Common use of Share Election Clause in Contracts

Share Election. (a) Each Person (as defined in Section 1.6 hereof) who, on or prior to the Election Date referred to in subsection (c) below, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, shall have the right to submit a Form of Election (as defined in Section 1.3(c) hereof) specifying the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person desires to be converted into Buying Entities' Common Stock pursuant to the Common Stock Election or a Company OP Election. (b) Prior to the mailing of the Proxy Statement (as defined in Section 5.2(b) hereof), Buyer shall designate the Company's registrar or transfer agent, or such other bank, trust company, Person or Persons as shall be acceptable to the Company to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company (the "Form of Election") with the Proxy Statement to the record holders of shares of Company Common Stock and the record holders of Company OP Units as of the record date for the Company Special Meeting, which Form of Election shall be used by each record holder of shares of Company Common Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, held, subject to the provisions of Section 1.4 hereof, by such holder. The Company shall use its reasonable best efforts to make the Form of Election and the Proxy Statement available to all Persons who become holders of shares of Company Common Stock during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Stock shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day (the "Election Date") next preceding the date of the Company Special Meeting, a Form of Election properly completed and signed and accompanied by certificates for the shares of Company Common Stock or Company OP Units to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE or a commercial bank or trust company having an office or correspondent in the United States, provided such certificates are in fact delivered to the Exchange Agent within five NYSE trading days after the date of execution of such guarantee of delivery). (d) Any Form of Election may be revoked by the stockholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer and the Company that the Merger has been abandoned. If a Form of Election is revoked, the certificate or certificates (or guarantees of delivery, as appropriate) for the share of Company Common Stock or Company OP Unit, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (e) The determination of the Exchange Agent shall be binding as to whether or not elections have been properly made or revoked pursuant to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines that any Common Stock Election was not properly made with respect to shares of Company Common Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall be exchanged in the Merger for cash pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereof. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, and any such computation shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fully.

Share Election. (a) Each Person (as defined in Section 1.6 hereof) who, on or prior to the Election Date referred to in subsection (c) below, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, Shares shall have the right right, subject to Section 3.1, to submit a Form of Election specifying (as defined in Section 1.3(ci) hereof) specifying the number of shares of Company Common Stock or Company OP Units, as the case may be, Shares that such Person desires to be converted into Buying Entities' Common Stock the Cash Consideration pursuant to the Common Cash Election, or (ii) the number of Company Shares that such Person desires to be converted into the Stock Election or a Company OP Consideration pursuant to the Stock Election. . (b) Prior to the mailing of the Proxy Statement (Statement/Prospectus to the record holders of Company Shares, Wells Fargo Shareholder Services, St. Paul, Minnesota, which currently ▇▇▇▇ as defined in Section 5.2(b) hereof), Buyer shall designate the Company's registrar or transfer agentagent with respect t▇ ▇▇rent Shares, or such other bank, trust company, Person or Persons as shall be reasonably acceptable to the Company Company, shall be designated by Parent to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer Parent, or its authorized agent or representative, shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company election (the "Form of Election") ), which Form of Election shall contain the Letter of Transmittal, for mailing with the Proxy Statement Statement/Prospectus. The Form of Election shall be (i) mailed to the record holders of shares of Company Common Stock and the record holders of Company OP Units Shares as of the record date for the Company Special Stockholder Meeting, which Form of Election shall be and (ii) used by each record holder of shares of Company Common Shares to make either the Cash Election or the Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, heldElection, subject to the provisions of Section 1.4 hereof, by such holder3.1. The Company shall also use its reasonable best efforts to make the Form of Election and the Proxy Statement Statement/Prospectus available to all Persons who become holders of shares of Company Common Stock Shares during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Stock shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time time, on the business day date of the Company Stockholder Meeting (the "Election Date") next preceding the date of the Company Special Meeting, a Form of Election properly completed and signed and accompanied by certificates (i) Company Certificates for the shares of Company Common Stock or Company OP Units Shares to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates Company Certificates as set forth in on such Form of Election from a firm which is a member of a registered national securities exchange or of an "eligible guarantor institution" (as defined in Rule 17Ad-15 under the NYSE or a commercial bank or trust company having an office or correspondent in the United StatesExchange Act), provided that such certificates Company Certificates