Common use of Company Conversion Clause in Contracts

Company Conversion. (a) The Company shall convert into a Delaware corporation (such conversion pursuant to this Section 2.8, the “Section 2.8 Conversion”) under Section 18-216 of the Act or any other reasonable means determined by the Board of Managers upon the earliest to occur of the following (each, a “Triggering Event”): (i) at any time, upon the approval of the Board of Managers; and (ii) at any time upon the approval of (A) the Majority Holders (including at least two Common Holders) and (B) a majority of the Independent Managers; (iii) at any time after December 31, 2010, if at such time Tax Distributions under Section 5.1(e)(ii)(A)(1) have not been approved (and are not reasonably expected to be approved based on prior Tax Distributions or otherwise) for 2011 by the Board of Managers and a majority of the Independent Managers, upon the approval of the Majority Holders (including at least two Common Holders), provided that the Board of Managers and the Independent Manager approvals under this clause (iii) shall be deemed to have been granted even if each such approval is subject to (1) the Company having equity capital immediately following the payment of any such Tax Distributions in an amount at least equal to the Required Capital Amount and (2) the condition set forth in the parenthetical in Section 5.1(e)(ii)(C)(1); (iv) at any time after December 31, 2009, upon the request of the U.S. Department of the Treasury and with the approval of a majority of the Independent Managers, provided that Tax Distributions under Section 5.1(e)(ii)(A)(1) for the taxable period during which such Company Conversion occurs have been previously approved by a majority of the Independent Managers or the President’s Designee, as provided in Section 5.1(e)(ii)(B); and (v) if for any reason, the Company is or otherwise becomes treated as a “C” corporation for U.S. Federal income tax purposes; provided, however, that in connection with any conversion under the preceding clauses (i), (ii), (iii) or (iv), the Company shall have an amount of equity capital immediately following such conversion (as determined by the Board of Managers in good faith) equal to at least the Required Capital Amount and such conversion shall otherwise be in compliance with the BHC Act. (b) The Company shall cause the Section 2.8 Conversion to be consummated as promptly as reasonably practicable following occurrence of the Triggering Event and, in any event, no later than the end of the calendar quarter immediately following the calendar quarter in which the Triggering Event occurs. The Company shall use reasonable best efforts to effect such conversion and any related transactions in a fashion (i) that is tax free to all of the Members and indirect equityholders of the Company, including all of the Blocker Corps, and (ii) that results in the owners of the equity in each Blocker Corp, specifically established in connection with the Bank Holding Company Restructuring Transactions or the Blocker Corp BHC Restructuring Transactions whose sole business activity is owning (directly or indirectly) Interests in the Company, owning direct equity in the Company; provided, that it shall not be a condition to such conversion that the tax treatment described in the preceding clause (i) is obtained or that the result described in clause (ii) is obtained. In connection therewith, to the extent requested by any Blocker Corp, the Company shall merge with such Blocker Corp (with the Company surviving), if such merger is approved by the Board of Managers following receipt by the Company of sufficient assurances (in the reasonable discretion of the Board of Managers) that it will not (i) assume any liabilities of such Blocker Corp for which the Company will not be fully indemnified by a creditworthy entity or (ii) become subject to any obligations or restrictions of a material nature. The Company shall use reasonable best efforts to effect the conversion in a manner that all material amounts of taxable income resulting from such conversion shall be required to be reported on the Company’s applicable originally filed Internal Revenue Service Schedule K-1 unless Tax Distributions have been previously and unconditionally approved by the Board of Managers and by either the President’s Designee or a majority of the Independent Managers (as provided in Section 5.1(e)(ii)(B)) to cover taxes of the Members directly resulting from such conversion where such income is not reported on the Company’s applicable originally filed Schedule K-1. (c) In connection with the Section 2.8 Conversion, (i) each Member shall receive substantially identical powers, preferences, rights and obligations, and qualifications, limitations and restrictions thereof, in the corporate documentation and other legal agreements applicable to the Company following such conversion as such Member has under this Agreement and any associated agreements appropriately adapted to reflect the change from partnership to C corporation status of the Company for federal income tax purposes; (ii) each class of Equity Securities of the Company following such conversion shall have substantially identical powers, preferences, rights and