Elective Exchanges. (i) Subject to Section 2.1(d), each Company Unitholder shall be entitled at any time and from time to time, upon the terms and subject to the conditions hereof and the LLC Agreement, to surrender Company Units and a corresponding number of shares of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and the like) to the Company in exchange for the delivery to such Company Unitholder (or its designee) of either, at the option of the Corporation, (x) a number of shares of Class A Common Stock that is equal to the product of the number of Company Units surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange of Company Units and Class B Common Stock for Class A Common Stock or the Cash Settlement, an “Exchange”), provided that any such Exchange is for a minimum of the lesser of (A) one hundred (100) Company Units and (B) all of the Company Units then held by such Company Unitholder and its Affiliates, except that such minimum shall not apply if such Exchange is in connection with the exercise of any incidental registration rights pursuant to the LLC Agreement; provided that, notwithstanding anything to the contrary contained herein, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stock, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel. (ii) A Company Unitholder shall exercise its right to Exchange Company Units and a corresponding number of shares of Class B Common Stock as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Units, (C) any stock certificates in such Company Unitholder’s possession representing such shares of Class B Common Stock and (D) if the Corporation, the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and the Company have received the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii) or such later date that is a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash Settlement, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange. (iii) Within two (2) Business Days following the Business Day on which the Corporation and the Company have received the Exchange Notice, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company Unitholder) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed to have not elected the Cash Settlement method. Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number of withdrawn Company Units and corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Notice, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice.
Appears in 1 contract
Elective Exchanges. (i) Subject to Section 2.1(d2.1(b), each Company Unitholder shall be entitled at any time and from time to time, otherwise upon the terms and subject to the conditions hereof and of the LLC Agreement, each Company Unitholder shall have the right from time to time (but subject to the Senior Unitholder Restriction, in the case of Senior Unitholders) to surrender Company Units and Exchangeable Units, and, for each Company Class B Unit surrendered, a corresponding number of shares share of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and similar restrictions, except for those arising under this Agreement and the likeLLC Agreement) to the Company in exchange for and to thereby cause the delivery Company to such deliver to that Company Unitholder (or its designee) the Exchange Consideration as set forth herein (an “Exchange”).
(ii) For the avoidance of eitherdoubt, at and notwithstanding anything else in this Agreement or the option LLC Agreement to the contrary: (A) no Exchange of the Corporation, (x) Class B Units may be made without a concurrent Exchange of an equivalent number of shares of Class A B Common Stock that is equal Stock; (B) the Corporation may elect to the product settle an Exchange, in whole or in part, by delivery of the Cash Settlement as to all or any portion of the total number of Company Exchangeable Units being surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange and delivery of Company Units and Class B Common Stock for Class A Common Stock or as to any remaining portion not satisfied by the Cash Settlement; (C) the Board (or a committee to which the Board has delegated such authority) may, an “Exchange”)in its sole discretion, provided deny or limit, in whole or in part, any Exchange that fails to comply with any such Exchange is for a minimum of requirements therefor that the lesser of (A) one hundred (100) Company Units and (B) all of Corporation, the Company Units then held by such Company Unitholder and its AffiliatesCompany, except that such minimum shall not apply if such Exchange is in connection with or the exercise of any incidental registration rights pursuant to the LLC Agreement; provided Board may have established, or that, notwithstanding anything if effected, would adversely affect the trading markets in the Company's Common Stock as determined by the Board (or a committee thereof to which the contrary contained hereinBoard has delegated such authority) in its sole discretion. In particular, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stockan Exchange, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel determines, after consultation with counsel, that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(iiiii) A Company Unitholder shall exercise its right to an Exchange of Company Exchangeable Units and and, in the case of Company Class B Units, a corresponding number of shares of Class B Common Stock Stock, as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, ,
