public Offering Entity, respectively); provided, that if any such certificate has been lost, then the exchanging Class A Unitholder may deliver, in lieu of such certificate, an affidavit of lost certificate. Upon a Class A Unitholder exercising its right to Exchange, the Company and the Public Offering Entity shall take such actions as may be required to ensure that such Class A Unitholder receives the shares of Class A Common Stock or Class D Common Stock, as applicable, or cash that such exchanging Class A Unitholder is entitled to receive in connection with such Exchange pursuant to this Section 9.9(a). Each Class A Unitholder may exercise its right to Exchange Combined Units only one time per calendar quarter. If an exchanging Class A Unitholder receives the shares of Class A Common Stock or Class D Common Stock, as applicable, or cash that it is entitled to receive in connection with an Exchange pursuant to this Section 9.9(a) from the Company pursuant to this Section 9.9(a)(ii), then the Class A Unitholder shall have no further right to receive shares of Class A Common Stock or Class D Common Stock, as applicable, or cash in connection with that Exchange, and the Company shall be deemed to have satisfied its obligations under the second sentence of this Section 9.9(a)(ii). An Exchange pursuant to this Section 9.9(a) shall be deemed to have been effected on the Business Day immediately following the earliest Business Day as of which the Public Offering Entity and the Company have received the items specified in clauses (I) through (II) of the first sentence of this Section 9.9(a)(ii); provided that no Exchange shall be effected prior to the end of a month (or if such day is not a Business Day, the Business Day immediately prior to the end of a month) (such Business Day, the “Exchange Date”). Subject to the rights of Class A Unitholders to revoke an Exchange Notice in accordance with Section 9.9(a)(iii), on the Exchange Date, all rights of the exchanging Class A Unitholder as a holder of the Combined Units that are subject to the Exchange shall cease, and, in the case of a Share Settlement, such Class A Unitholder shall be treated for all purposes as having become the record holder of the shares of Class A Common Stock or Class D Common Stock, as applicable, to be received by the exchanging Class A Unitholder in respect of such Exchange. (iii) If, following its receipt of an Exchange Notice, the Public Offering Entity is unable to deliver to the Class A Unitholder requesting such Exchange shares of Class A Common Stock that are covered under an effective registration statement under the Securities Act or that are otherwise freely tradeable or sellable by such Class A Unitholder, then the Public Offering Entity shall notify the requesting Class A Unitholder in writing of that fact, and such Class A Unitholder may, by written notice to the Company and the Public Offering Entity, revoke its Exchange Notice requesting such Exchange, whereupon the Exchange shall be terminated, the Combined Units so requested to be included in such Exchange shall be reinstated in the name of such holder, and any shares of Class A Common Stock or Class D Common Stock, as applicable, issued to such holder as a result of such Exchange shall be cancelled. (iv) Notwithstanding anything to the contrary in this Section 9.9, the Public Offering Entity (as determined solely by a majority of its directors who are disinterested) may, in its sole and absolute discretion, elect to effect on the Exchange Date the exchange of Combined Units for the Share Settlement or the Cash Settlement, as the case may be, through a direct exchange of such Combined Units and the Share Settlement or the Cash Settlement, as applicable, between the applicable Class A Unitholder and the Public Offering Entity (a “Direct Exchange”). Upon such Direct Exchange pursuant to this Section 9.9(a)(iv), the Public Offering Entity shall acquire the Combined Units and shall be treated for all purposes of this Agreement as the owner of such Combined Units.

