Common use of Subsequent Merger Clause in Contracts

Subsequent Merger. (a) Immediately after the Effective Time, Parent will cause the Surviving Corporation to merge with and into a newly created direct, wholly owned subsidiary of Parent (the “Sister Subsidiary”) and the separate corporate existence of the Surviving Corporation shall thereupon cease (the “Subsequent Merger”) if, prior to the Effective Time: (i) the Company shall have received the opinion of Sidley A▇▇▇▇▇ ▇▇▇▇▇ & W▇▇▇, special counsel to the Company, dated as of the Closing Date, to the effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), that each of Parent, Sister Subsidiary and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code, and that a conversion of Shares into the Consideration provided for hereunder (other than solely for the Per Share Cash Consideration) will be an exchange governed by Section 354 (and if applicable Section 356) of the Code to which Section 367(a)(1) of the Code does not apply and (ii) Parent shall have received the opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇, special counsel to Parent, dated as of the Closing Date, to the effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, that each of Parent, Sister Subsidiary and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code, and that a conversion of Shares into the Consideration provided for hereunder (other than solely for the Per Share Cash Consideration) will be an exchange governed by Section 354 (and if applicable Section 356) of the Code to which Section 367(a)(1) of the Code does not apply. Such opinions of counsel may be based on customary assumptions and representations, including representations of the Company and Parent. Each of the Company and Parent shall request its respective counsel to render opinions to the effect described above. In the event either party’s counsel is unable to render opinions to the effect described above, such counsel shall (at the request of the other party) provide a written explanation of the substantive reason or reasons causing such counsel to be unable to do so. To the extent either of such opinions is not received as set forth in the previous sentence, then Parent shall have no obligation to cause the Subsequent Merger to be consummated. (b) At the effective time of any Subsequent Merger, (i) Parent’s share of common stock of Sister Subsidiary will be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; (ii) Parent’s share of fixed value preferred stock of the Surviving Corporation will be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; and (iii) Parent’s 100 shares of common stock of Surviving Corporation will be converted into one hundred (100) shares of newly issued, fully-paid and non-assessable common stock, par value $0.01 per share, of the surviving corporation of the Subsequent Merger. (c) If the Subsequent Merger is effected, references herein to the Surviving Corporation shall refer to the Sister Subsidiary. (d) This Agreement is intended to constitute a “plan of reorganization” with respect to the Merger and Subsequent Merger (if consummated) for United States federal income tax purposes pursuant to which, for such purposes, the Merger and the Subsequent Merger (if consummated) are to be treated as a “reorganization” under Section 368(a) of the Code (to which each of Parent, Sister Subsidiary and the Company are to be parties under Section 368(b) of the Code) in which the Company is to be treated as merging directly with and into the Sister Subsidiary, with the Shares converted in such merger into the right to receive the consideration provided for hereunder. (e) If the Merger and the Subsequent Merger are consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger and Subsequent Merger for all Tax purposes consistent with Section 1.4(d). If the Merger is consummated but the Subsequent Merger is not consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger (as to those holders of Shares generally subject to U.S. federal income tax) as a taxable acquisition of the Shares by Parent in exchange for the consideration provided for hereunder.