are in fact delivered to the Exchange Agent within five NYSE trading days after by the date of execution of time set forth in such guarantee of delivery). (d) Any Form of Election may be revoked by the stockholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer and the Company that the Merger has been abandoned. If a Form of Election is revoked, the certificate or certificates (or guarantees of delivery, as appropriate) for the share of Company Common Stock or Company OP Unit, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (e) The determination of the Exchange Agent shall be binding as to whether or not elections have been properly made or revoked pursuant to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines that any Common Stock Election was not properly made with respect to shares of Company Common Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall be exchanged in the Merger for cash pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereof. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, and any such computation shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fully.or

Share Election. (a) Each Person (as defined in Section 1.6 hereof) who, on or prior to the Election Date referred to (as defined in subsection (cSection 2.3(c)) below, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, shall have the right right, subject to Section 2.4, to submit a Form of Election (as defined in Section 1.3(c) hereof2.3(c)) specifying (i) the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person desires to be converted into Buying Entities' Common Stock cash pursuant to the Cash Election and/or (ii) the number of shares of Common Stock Election or a Company OP that such Person desires to be converted into Parent Shares pursuant to the Stock Election. . (b) Prior to the mailing of the Proxy Statement Statement/Prospectus (as defined in Section 5.2(b7.2(a)) hereof), Buyer shall designate to the record holders of shares of Common Stock of the Company's registrar or transfer agent, The Bank of New York, or such other bank, trust company, Person or Persons as Persons, shall be acceptable to the Company designated by Parent to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer Parent or its authorized agent or representative shall prepare and mail a form of electionprepare, which form shall be subject to the reasonable approval of the Company Company, a form of election (the "Form of Election") for mailing with the Proxy Statement Statement/Prospectus. The Form of Election shall be (i) mailed to the record holders of shares of Company Common Stock and the record holders of Company OP Units as of the record date for the Company Special MeetingStockholders' Meeting (as defined in Section 7.2(a)), which Form of Election shall be and (ii) used by each record holder of shares of Company Common Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common make either the Cash Election or the Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, heldElection, subject to the provisions of Section 1.4 hereof, by such holder2.4. The Company shall also use its reasonable best efforts to make the Form of Election and the Proxy Statement Statement/Prospectus available to all Persons who become holders of shares of Company Common Stock during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Stock cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day next preceding the Closing Date (the "Election Date") next preceding the date of the Company Special Meeting), a Form of Election properly completed and signed and accompanied by certificates Certificate(s) for the shares share(s) of Company Common Stock or Company OP Units to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates Certificate(s) as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE or a commercial bank or trust company having an office or correspondent in the United States, provided that such certificates Certificate(s) are in fact delivered to the Exchange Agent within five three NYSE trading days after the date of execution of such guarantee of delivery). (d) Any Form of Election may be revoked by the stockholder a holder of Common Stock submitting it such Form of Election to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer Parent and the Company that the Merger has been abandonedabandoned or if the Company's stockholders fail to approve the Merger. If a Form of Election is revoked, the certificate or certificates Certificate(s) (or guarantees guarantee(s) of delivery, as appropriateif applica ble) for the share share(s) of Company Common Stock or Company OP UnitStock, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (e) The determination For purposes of this Agreement, a holder of Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Date shall be deemed to have made a Non-Election. If Parent or the Exchange Agent shall be binding as to whether or not elections have been properly made or revoked pursuant to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines determine that any Common purported Cash Election or Stock Election was not properly made with respect to shares of Company Common made, such purported Cash Election or Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units Election shall be treated by deemed to be of no force and effect and the holder making such purported Cash Election or Stock Election shall for purposes of this Agreement, be deemed to have made a Non-Election. (f) Parent shall have the sole discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immate rial defects in Forms of Election. The decision of Parent (or the Exchange Agent, if applicable) in such matters shall be conclusive and binding. Neither Parent nor the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall will be exchanged under any obligation to notify any Person of any defect in the Merger for cash pursuant a Form of Election submitted to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereofAgent. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, 2.4 and any all such computation computations shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fullyStock.