Elective Exchanges. (i) Each Class A Unitholder shall be entitled, entitled at any time and from time to time, upon the terms and subject to the conditions hereof, to surrender Combined Units (with the Class A Common Units surrendered to the Company, and the corresponding Noneconomic Stock surrendered to the Public Offering Entity) Corporation in exchange for the delivery by the Company to the exchanging Class A Unitholder of, at the option of the Public Offering Entity (as determined solely by a majority of its directors who are disinterested), (A) a number of shares of Class A Common Stock that is equal to the product of the number of Combined Units surrendered multiplied by the Exchange Rate (a “Share Settlement”), which such shares of Class A Common Stock may be contributed by the Public Offering Entity to the Company in exchange for Class A Common Units, or (B) an amount of cash equal to the Fair Market Value of such shares net of any underwriters’ discounts, commissions and brokers’ fees that would be payable in connection with the registration and sale of such shares in a registered offering, as reasonably determined by the Board (a “Cash Settlement,” and any such exchange of Combined Units for Class A Common Stock or cashStock, an “Exchange”); provided that any such Exchange is for a minimum of the lower least of (i) 5,000 Combined Units, (ii) such other number of Combined Units as may be determined by the Board with respect to any particular Exchange, and (iii) all of the Combined Units held by such Class A Unitholder. Unless otherwise required by applicable law, except in the case of a Cash Settlement that is not funded, directly or indirectly, by the Public Offering Entity, the parties hereto acknowledge and agree that any Exchange shall be treated as a direct exchange of the Combined Units between the Public Offering Entity and the Class A Unitholder participating in the Exchange for U.S. federal and applicable state and local income tax purposes. (ii) A Class A Unitholder shall exercise its right to Exchange Combined Units as set forth in Section 9.9(a)(i) by delivering to (I) the Public Offering EntityCorporation, with a contemporaneous copy delivered to the Company, in each case during normal business hours at the principal executive offices of the Corporation (A) a written election of exchange in respect of the Combined Units to be Exchanged (an “Exchange Notice”), duly executed by such Class A Unitholder, with a contemporaneous copy delivered to the Company, in each case during normal business hours at the principal executive offices of the Public Offering Entity, (B) any certificate(s) certificates representing the Noneconomic Stock included in such Combined Units, and (C) if the Public Offering Entity requires the delivery of the certification contemplated by Section 9.12(b), such certification, or written notice from such Class A Unitholder that it is unable to provide such certification, and (II) the Company, the Class A Common Units included in such Combined Units (including, in each case, including any certificates representing the underlying Class A Common Units Units, and any stock certificates representing the underlying shares of Noneconomic Stock Class B Common Stock, in each case issued to such Class A Unitholder according to the books and records of the Company and the Public Offering EntityCorporation as applicable), respectively); provided, provided that if any such certificate has been lost, then the exchanging Class A Unitholder may deliver, in lieu of such certificate, an affidavit of lost certificate, and (C) if the Corporation requires the delivery of the certification contemplated by Section 9.9(b), such certification or written notice from such Class A Unitholder that it is unable to provide such certification. Upon a Class A Unitholder exercising its right to Exchange, the Company and the Public Offering Entity Corporation shall take such actions as may be required to ensure that such Class A Unitholder receives the shares of Class A Common Stock or cash that such exchanging Class A Unitholder is entitled to receive in connection with such Exchange pursuant to this Section 9.9(a). If an exchanging Class A Unitholder receives the shares of Class A Common Stock or cash that it is entitled to receive in connection with an Exchange pursuant to this Section 9.9(a) from the Company Corporation pursuant to this Section 9.9(a)(ii), then the Class A Unitholder shall have no further right to receive shares of Class A Common Stock or cash from the Corporation in connection with that Exchange, and the Company Corporation shall be deemed to have satisfied its obligations under the second sentence of this Section 9.9(a)(ii). An Exchange pursuant to this Section 9.9(a) shall be deemed to have been effected on the Business Day (such Business Day, the “Exchange Date”) immediately following the earliest Business Day as of which the Public Offering Entity and the Company have Corporation has received the items specified in clauses (I) through (IIA)-(D) of the first sentence of this Section 9.9(a)(ii) (such Business Day, the “Exchange Date”). Subject to the rights of Class A Unitholders to revoke an Exchange Notice in accordance with Section 9.9(a)(iii), on On the Exchange Date, all rights of the exchanging Class A Unitholder as a holder of the Combined Units that are subject to the Exchange shall cease, and, in the case of a Share Settlement, and such Class A Unitholder shall be treated for all purposes as having become the record holder of the shares of Class A Common Stock to be received by the exchanging Class A Unitholder in respect of such Exchange. (iii) If, following its receipt of an Exchange Notice, the Public Offering Entity is unable to deliver to the Class A Unitholder requesting such Exchange shares of Class A Common Stock that are covered under an effective registration statement under the Securities Act or that are otherwise freely tradeable or sellable by such Class A Unitholder, then the Public Offering Entity shall notify the requesting Class A Unitholder in writing of that fact, and such Class A Unitholder may, by written notice to the Company and the Public Offering Entity, revoke its Exchange Notice requesting such Exchange, whereupon the Exchange shall be terminated, the Combined Units so requested to be included in such Exchange shall be reinstated in the name of such holder, and any shares of Class A Common Stock issued to such holder as a result of such Exchange shall be cancelled. (iv) Notwithstanding anything to the contrary in this Section 9.9, the Public Offering Entity (as determined solely by a majority of its directors who are disinterested) may, in its sole and absolute discretion, elect to effect on the Exchange Date the exchange of Combined Units for the Share Settlement or the Cash Settlement, as the case may be, through a direct exchange of such Combined Units and the Share Settlement or the Cash Settlement, as applicable, between the applicable Class A Unitholder and the Public Offering Entity (a “Direct Exchange”). Upon such Direct Exchange pursuant to this Section 9.9(a)(iv), the Public Offering Entity shall acquire the Combined Units and shall be treated for all purposes of this Agreement as the owner of such Combined Units.