Subsequent Merger. (a) Immediately after the Effective Time, Parent will cause the Surviving Corporation to merge with and into a newly created limited liability company which is a direct, wholly owned subsidiary Subsidiary of Parent (the “"Sister Subsidiary”") and the separate corporate existence of the Surviving Corporation shall thereupon cease (the “"Subsequent Merger”") if, prior to the Effective Time: (i) the Company shall have received the opinion of Sidley A▇▇▇▇▇ ▇▇▇▇▇ & W▇▇▇Pillsbury Winthrop LLP, special counsel to the Company, dated as of the Closing Date, to the effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “"Code”"), and that each of Parent, Sister Subsidiary Parent and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code, and that a conversion of Shares into the Consideration provided for hereunder (other than solely for the Per Share Cash Consideration) will be an exchange governed by Section 354 (and if applicable Section 356) of the Code to which Section 367(a)(1) of the Code does not apply and (ii) Parent shall have received the opinion of S▇▇▇▇▇▇▇ Sidley Austin Brown & C▇▇▇▇▇▇▇Wood LLP, special counsel to Parent, dated as of the Closing DateCl▇▇▇▇▇ ▇▇▇▇, to the ▇▇▇ effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that each of Parent, Sister Subsidiary Parent and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code. The parties agree to make such reasonable representations as may be requested by Pillsbury Winthrop LLP and/or Sidley Austin Brown & Wood LLP for ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇g such opinions, an▇ ▇▇ ▇▇▇▇▇▇▇ng ▇▇▇▇ opinions such counsel may rely on such representations. In the absence of a change in circumstances, if the Subsequent Merger will occur, Parent and that a conversion Sub currently expect to be able to make representations substantially to the effect of Shares into the Consideration provided for hereunder representations in Exhibit A (the "Parent Tax Certificate") (other than solely for the Per Share Cash Considerationrepresentation set forth in paragraph 2 thereof) will and the Company currently expects to be an exchange governed by Section 354 (and if applicable Section 356) able to make representations substantially to the effect of the Code to which Section 367(a)(1representations in Exhibit B (the "Company Tax Certificate") of (other than the Code does not apply. Such opinions of counsel may be based on customary assumptions and representations, including representations of the Company and Parentrepresentation set forth in paragraph 3 thereof). Each of the Company and Parent shall request its respective counsel to render opinions prior to the Effective Time to the effect described above. In the event either party’s 's counsel is unable to render opinions prior to the Effective Time to the effect described above, such counsel shall (at the request of the other party) provide prior to the Effective Time a written explanation of the substantive reason or reasons causing such counsel to be unable to do so. To the extent either the Company does not receive prior to the Effective Time the opinion described in clause (i) of such opinions is the first sentence of this Section 1.16(a) or Parent does not received as set forth receive prior to the Effective Time the opinion described in clause (ii) of the previous sentencefirst sentence of this Section 1.16(a), then Parent shall have no obligation to cause the Subsequent Merger to be consummated. If consummated, the Subsequent Merger shall become effective upon the filing of a certificate of merger (the "Subsequent Certificate of Merger"), executed in accordance with the relevant provisions of the Delaware Limited Liability Company Act, with the Secretary of State of the State of Delaware or such later time as may be specified in the Subsequent Certificate of Merger; provided, however, that, if consummated, the Subsequent Merger shall be effective immediately after the Effective Time (it being understood that in all events the Subsequent Merger, if consummated, shall be effective not later than the end of the same day as the Merger). (b) At the effective time of any the Subsequent Merger, (i) Parent’s each issued and outstanding share of common stock stock, $0.01 par value, of Sister Subsidiary will the Surviving Corporation shall be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of validly issued membership interest in the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; (ii) Parent’s share of fixed value preferred stock of the Surviving Corporation will be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; and (iii) Parent’s 100 shares of common stock of Surviving Corporation will be converted into one hundred (100) shares of newly issued, fully-paid and non-assessable common stock, par value $0.01 per share, of the surviving corporation of entity in the Subsequent Merger. (c) At the effective time of the Subsequent Merger, each issued and outstanding membership interest of the Sister Subsidiary shall be canceled and no consideration shall be delivered in exchange therefor. (d) If the Subsequent Merger is effected, references herein to the Surviving Corporation shall refer to the Sister Subsidiary. (d) This Agreement is intended to constitute a “plan of reorganization” with respect to the Merger and Subsequent Merger (if consummated) for United States federal income tax purposes pursuant to which, for such purposes, the Merger and the Subsequent Merger (if consummated) Merger, taken together, are intended to be treated for federal income tax purposes as a “"reorganization” " under Section 368(a) of the Code (to which each of Parent, Sister Subsidiary Parent and the Company are to be parties under Section 368(b) of the Code) in which the Company is to be treated as merging directly with and into the Sister SubsidiaryParent, with the Shares Company Common Stock, together with the associated Rights, converted in such merger into the right to receive the consideration provided for hereunder. (e) If the Merger and the Subsequent Merger are is consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger and Subsequent Merger for all Tax (as hereinafter defined) purposes consistent with Section 1.4(d1.16(d). If the Merger For purposes of this Agreement, "Affiliate" means, with respect to any Person, any other Person which directly or indirectly controls, is consummated but the Subsequent Merger controlled by or is not consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger (as to those holders of Shares generally subject to U.S. federal income tax) as a taxable acquisition of the Shares by Parent in exchange for the consideration provided for hereunderunder common control with such Person.