obligations, and qualifications, limitations and restrictions thereof, and shall represent substantially identical proportional ownership of the Company, as the associated predecessor class of Equity Securities of the Company existing under this Agreement appropriately adapted to reflect the change from partnership to C corporation status of the Company for federal income tax purposes; (iii) all holders of the same class or type of Membership Interests shall receive the same form and proportionate share of Equity Securities in the Company following such conversion as all other holders of such class or type of Membership Interests to the extent consistent with clause (i); and (iv) the Company shall otherwise comply with the terms of Section 12.7. (d) The Company shall prepare all documentation applicable to it and required in connection with the Section 2.8 Conversion, including, to the extent appropriate, a certificate of conversion, a certificate of incorporation, bylaws, a stockholders agreement, a registration rights agreement and a stock option or other equity compensation plan, and each Member holding in excess of 5% of any class of Membership Interests (other than the Class E Preferred Membership Interests) shall be given a reasonable period of time to review and comment upon all such documents, and the Company shall give reasonable consideration to any such comments received by it. (e) In connection with the Section 2.8 Conversion, each Member shall take all necessary or desirable actions required or deemed advisable by the Board of Managers (or, if such conversion has been approved pursuant to Section 2.8(a)(ii) or Section 2.8(a)(iii) above, the Majority Holders) in connection with the consummation of such conversion, including entering into such agreements as are necessary to effectuate such conversion pursuant to the terms of this Section 2.8. In the event that the Board of Managers (or the Majority Holders, as applicable) so determines, each Member who pursuant to the terms of this Agreement or the Act has any right to vote upon or consent to such conversion and any related transactions shall be deemed to have so consented and voted in favor of such conversion and such related transactions. (f) Upon consummation of the Section 2.8 Conversion, proper provision shall be made such that those provisions of this Agreement necessary to administer the Company’s then outstanding accounting and tax matters (including Section 5.1(e)) shall remain in effect following the effectiveness of such conversion with respect to the period of time prior to the effectiveness of such conversion.

Company Conversion. (a) The Company shall convert into a Delaware corporation (such conversion pursuant to this Section 2.8, the “Section 2.8 Conversion”) under Section 18-216 of the Act or any other reasonable means determined by the Board of Managers upon the earliest to occur of the following (each, a “Triggering Event”): (i) at any time, upon the approval of the Board of Managers; and; (ii) at any time upon the approval of (A) the Super Majority Holders (including at least two Common Holders) and (B) a majority of the Independent Managers; (iii) at any time after December 31, 2010, if at such time Tax Distributions under Section 5.1(e)(ii)(A)(1) have not been approved (and are not reasonably expected to be approved based on prior Tax Distributions or otherwise) for 2011 by the Board of Managers and a majority of the Independent ManagersPresident’s Designee, upon the approval of the Super Majority Holders (including at least two Common Holders), provided that the Board of Managers and the Independent Manager President’s Designee approvals under this clause (iii) shall be deemed to have been granted even if each such approval is subject to (1) the Company having equity capital immediately following the payment of any such Tax Distributions in an amount at least equal to the Required Capital Amount and (2) the condition set forth in the parenthetical in Section 5.1(e)(ii)(C)(1); (iv) at any time after December 31, 2009, upon the request of the U.S. Department of the Treasury and with the approval of a majority of the Independent Managers, provided that Tax Distributions under Section 5.1(e)(ii)(A)(1) for the taxable period during which such Company Conversion occurs have been previously approved by a majority of the Independent Managers or the President’s Designee, as provided in Section 5.1(e)(ii)(B); and (v) if for any reason, the Company is or otherwise becomes treated as a “C” corporation for U.S. Federal income tax purposes; provided, however, that in connection with any conversion under the preceding clauses (i), (ii), (iii) or (iv), the Company shall have an amount of equity capital immediately following such conversion (as determined by the Board of Managers in good faith) equal to at least the Required Capital Amount and such conversion shall otherwise be in compliance with the BHC Act. (b) The Company shall cause the Section 2.8 Conversion to be consummated as promptly as reasonably practicable following occurrence of the Triggering Event and, in any event, no later than the end of the calendar quarter immediately following the calendar quarter in which the Triggering Event occurs. The