(A) a written election of exchange in respect of the Company Exchangeable Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Exchangeable Units, (C) if applicable, any stock certificates in such Company Unitholder’s possession representing such the shares of Class B Common Stock required to be surrendered in connection with an Exchange of Class B Units, and (D) such other information, documents or instruments as either the Company or the Corporation may reasonably require in connection with the Exchange. If any certificate referenced in clause (B) or (C) of the immediately preceding sentence is alleged to be lost, stolen or destroyed, the Company Unitholder shall furnish, in lieu thereof, an affidavit of loss and, if required by the Company or the Corporation, an indemnity in a customary amount to indemnify the Company or the Corporation, as applicable, against any exchanging Subsidiary requires the delivery claim that may be made against it on account of the certification contemplated by Section 2.4(b)alleged loss, theft or destruction of such certification or written notice from such Company Unitholder that it is unable to provide such certificationcertificate. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and the Company have received After the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii2.1(a)(iii) have been delivered to the Company, and unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(v) or such later date that is a Business Day specified the Company has refused to honor the request in full pursuant to Section 2.1(a)(ii), the Company will effect the Exchange in accordance with its then-current policies (including policies intended to ensure orderly liquidity for Exchanging Company Unitholders and stability in the trading market for the Company’s securities) and inform the Company Unitholder of the effective date of such Exchange Notice (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash SettlementSettlement as to all Company Exchangeable Units tendered, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iiiiv) Within At least two (2) Business Days following the Business Day on which the Corporation and the Company have received before the Exchange NoticeDate, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company UnitholderUnitholders) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed not to have not elected the Cash Settlement method. .
(v) Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. 5:00 p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number and class of withdrawn Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock and (B) if any, the number and class of Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Noticeeffect, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change change of Control control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice, and all actions taken to effect the Exchange contemplated by that Exchange Notice shall be deemed rescinded.
Appears in 1 contract
Elective Exchanges. (i) Subject to Section 2.1(d), each Each Company Unitholder shall be entitled at any time and from time to time, upon the terms and subject to the conditions hereof and the LLC Agreement, to surrender Company Units and a corresponding number of shares of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and the like) to the Company in exchange for the delivery to such Company Unitholder (or its designee) of either, at the option of the Corporation, (x) a number of shares of Class A Common Stock that is equal to the product of the number of Company Units surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange of Company Units and Class B Common Stock for Class A Common Stock or the Cash SettlementStock, an “Exchange”), provided that any such Exchange is for a minimum of the lesser of (A) one hundred percent (1001%) of the then outstanding Company Units and (B) all of the Company Units then held by such Company Unitholder and its Affiliatesaffiliates, except that such minimum shall not apply if such Exchange is in connection with the exercise of any incidental registration rights pursuant to the LLC Agreement; provided that, notwithstanding anything to the contrary contained herein, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stock, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation Agreement or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Registration Rights Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(ii) A Company Unitholder shall exercise its right to Exchange Company Units and a corresponding number of shares of Class B Common Stock as set forth in in
Section 2.1(a2.1 (a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Units, (C) any stock certificates in such Company Unitholder’s possession representing such shares of Class B Common Stock and (D) if the Corporation, Corporation or the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an An Exchange pursuant to this Section 2.1(a) shall be effected on the fifth third Business Day following the Business Day on which the Corporation and the Company have received the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii) or such later date that is a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash Settlement, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iii) Within two (2) Business Days following the Business Day on which the Corporation and the Company have received the Exchange Notice, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company Unitholder) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed to have not elected the Cash Settlement method. Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number of withdrawn Company Units and corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Notice, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice.