Share Election. (a) Each Person (as defined in Section 1.6 hereof) who, on or prior to as of the Election Date referred to in subsection (c) below, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, shall have the right to submit a Form of Election (as defined in Section 1.3(c) hereof) specifying the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person desires to be converted into Buying Entities' Common Stock the right to receive $23 in cash pursuant to the Common Stock Cash Election or a Company OP Cash Election. , as applicable. (b) Prior to the mailing of the Joint Proxy Statement (as defined in Section 5.2(b5.3(c) hereof), Buyer shall designate the Company's registrar or transfer agent, or such other bank, trust company, Person or Persons as shall be acceptable to the Company to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer shall prepare and mail a form of electionelection (which shall include a letter of transmittal), which form shall be subject to the reasonable approval of the Company (the "Form of Election") ), with or at substantially the same time as the Joint Proxy Statement to the record holders of shares of Company Common Stock and the record holders of Company OP Units as of the record date for the Company Special Meeting, which Form of Election shall be used by each record holder of shares of Company Common Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common Stock cash for any or all shares of Company Common Stock or Company OP Units, as the case may be, held, subject to the provisions of Section 1.4 hereof, by such holderholder and, in connection with such election, to surrender its certificates representing such Company Common Stock. The Form of Election shall specify that delivery shall be effected, and risk of loss and title to the Certificates (as defined in Section 1.5 hereof) shall pass, only upon proper delivery of the Certificates to the Exchange Agent and which shall be in the form and have such other provisions as Buyer and the Company may reasonably specify and instructions for making a Cash Election and for delivering shares of Company Common Stock in connection with such election. The Form of Election shall contain an undertaking by the holder of Company OP Units executing such Form of Election that such holder agrees not to sell, transfer or dispose of any Company OP Units without first notifying the Exchange Agent that such holder was revoking its election with respect thereto, it being understood that such revocation must comply with subsection (d) below. The Company shall use its reasonable best efforts to make the Form of Election and the Joint Proxy Statement available to all Persons who become holders of shares of Company Common Stock during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Stock cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day (the "Election Date") next preceding the date of the Company Special Meeting, a Form of Election properly completed and signed (and not revoked) and accompanied by certificates for the shares of Company Common Stock or Company OP Units to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE New York Stock Exchange (the "NYSE") or a commercial bank or trust company having an office or correspondent in the United States, provided such certificates are in fact delivered to the Exchange Agent within five NYSE trading days after the date of execution of such guarantee of delivery). (d) Any Form of Election may be revoked by the stockholder or unitholder submitting it to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer and the Company that the Merger has been abandoned. If a Form of Election is revoked, the certificate or certificates (or guarantees of delivery, as appropriate) for the share of Company Common Stock or Company OP UnitStock, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (e) The determination of the Exchange Agent shall be binding as to whether or not elections have been properly made or revoked pursuant to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines that any Common Stock Cash Election was not properly made with respect to shares of Company Common Stock or Company OP UnitsStock, then such shares of Company Common Stock or Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Shares, Shares and such shares shall be exchanged in the Merger for cash shares of Class B Stock, or Class B Stock and Notes, as the case may be, pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Cash Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash shares of Class B Stock, or for Notes and Class B Stock, as the case may be, pursuant to 1.2(a)(iv) hereof. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, and any such computation shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fully.