Company shall use reasonable best efforts to effect such conversion and any related transactions in a fashion (i) that is tax free to all of the Members and indirect equityholders of the Company, including all of the Blocker Corps, and (ii) that results in the owners of the equity in each Blocker Corp, specifically established in connection with the Bank Holding Company Restructuring Transactions or the Blocker Corp BHC Restructuring Transactions whose sole business activity is owning (directly or indirectly) Interests in the Company, owning direct equity in the Company; provided, that it shall not be a condition to such conversion that the tax treatment described in the preceding clause (i) is obtained or that the result described in clause (ii) is obtained. In connection therewith, to the extent requested by any Blocker Corp, the Company shall merge with such Blocker Corp (with the Company surviving), if such merger is approved by the Board of Managers following receipt by the Company of sufficient assurances (in the reasonable discretion of the Board of Managers) that it will not (i) assume any liabilities of such Blocker Corp for which the Company will not be fully indemnified by a creditworthy entity or (ii) become subject to any obligations or restrictions of a material nature. The Company shall use reasonable best efforts to effect the conversion in a manner that all material amounts of taxable income resulting from such conversion shall be required to be reported on the Company’s applicable originally filed Internal Revenue Service Schedule K-1 unless Tax Distributions have been previously and unconditionally approved by the Board of Managers and by either the President’s Designee or a majority of the Independent Managers (as provided in Section 5.1(e)(ii)(B)) to cover taxes of the Members directly resulting from such conversion where such income is not reported on the Company’s applicable originally filed Schedule K-1. (c) In connection with the Section 2.8 Conversion, (i) each Member shall receive substantially identical powers, preferences, rights and obligations, and qualifications, limitations and restrictions thereof, in the corporate documentation and other legal agreements applicable to the Company following such conversion as such Member has under this Agreement and any associated agreements appropriately adapted to reflect the change from partnership to C corporation status of the Company for federal income tax purposes; (ii) each class of Equity Securities of the Company following such conversion shall have substantially identical powers, preferences, rights and obligations, and qualifications, limitations and restrictions thereof, and shall represent substantially identical proportional ownership of the Company, as the associated predecessor class of Equity Securities of the Company existing under this Agreement appropriately adapted to reflect the change from partnership to C corporation status of the Company for federal income tax purposes; (iii) all holders of the same class or type of Membership Interests shall receive the same form and proportionate share of Equity Securities in the Company following such conversion as all other holders of such class or type of Membership Interests to the extent consistent with clause (i); and (iv) the Company shall otherwise comply with the terms of Section 12.7. (d) The Company shall prepare all documentation applicable to it and required in connection with the Section 2.8 Conversion, including, to the extent appropriate, a certificate of conversion, a certificate of incorporation, bylaws, a stockholders agreement, a registration rights agreement and a stock option or other equity compensation plan, and each Member holding in excess of 5% of any class of Membership Interests (other than the Class E Preferred Membership Interests) shall be given a reasonable period of time to review and comment upon all such documents, and the Company shall give reasonable consideration to any such comments received by it. (e) In connection with the Section 2.8 Conversion, each Member shall take all necessary or desirable actions required or deemed advisable by the Board of Managers (or, if such conversion has been approved pursuant to Section 2.8(a)(ii) or Section 2.8(a)(iii) above, the Super Majority Holders) in connection with the consummation of such conversion, including entering into such agreements as are necessary to effectuate such conversion pursuant to the terms of this Section 2.8. In the event that the Board of Managers (or the Super Majority Holders, as applicable) so determines, each Member who pursuant to the terms of this Agreement or the Act has any right to vote upon or consent to such conversion and any related transactions shall be deemed to have so consented and voted in favor of such conversion and such related transactions. (f) Upon consummation of the Section 2.8 Conversion, proper provision shall be made such that those provisions of this Agreement necessary to administer the Company’s then outstanding accounting and tax matters (including Section 5.1(e)) shall remain in effect following the effectiveness of such conversion with respect to the period of time prior to the effectiveness of such conversion.