Appears in 1 contract
Elective Exchanges. (i) Subject to Section 2.1(d), each Company Unitholder shall be entitled at any time and from time to time, upon the terms and subject to the conditions hereof and the LLC Agreement, to surrender Company Units and a corresponding number of shares of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and the like) to the Company in exchange for the delivery to such Company Unitholder (or its designee) of either, at the option of the Corporation, (x) a number of shares of Class A Common Stock that is equal to the product of the number of Company Units surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange of Company Units and Class B Common Stock for Class A Common Stock or the Cash Settlement, an “Exchange”), provided that any such Exchange is for a minimum of the lesser of (A) one hundred [ ] percent (100[ ]%) of the then outstanding Company Units and (B) all of the Company Units then held by such Company Unitholder and its Affiliatesaffiliates, except that such minimum shall not apply if such Exchange is in connection with the exercise of any incidental registration rights pursuant to the LLC Agreement; provided that, notwithstanding anything to the contrary contained herein, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stock, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(ii) A Company Unitholder shall exercise its right to Exchange Company Units and a corresponding number of shares of Class B Common Stock as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Units, (C) any stock certificates in such Company Unitholder’s possession representing such shares of Class B Common Stock and (D) if the Corporation, the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and the Company have received the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii) or such later date that is a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash Settlement, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iii) Within two (2) Business Days following the Business Day on which the Corporation and the Company have received the Exchange Notice, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company Unitholder) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed to have not elected the Cash Settlement method. Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number of withdrawn Company Units and corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Notice, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice.
Appears in 1 contract
Elective Exchanges. (i) Subject to Section 2.1(d), each Each Company Unitholder shall be entitled at any time and from time to time, upon the terms and subject to the conditions hereof and the LLC Agreement, to surrender Company Units and a corresponding number of shares of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and the like) to the Company in exchange for the delivery to such the exchanging Company Unitholder (or its designee) of either, at the option of the Corporation, (x) a number of shares of Class A Common Stock that is equal to the product of the number of Company Units surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange of Company Units and Class B Common Stock for Class A Common Stock or the Cash SettlementStock, an “Exchange”), ; provided that any such Exchange is for a minimum of the lesser of (Ai) one hundred 5,000 Company Units, (100ii) such other number of Company Units as may be determined by the Managing Member with respect to any particular Exchange, and (Biii) all of the Company Units then held by such Company Unitholder and its Affiliates, except that such minimum shall not apply if such Exchange is in connection with the exercise of any incidental registration rights pursuant to the LLC Agreement; provided that, notwithstanding anything to the contrary contained herein, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stock, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnelUnitholder.
(ii) A Company Unitholder shall exercise its right to Exchange Company Units and a corresponding number of shares of Class B Common Stock as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholderholder, (B) any certificates in such Company Unitholder’s possession representing such Company Units, (C) any if all of the Company Units then held by such Company Unitholder are being surrendered, all stock certificates in such Company Unitholder’s possession representing such all shares of Class B Common Stock issued to such Company Unitholder according to the books and records of the Corporation and (D) if the Corporation, Corporation or the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless Upon a Company Unitholder exercising its right to Exchange, the Corporation shall take such actions as (x) may be required to ensure that such Company Unitholder timely has delivered a Retraction Notice receives the shares of Class A Common Stock that such exchanging Company Unitholder is entitled to receive in connection with such Exchange pursuant to this Section 2.1(a)(iii2.1(a), and (y) may be reasonably within its control that would cause such Exchange to be treated for purposes of the Tax Receivable Agreement as an “Exchange” (as such term is defined in the Tax Receivable Agreement). With respect to any Company Unitholder exercising its right to Exchange, the Corporation shall have the right but not the obligation to acquire the Company Units such Company Unitholder is requesting to be exchanged directly from such Company Unitholder in exchange for shares of Class A Common Stock. If an exchanging Company Unitholder receives the shares of Class A Common Stock that it is entitled to receive in connection with an Exchange pursuant to this Section 2.1(a) from the Corporation pursuant to this Section 2.1(a)(ii), the Company Unitholder shall have no further right to receive shares of Class A Common Stock from the Company in connection with that Exchange, and the Corporation shall be deemed to have satisfied its obligations under the second sentence of this Section 2.1(a)(ii). An Exchange pursuant to this Section 2.1(a) shall be deemed to have been effected on the fifth Business Day (such Business Day, the “Exchange Date”) immediately following the earliest Business Day on as of which the Corporation and the Company have received the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii) or such later date that is a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash Settlement, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iii) Within two (2) Business Days following On the Business Day on which the Corporation and the date hereof, a Company have received the Unitholder may exercise its right to Exchange Notice, the Corporation shall give written notice (the “Contribution Notice”) Company Units for an equivalent number of shares of Class A Common Stock pursuant to the Company (with a copy to the exchanging Company Unitholder) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed to have not elected the Cash Settlement methodthis Section 2.1(a). Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at the Corporation shall acquire any time prior to 5:00p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number of withdrawn such Company Units and corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if directly from the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Notice, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of for such shares of Class A Common Stock Stock. Notwithstanding anything herein or any mergerin the Tax Receivable Agreement to the contrary, consolidation or other business combination. The timely delivery of the Corporation, the Company and such Company Unitholder all intend to treat such Exchange as a Retraction Notice indicating an entire withdrawal transfer described in section 351 of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange NoticeCode.