Share Election. (a) Each Person (as defined in Section 1.6 hereof) person who, on or prior to the Election Date referred to in subsection (c) belowDate, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, Shares shall have the right to submit a Form of Election specifying one of the following: (as defined in Section 1.3(ci) hereof) specifying the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person stockholder desires to that all of his or her Company Shares be converted into Buying Entities' Common Stock the Base Consideration (such election being hereinafter sometimes referred to as a "Base Election"), (ii) that such stockholder desires that all of his or her Company Shares be converted into cash pursuant to the Common Cash Election, or (iii) that such stockholder desires that all of his or her Company Shares be converted into Stock Election or a Company OP Shares pursuant to the Stock Election. A stockholder may not make an election for less than all of his or her Company Shares. (b) Prior to the mailing of the Proxy Statement (as defined in Section 5.2(b) hereof)DHI shall prepare, Buyer shall designate the Company's registrar or transfer agent, or such other bank, trust company, Person or Persons as shall be acceptable to the Company to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company Company, a form of election (the "Form of Election") for mailing with the Proxy Statement Statement. The Form of Election shall be (i) mailed to the record holders of shares of Company Common Stock and the record holders of Company OP Units Shares as of the record date for the Company Special Stockholder Meeting, which Form of Election shall be and (ii) used by each record holder of shares of Company Common Shares to make the Base Election, the Cash Election or the Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, held, subject to the provisions of Section 1.4 hereof, by such holderElection. The Company shall also use its reasonable best efforts to make the Form of Election and the Proxy Statement available to all Persons persons who become holders of shares of Company Common Stock Shares during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Base Election, Cash Election or Stock Election shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day (the "Election Date") next preceding the date of the Company Special MeetingStockholder Meeting (the "Election Date"), a Form of Election properly completed and signed and accompanied by certificates certificate(s) for the shares of Company Common Stock or Company OP Units Shares ("Certificate(s)") to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of for delivery of such certificates Certificate(s) as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE or a commercial bank or trust company having an office or correspondent in the United States, provided that such certificates Certificate(s) are in fact delivered to the Exchange Agent within five NYSE three trading days after the date of execution of such guarantee of delivery). (dc) Any Form of Election may be revoked by the stockholder a record holder of Company Common Stock submitting it such Form of Election to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer DHI and the Company that the Merger has been abandonedabandoned or if either the Company's or DHI's stockholders fail to approve the Merger. If a Form of Election is revokedrevoked because the Merger has been abandoned or if either the Company's or DHI's stockholders fail to approve the Merger, the certificate or certificates Certificate(s) (or guarantees guarantee(s) of delivery, as appropriateif applicable) for the share share(s) of Company Common Stock or Company OP UnitStock, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (d) For purposes of this Agreement, a holder of Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Date or who submits a Form of Election that is not properly made or who acquires Company Shares after the date hereof pursuant to the Company Stock Purchase Plan shall be deemed to have made a Non-Election. If DHI or the Exchange Agent shall determine that any purported Base Election, Cash Election or Stock Election was not properly made, such purported Base Election, Cash Election or Stock Election shall be deemed to be of no force and effect and the holder making such purported Base Election, Cash Election or Stock Election shall, for purposes of this Agreement, be deemed to have made a Non-Election. (e) DHI shall have the sole discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immaterial defects in Forms of Election. The determination decision of DHI (or the Exchange Agent, if applicable) in such matters shall be conclusive and binding. Neither DHI nor the Exchange Agent shall be binding as under any obligation to whether or not elections have been properly made or revoked pursuant notify any stockholder of any defect in a Form of Election submitted to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines that any Common Stock Election was not properly made with respect to shares of Company Common Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall be exchanged in the Merger for cash pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereofAgent. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, 2.1.3(d) and any Section 2.1.3(e) and all such computation computations shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fullyStock.

