Common use of Conversion to a Corporation Clause in Contracts

Conversion to a Corporation. (a) Notwithstanding anything to the contrary set forth in this Agreement, and without any need for consent or approval of any Member (other than as provided in Section 6.03), the Board of Directors may, at any time upon not fewer than ten (10) days’ prior written notice given to each Member, cause the Company to convert into a corporation (the “Corporation”), by such means, subject to Section 12.04(b) below (including filing of appropriate certificates of conversion and incorporation; merger or consolidation or other business combination; Transfer of all or a part of the Company’s assets; and/or exchange of Shares and other Equity Securities for the securities of such corporation) as the Board of Directors may reasonably select (an “Incorporation”). The Board of Directors shall provide that upon such conversion, each Share of each class and Series and other Equity Securities shall be exchanged for, or otherwise converted into, a security of such corporation (i) having voting rights and powers and economic interest (including liquidation and dividend preferences and similar rights, but excluding any rights to distributions under Section 4.02 or otherwise specific to ownership of an interest in an entity treated as a partnership for federal income tax purposes) substantially equivalent, to the extent determined by the Board of Directors in good faith to be reasonably practicable, to the voting rights and powers and economic interest (including liquidation and dividend preferences and similar rights, but excluding any rights to distributions under Section 4.02 or otherwise specific to ownership of an interest in an entity treated as a partnership for federal income tax purposes) of the Shares of such class and Series and other Equity Securities being so exchanged or otherwise converted; provided, however, the Incentive Shares with a Floor Amount greater than zero may be converted into the same class of Equity Securities as the Common Shares, with such number of Equity Securities adjusted downward to reflect the differences, if any, in the fair market value of the relevant Incentive Share as compared to the fair market value of a share of Common Share and (ii) having such terms, conditions, obligations and liabilities set forth in this Agreement and such other terms, conditions, obligations and liabilities (including mandatory and optional conversion provisions) as are, contained in the Investors’ Rights Agreement, the Voting Agreement, Right of First Refusal and Co-Sale Agreement. In determining the fair market value of Common Shares for purposes of the preceding sentence, such values shall be determined based upon the amount each such Share would receive if the Company sold its assets for their fair market value as a going concern, paid its liabilities and distributed the proceeds in accordance with Section 4.01(b). For the avoidance of doubt, it is the intention of the parties that any shares or the number of shares in the Corporation to be received pursuant to this Section 12.04 will afford to the party receiving the same economic interest, rights, benefits and obligations as were associated with the held by such party immediately prior to such reorganization, both generally and relative to the holders of other shares of the Corporation (but subject to the terms hereof, including the proviso in the second sentence of this Section 12.04). In addition, the consent to any conversion transaction pursuant to the terms of this Section 12.04 shall be conclusive and binding on all Members, and the Members hereby waive any dissenters’ or appraisal rights that they may have pursuant to the Act, and agree to take any actions necessary (including voting Shares) in order to facilitate and effect such conversion transaction. The Company and the Members agree to use commercially reasonable efforts to effect such Corporate Conversion in a manner intended to be tax-free for the holders of the Units to the extent permitted by any applicable law. (b) By becoming parties to this Agreement, all Members consent to the conversion of their Shares and other Equity Securities into securities in such corporation in accordance with the terms set forth herein. Consequently, subject to the requirements described in Section 12.04(a), each Member agrees to reasonably cooperate, and cause its Affiliates to reasonably cooperate, to take such actions and execute such documents as the Board of Directors may reasonably request, in order to consummate any proposed conversion or reorganization into a corporation.