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Sources: Exchange Agreement (Pennymac Financial Services, Inc.)
Elective Exchanges. (i) Subject to Section 2.1(d2.1(b), each Company Unitholder shall be entitled at any time and from time to time, otherwise upon the terms and subject to the conditions hereof and of the LLC Agreement, each Company Unitholder shall have the right from time to time (but subject to the Senior Unitholder Restriction, in the case of Senior Unitholders) to surrender Company Units and Exchangeable Units, and, for each Company Class B Unit surrendered, a corresponding number of shares share of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and similar restrictions, except for those arising under this Agreement and the likeLLC Agreement) to the Company in exchange for and to thereby cause the delivery Company to such deliver to that Company Unitholder (or its designee) the Exchange Consideration as set forth herein (an “Exchange”).
(ii) For the avoidance of eitherdoubt, at and notwithstanding anything else in this Agreement or the option LLC Agreement to the contrary: (A) no Exchange of the Corporation, (x) Class B Units may be made without a concurrent Exchange of an equivalent number of shares of Class A B Common Stock that is equal Stock; (B) the Corporation may elect to the product settle an Exchange, in whole or in part, by delivery of the Cash Settlement as to all or any portion of the total number of Company Exchangeable Units being surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange and delivery of Company Units and Class B Common Stock for Class A Common Stock or as to any remaining portion not satisfied by the Cash Settlement; (C) the Board (or a committee to which the Board has delegated such authority) may, an “Exchange”)in its sole discretion, provided deny or limit, in whole or in part, any Exchange that fails to comply with any such Exchange is for a minimum of requirements therefor that the lesser of (A) one hundred (100) Company Units and (B) all of Corporation, the Company Units then held by such Company Unitholder and its AffiliatesCompany, except that such minimum shall not apply if such Exchange is in connection with or the exercise of any incidental registration rights pursuant to the LLC Agreement; provided Board may have established, or that, notwithstanding anything if effected, would adversely affect the trading market in the Company's Common Stock as determined by the Board (or a committee thereof to which the contrary contained hereinBoard has delegated such authority) in its sole discretion. In particular, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stockan Exchange, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel determines, after consultation with counsel, that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(iiiii) A Company Unitholder shall exercise its right to an Exchange of Company Exchangeable Units and and, in the case of Company Class B Units, a corresponding number of shares of Class B Common Stock Stock, as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, ,
(A) a written election of exchange in respect of the Company Exchangeable Units to be exchanged substantially in the form of Exhibit A hereto (an ““ Exchange NoticeNotice ”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Exchangeable Units, (C) if applicable, any stock certificates in such Company Unitholder’s possession representing such the shares of Class B Common Stock required to be surrendered in connection with an Exchange of Class B Units, and (D) such other information, documents or instruments as either the Company or the Corporation may reasonably require in connection with the Exchange. If any certificate referenced in clause (B) or (C) of the immediately preceding sentence is alleged to be lost, stolen or destroyed, the Company Unitholder shall furnish, in lieu thereof, an affidavit of loss and, if required by the Company or the Corporation, an indemnity in a customary amount to indemnify the Company or the Corporation, as applicable, against any exchanging Subsidiary requires the delivery claim that may be made against it on account of the certification contemplated by Section 2.4(b)alleged loss, theft or destruction of such certification or written notice from such Company Unitholder that it is unable to provide such certificationcertificate. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and the Company have received After the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(iii) have been delivered to the Company, and unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(v) or the Company has refused to honor the request in full pursuant to Section 2.1(a)(ii) or such later date that is a Business Day specified in , the Company will effect the Exchange Notice in accordance with its then-current policies and inform the Company Unitholder of the effective date of such Exchange (such Business Day, the ““ Exchange DateDate ”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash SettlementSettlement as to all Company Exchangeable Units tendered, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iiiiv) Within At least two (2) Business Days following the Business Day on which the Corporation and the Company have received before the Exchange NoticeDate, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company UnitholderUnitholders) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed not to have not elected the Cash Settlement method. .