Share Election. (a) Each Person (as defined in Section 1.6 hereof) person who, on or prior to the Election Date referred to in subsection (c) belowDate, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, Shares shall have the right to submit a Form of Election specifying one of the following: (as defined in Section 1.3(ci) hereof) specifying the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person stockholder desires to that all of his or her Company Shares be converted into Buying Entities' Common Stock the Base Consideration (such election being hereinafter sometimes referred to as a "Base Election"), (ii) that such stockholder desires that all of his or her Company Shares be converted into cash pursuant to the Common Cash Election, or (iii) that such stockholder desires that all of his or her Company Shares be converted into Stock Election or a Company OP Shares pursuant to the Stock Election. A stockholder may not make an election for less than all of his or her Company Shares. (b) Prior to the mailing of the Proxy Statement (as defined in Section 5.2(b) hereof)DHI shall prepare, Buyer shall designate the Company's registrar or transfer agent, or such other bank, trust company, Person or Persons as shall be acceptable to the Company to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer shall prepare and mail a form of election, which form shall be subject to the reasonable approval of the Company Company, a form of election (the "Form of Election") for mailing with the Proxy Statement Statement. The Form of Election shall be (i) mailed to the record holders of shares of Company Common Stock and the record holders of Company OP Units Shares as of the record date for the Company Special Stockholder Meeting, which Form of Election shall be and (ii) used by each record holder of shares of Company Common Shares to make the Base Election, the Cash Election or the Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, held, subject to the provisions of Section 1.4 hereof, by such holderElection. The Company shall also use its reasonable best efforts to make the Form of Election and the Proxy Statement available to all Persons persons who become holders of shares of Company Common Stock Shares during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Base Election, Cash Election or Stock Election shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day (the "Election Date") next preceding the date of the Company Special MeetingStockholder Meeting (the "Election Date"), a Form of Election properly completed and signed and accompanied by certificates certificate(s) for the shares of Company Common Stock or Company OP Units Shares ("Certificate(s)") to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of for delivery of such certificates Certificate(s) as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE or a commercial bank or trust company having an office or correspondent in the United States, provided that such certificates Certificate(s) are in fact delivered to the Exchange Agent within five NYSE three trading days after the date of execution of such guarantee of delivery). (dc) Any Form of Election may be revoked by the stockholder a record holder of Company Common Stock submitting it such Form of Election to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer DHI and the Company that the Merger has been abandonedabandoned or if either the Company's or DHI's stockholders fail to approve the Merger. If a Form of Election is revokedrevoked D.R. Horton, Inc. / Schuler Homes, Inc. ▇▇▇▇▇ment and Plan of Merger because the Merger has been abandoned or if either the Company's or DHI's stockholders fail to approve the Merger, the certificate or certificates Certificate(s) (or guarantees guarantee(s) of delivery, as appropriateif applicable) for the share share(s) of Company Common Stock or Company OP UnitStock, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (d) For purposes of this Agreement, a holder of Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Date or who submits a Form of Election that is not properly made or who acquires Company Shares after the date hereof pursuant to the Company Stock Purchase Plan shall be deemed to have made a Non-Election. If DHI or the Exchange Agent shall determine that any purported Base Election, Cash Election or Stock Election was not properly made, such purported Base Election, Cash Election or Stock Election shall be deemed to be of no force and effect and the holder making such purported Base Election, Cash Election or Stock Election shall, for purposes of this Agreement, be deemed to have made a Non-Election. (e) DHI shall have the sole discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immaterial defects in Forms of Election. The determination decision of DHI (or the Exchange Agent, if applicable) in such matters shall be conclusive and binding. Neither DHI nor the Exchange Agent shall be binding as under any obligation to whether or not elections have been properly made or revoked pursuant notify any stockholder of any defect in a Form of Election submitted to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines that any Common Stock Election was not properly made with respect to shares of Company Common Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall be exchanged in the Merger for cash pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereofAgent. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, SECTION 2.1.3(d) and any SECTION 2.1.3(e) and all such computation computations shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fullyStock.