Subsequent Merger. (a) Immediately after the Effective Time, Parent will cause the Surviving Corporation to merge with and into a newly created direct, wholly owned subsidiary of Parent (the “"Sister Subsidiary”") and the separate corporate existence of the Surviving Corporation shall thereupon cease (the “"Subsequent Merger”") if, prior to the Effective Time: (i) the Company shall have received the opinion of Sidley AAustin Brown & Wood, specia▇ ▇▇▇▇▇▇▇ ▇▇ th▇ ▇▇▇▇ & W▇▇▇, special counsel to the Companympany, dated as of the Closing Date, to the effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “"Code”"), that each of Parent, Sister Subsidiary and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code, and that a conversion of Shares into the Consideration provided for hereunder (other than solely for the Per Share Cash Consideration) will be an exchange governed by Section 354 (and if applicable Section 356) of the Code to which Section 367(a)(1) of the Code does not apply and (ii) Parent shall have received the opinion of SSullivan & Cromwell, specia▇ ▇▇▇▇▇▇l t▇ & C▇▇▇▇▇▇▇, special counsel to Parent, dated as of the Closing Date, to the effect that the Merger and the Subsequent Merger, taken together, will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, that each of Parent, Sister Subsidiary and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code, and that a conversion of Shares into the Consideration provided for hereunder (other than solely for the Per Share Cash Consideration) will be an exchange governed by Section 354 (and if applicable Section 356) of the Code to which Section 367(a)(1) of the Code does not apply. Such opinions of counsel may be based on customary assumptions and representations, including representations of the Company and Parent. Each of the Company and Parent shall request its respective counsel to render opinions to the effect described above. In the event either party’s 's counsel is unable to render opinions to the effect described above, such counsel shall (at the request of the other party) provide a written explanation of the substantive reason or reasons causing such counsel to be unable to do so. To the extent either of such opinions is not received as set forth in the previous sentence, then Parent shall have no obligation to cause the Subsequent Merger to be consummated. (b) At the effective time of any Subsequent Merger, (i) Parent’s 's share of common stock of Sister Subsidiary will be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; (ii) Parent’s 's share of fixed value preferred stock of the Surviving Corporation will be converted into one newly issued, fully-paid and non-assessable share of fixed value preferred stock of the surviving corporation of the Subsequent Merger with a redemption amount and fair market value of $100; and (iii) Parent’s 's 100 shares of common stock of Surviving Corporation will be converted into one hundred (100) shares of newly issued, fully-paid and non-assessable common stock, par value $0.01 per share, of the surviving corporation of the Subsequent Merger. (c) If the Subsequent Merger is effected, references herein to the Surviving Corporation shall refer to the Sister Subsidiary. (d) This Agreement is intended to constitute a “"plan of reorganization” " with respect to the Merger and Subsequent Merger (if consummated) for United States federal income tax purposes pursuant to which, for such purposes, the Merger and the Subsequent Merger (if consummated) are to be treated as a “"reorganization” " under Section 368(a) of the Code (to which each of Parent, Sister Subsidiary and the Company are to be parties under Section 368(b) of the Code) in which the Company is to be treated as merging directly with and into the Sister Subsidiary, with the Shares converted in such merger into the right to receive the consideration provided for hereunder. (e) If the Merger and the Subsequent Merger are consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger and Subsequent Merger for all Tax purposes consistent with Section 1.4(d). If the Merger is consummated but the Subsequent Merger is not consummated, each of the parties hereto shall, and shall cause its Affiliates to, treat the Merger (as to those holders of Shares generally subject to U.S. federal income tax) as a taxable acquisition of the Shares by Parent in exchange for the consideration provided for hereunder.