(v) Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. 5:00 p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) specifying (A) the number and class of withdrawn Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock and (B) if any, the number and class of Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Noticeeffect, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice, and all actions taken to effect the Exchange contemplated by that Exchange Notice shall be deemed rescinded.
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Elective Exchanges. (i) Subject to Section 2.1(d)2.1(c) , each Company Unitholder shall be entitled at any time and from time to time, otherwise upon the terms and subject to the conditions hereof and of the LLC Agreement, each Company Unitholder shall have the right from time to time (but subject to the Senior Unitholder Restriction, in the case of Senior Unitholders) to surrender Company Units and Exchangeable Units, and, for each Company Class B Unit surrendered, a corresponding number of shares share of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and similar restrictions, except for those arising under this Agreement and the likeLLC Agreement) to the Company in exchange for and to thereby cause the delivery Company to such deliver to that Company Unitholder (or its designee) the Exchange Consideration as set forth herein (an “ Exchange ”).
(ii) For the avoidance of eitherdoubt, at and notwithstanding anything else in this Agreement or the option LLC Agreement to the contrary: (A) no Exchange of the Corporation, (x) Class B Units may be made without a concurrent Exchange of an equivalent number of shares of Class A B Common Stock that is equal Stock; (B) the Corporation may elect to the product settle an Exchange, in whole or in part, by delivery of the Cash Settlement as to all or any portion of the total number of Company Exchangeable Units being surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange and delivery of Company Units and Class B Common Stock for Class A Common Stock or as to any remaining portion not satisfied by the Cash Settlement; (C) the Board (or a committee to which the Board has delegated such authority) may, an “Exchange”)in its sole discretion, provided deny or limit, in whole or in part, any Exchange that fails to comply with any such Exchange is for a minimum of requirements therefor that the lesser of (A) one hundred (100) Company Units and (B) all of Corporation, the Company Units then held by such Company Unitholder and its AffiliatesCompany, except that such minimum shall not apply if such Exchange is in connection with or the exercise of any incidental registration rights pursuant to the LLC Agreement; provided Board may have established, or that, notwithstanding anything to if effected, would adversely affect the contrary contained hereintrading market in the Company's Common Stock. In particular, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stockan Exchange, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(iiiii) A Company Unitholder shall exercise its right to an Exchange of Company Exchangeable Units and and, in the case of Company Class B Units, a corresponding number of shares of Class B Common Stock Stock, as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Exchangeable Units to be exchanged [Signature Page to Exchange Agreement] substantially in the form of Exhibit A hereto (an ““ Exchange NoticeNotice ”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Exchangeable Units, (C) if applicable, any stock certificates in such Company Unitholder’s possession representing such the shares of Class B Common Stock required to be surrendered in connection with an Exchange of Class B Units, and (D) if the Corporationsuch other information, documents or instruments as either the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and may reasonably require in connection with the Company have received Exchange. After the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(iii) have been delivered to the Company, and unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(v) or the Company has refused to honor the request in full pursuant to Section 2.1(a)(ii) or such later date that is a Business Day specified in , the Company will effect the Exchange Notice in accordance with its then-current policies and inform the Company Unitholder of the effective date of such Exchange (such Business Day, the ““ Exchange DateDate ”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash SettlementSettlement as to all Company Exchangeable Units tendered, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iiiiv) Within At least two (2) Business Days following the Business Day on which the Corporation and the Company have received before the Exchange NoticeDate, the Corporation shall give written notice (the ““ Contribution NoticeNotice ”) to the Company (with a copy to the exchanging Company UnitholderUnitholders) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed not to have not elected the Cash Settlement method. .