Share Election. (a) Each Person (as defined in Section 1.6 hereof) who, on or prior to the Election Date referred to (as defined in subsection (cSection 2.3(c)) below, is a record holder of shares of Company Common Stock or a record holder of Company OP Units, as the case may be, shall have the right right, subject to Section 2.4, to submit a Form of Election (as defined in Section 1.3(c) hereof2.3(c)) specifying (i) the number of shares of Company Common Stock or Company OP Units, as the case may be, that such Person desires to be converted into Buying Entities' Common Stock cash pursuant to the Cash Election and/or (ii) the number of shares of Common Stock Election or a Company OP that such Person desires to be converted into Parent Shares pursuant to the Stock Election. . (b) Prior to the mailing of the Proxy Statement Statement/Prospectus (as defined in Section 5.2(b7.2(a)) hereof), Buyer shall designate to the record holders of shares of Common Stock of the Company's registrar or transfer agent, The Bank of New York, or such other bank, trust company, Person or Persons as Persons, shall be acceptable to the Company designated by Parent to act as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. (c) Buyer Parent or its authorized agent or representative shall prepare and mail a form of electionprepare, which form shall be subject to the reasonable approval of the Company Company, a form of election (the "Form of Election") for mailing with the Proxy Statement Statement/Prospectus. The Form of Election shall be (i) mailed to the record holders of shares of Company Common Stock and the record holders of Company OP Units as of the record date for the Company Special MeetingStockholders' Meeting (as defined in Section 7.2(a)), which Form of Election shall be and (ii) used by each record holder of shares of Company Common Stock and each record holder of Company OP Units who wishes to elect to receive shares of Buying Entities' Common make either the Cash Election or the Stock for any or all shares of Company Common Stock or Company OP Units, as the case may be, heldElection, subject to the provisions of Section 1.4 hereof, by such holder2.4. The Company shall also use its reasonable best efforts to make the Form of Election and the Proxy Statement Statement/Prospectus available to all Persons who become holders of shares of Company Common Stock during the period between such record date and the Election Date. Any such holder's election to receive shares of Buying Entities' Common Stock cash shall have been properly made only if the Exchange Agent shall have received at its designated office, by 5:00 p.m., New York City time on the business day next preceding the Closing Date (the "Election Date") next preceding the date of the Company Special Meeting), a Form of Election properly completed and signed and accompanied by certificates Certificate(s) for the shares share(s) of Company Common Stock or Company OP Units to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such certificates Certificate(s) as set forth in such Form of Election from a firm which is a member of a registered national securities exchange or of the NYSE or a commercial bank or trust company having an office or correspondent in the United States, provided that such certificates Certificate(s) are in fact delivered to the Exchange Agent within five three NYSE trading days after the date of execution of such guarantee of delivery). (d) Any Form of Election may be revoked by the stockholder a holder of Common Stock submitting it such Form of Election to the Exchange Agent only by written notice received by the Exchange Agent prior to 5:00 p.m., New York City time on the Election Date. In addition, all Forms of Election shall automatically be revoked if the Exchange Agent is notified in writing by Buyer Parent and the Company that the Merger has been abandonedabandoned or if the Company's stockholders fail to approve the Merger. If a Form of Election is revoked, the certificate or certificates Certificate(s) (or guarantees guarantee(s) of delivery, as appropriateif applicable) for the share share(s) of Company Common Stock or Company OP UnitStock, if any, to which such Form of Election relates shall promptly be returned to the stockholder submitting the same to the Exchange Agent. (e) The determination For purposes of this Agreement, a holder of Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Date shall be deemed to have made a Non-Election. If Parent or the Exchange Agent shall be binding as to whether or not elections have been properly made or revoked pursuant to this Section 1.3 with respect to shares of Company Common Stock and Company OP Units and when elections and revocations were received by it. If the Exchange Agent determines determine that any Common purported Cash Election or Stock Election was not properly made with respect to shares of Company Common made, such purported Cash Election or Stock or Company OP Units, then such shares of Company Common Stock or Company OP Units Election shall be treated by deemed to be of no force and effect and the holder making such purported Cash Election or Stock Election shall for purposes of this Agreement, be deemed to have made a Non-Election. (f) Parent shall have the sole discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immaterial defects in Forms of Election. The decision of Parent (or the Exchange Agent, if applicable) in such matters shall be conclusive and binding. Neither Parent nor the Exchange Agent at the Effective Time as Non-Electing Shares, and such shares shall will be exchanged under any obligation to notify any Person of any defect in the Merger for cash pursuant a Form of Election submitted to Section 1.2(a)(ii) hereof. If the Exchange Agent determines that any Company OP Election was not properly made with respect to Company OP Units, then such Company OP Units shall be treated by the Exchange Agent at the Effective Time as Non-Electing Units, and such units shall be exchanged for cash pursuant to 1.2(a)(iv) hereofAgent. The Exchange Agent shall also make all computations as to the allocation and the proration contemplated by Section 1.4 hereof, 2.4 and any all such computation computations shall be conclusive and binding on the holders of shares of Company Common Stock and the holders of Company OP Units. The Exchange Agent may, with the mutual agreement of Buyer and the Company, make such rules as are consistent with this Section 1.3 for the implementation of the elections provided for herein as shall be necessary or desirable to effect such elections fullyStock.