(v) Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. 5:00 p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the ““ Retraction NoticeNotice ”) to the Company (with a copy to the Corporation) specifying (A) the number and class of withdrawn Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock and (B) if any, the number and class of Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Noticeeffect, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice, and all actions taken to effect the Exchange contemplated by that Exchange Notice shall be deemed rescinded.
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Elective Exchanges. (i) Subject to Section 2.1(d)2.1(b) , each Company Unitholder shall be entitled at any time and from time to time, otherwise upon the terms and subject to the conditions hereof and of the LLC Agreement, each Company Unitholder shall have the right from time to time (but subject to the Senior Unitholder Restriction, in the case of Senior Unitholders) to surrender Company Units and Exchangeable Units, and, for each Company Class B Unit surrendered, a corresponding number of shares share of Class B Common Stock (in each case, free and clear of all liens, encumbrances, rights of first refusal and similar restrictions, except for those arising under this Agreement and the likeLLC Agreement) to the Company in exchange for and to thereby cause the delivery Company to such deliver to that Company Unitholder (or its designee) the Exchange Consideration as set forth herein (an “ Exchange ”).
(ii) For the avoidance of eitherdoubt, at and notwithstanding anything else in this Agreement or the option LLC Agreement to the contrary: (A) no Exchange of the Corporation, (x) Class B Units may be made without a concurrent Exchange of an equivalent number of shares of Class A B Common Stock that is equal Stock; (B) the Corporation may elect to the product settle an Exchange, in whole or in part, by delivery of the Cash Settlement as to all or any portion of the total number of Company Exchangeable Units being surrendered multiplied by the Exchange Rate or (y) the Cash Settlement (an exchange and delivery of Company Units and Class B Common Stock for Class A Common Stock or as to any remaining portion not satisfied by the Cash Settlement; (C) the Board (or a committee to which the Board has delegated such authority) may, an “Exchange”)in its sole discretion, provided deny or limit, in whole or in part, any Exchange that fails to comply with any such Exchange is for a minimum of requirements therefor that the lesser of (A) one hundred (100) Company Units and (B) all of Corporation, the Company Units then held by such Company Unitholder and its AffiliatesCompany, except that such minimum shall not apply if such Exchange is in connection with or the exercise of any incidental registration rights pursuant to the LLC Agreement; provided Board may have established, or that, notwithstanding anything to if effected, would adversely affect the contrary contained hereintrading market in the Company's Common Stock. In particular, a Company Unitholder shall not be entitled to Exchange Company Units and Class B Common Stockan Exchange, and the Corporation and Company shall have the right to refuse to honor any request for an Exchange, at any time or during any period if the Corporation or the Company determines based on the advice of counsel that such Exchange (x) would be prohibited by law or regulation (including, without limitation, the unavailability of a registration of such Exchange under the Securities Act of 1933, as amended, or an exemption from the registration requirements thereof) or (y) would not be permitted under any agreement with the Corporation, the Company or any of their subsidiaries to which the applicable Company Unitholder is party (including, without limitation, the LLC Agreement) or (solely in the case of an Exchange requested by an officer, director or other personnel of the Corporation, the Company or any of their subsidiaries) any written policies of the Corporation related to restrictions on trading applicable to its officers, directors or other personnel.
(iiiii) A Company Unitholder shall exercise its right to an Exchange of Company Exchangeable Units and and, in the case of Company Class B Units, a corresponding number of shares of Class B Common Stock Stock, as set forth in Section 2.1(a) by delivering to the Company, with a contemporaneous copy delivered to the Corporation, in each case during normal business hours at the principal executive offices of the Company and the Corporation, respectively, (A) a written election of exchange in respect of the Company Exchangeable Units to be exchanged substantially in the form of Exhibit A hereto (an “Exchange Notice”), duly executed by such Company Unitholder, (B) any certificates in such Company Unitholder’s possession representing such Company Exchangeable Units, (C) if applicable, any stock certificates in such Company Unitholder’s possession representing such the shares of Class B Common Stock required to be surrendered in connection with an Exchange of Class B Units, and (D) if the Corporationsuch other information, documents or instruments as either the Company or any exchanging Subsidiary requires the delivery of the certification contemplated by Section 2.4(b), such certification or written notice from such Company Unitholder that it is unable to provide such certification. Unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(iii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth Business Day following the Business Day on which the Corporation and may reasonably require in connection with the Company have received Exchange. After the items specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(ii2.1(a)(iii) have been delivered to the Company, and unless such Company Unitholder timely has delivered a Retraction Notice pursuant to Section 2.1(a)(v) or such later date that is a Business Day specified the Company has refused to honor the request in full pursuant to Section 2.1(a)(ii), the Company will effect the Exchange Notice in accordance with its then-current policies and inform the Company Unitholder of the effective date of such Exchange (such Business Day, the “Exchange Date”). On the Exchange Date, all rights of the exchanging Company Unitholder as a holder of the Company Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange shall cease, and unless the Corporation has elected Cash SettlementSettlement as to all Company Exchangeable Units tendered, such Company Unitholder (or its designee) 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 Company Unitholder in respect of such Exchange.
(iiiiv) Within At least two (2) Business Days following the Business Day on which the Corporation and the Company have received before the Exchange NoticeDate, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the exchanging Company UnitholderUnitholders) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed not to have not elected the Cash Settlement method. .
(v) Notwithstanding anything herein to the contrary, (x) a Company Unitholder may withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00p.m. 5:00 p.m. New York City time, on the Business Day immediately prior to the Exchange Date by giving written notice (the ““ Retraction NoticeNotice ”) to the Company (with a copy to the Corporation) specifying (A) the number and class of withdrawn Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock and (B) if any, the number and class of Company Exchangeable Units and, as to Company Class B Units, the corresponding number of shares of Class B Common Stock, (B) if any, the number of Company Units and corresponding number of shares of Class B Common Stock as to which the Exchange Notice remains in effect and (C) if the Company Unitholder so determines, a new Exchange Date or any other new or revised information permitted in the Exchange Noticeeffect, and (y) a Company Unitholder may specify, in an applicable Exchange Notice, that the Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or event, including the consummation of a purchase by another Person (whether in a tender or exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares of Class A Common Stock or any merger, consolidation or other business combination. The timely delivery of a Retraction Notice indicating an entire withdrawal of the Exchange Notice pursuant to clause (x) above and, in respect of clause (y) above, the termination of the transaction or event prior to the consummation thereof, shall, in either case, terminate all of the exchanging Company Unitholder’s, Company’s and Corporation’s rights and obligations under this Section 2.1(a) arising from that particular Exchange Notice, and all actions taken to effect the Exchange contemplated by that Exchange Notice shall be deemed rescinded.
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