Common use of Dissenting Units Clause in Contracts

Dissenting Units. Notwithstanding any other provision of this Agreement of Merger or the Merger Agreement to the contrary, Company Interests issued and outstanding immediately prior to the Effective Time and held by a holder who is entitled to demand and properly demands purchase of such Company Interests for fair market value in accordance with Article 11 of the Act (any such Company Interest being referred to as “Dissenting Units” until such time as such holder fails to perfect or otherwise loses such holder’s dissenters’ rights under Article 11 of the Act with respect to such membership interests), will not be converted into or represent the right to receive cash in accordance with Section 5, but will be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Units pursuant to the Act (and at the Effective Time, such Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights set forth in Article 11 of the Act); provided, however, that if a holder of Dissenting Units has failed to perfect or otherwise withdraws or loses such holder’s right to dissent or becomes ineligible for such right to dissent then, such holder’s Dissenting Units will cease to be Dissenting Units (and the right of such holder to be paid the fair market value of such holder’s Dissenting Units under Article 11 of the Act) and will be treated as if they had been converted as of the Effective Time into the right to receive a cash payment, without any interest thereon, determined upon surrender of the certificate representing such membership interests (if any) in accordance with and subject to the provisions of Section 5 upon surrender of the certificate representing such membership interests in accordance with the terms of the Merger Agreement.

Dissenting Units. Notwithstanding any other provision If, in connection with the Merger, holders of this Agreement of Merger or the Merger Agreement to the contrary, Company Interests issued shall have demanded and outstanding immediately prior to the Effective Time and held by a holder who is entitled to demand and properly demands purchase of such Company Interests for fair market value perfected their appraisal rights in accordance with Section 17711.01 and Article 11 of the Act (any Act, none of such Company Interest being referred to as “Dissenting Units” until such time as such holder fails to perfect or otherwise loses such holder’s dissenters’ rights under Article 11 of the Act with respect to such membership interests), will not Units shall be converted into or represent the a right to receive cash the Merger Consideration otherwise payable to the holder of such Dissenting Units (as provided in accordance with Section 52.3(c), but will shall instead be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Units pursuant to the Act (and at the Effective Time, such Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights set forth in Article 11 of the Act); provided, however, that if a . Each holder of Dissenting Units has failed who, pursuant to perfect or otherwise withdraws or loses such holder’s right the provisions of the Act, becomes entitled to dissent or becomes ineligible for such right to dissent then, such holder’s Dissenting Units will cease to be Dissenting Units (and the right payment of such holder to be paid the fair market value of such holder’s shares shall receive payment therefor in accordance with the Act (but only after the value therefor shall have been agreed upon or finally determined pursuant to the Act). In the event that any Company Member fails to make an effective demand for payment or fails to perfect its appraisal as to its units of Company Interests or any Dissenting Units under Article 11 of the Act) and will shall otherwise lose their status as Dissenting Units, then any such units shall immediately be treated as if they had been converted as of the Effective Time into the right to receive a cash paymentthe consideration payable pursuant to Section 2.3(c) in respect of such shares as if such units had never been Dissenting Units, without any interest thereonand Parent shall deliver to the holder thereof, determined upon surrender at (or as promptly as reasonably practicable after) the applicable time or times specified in Section 2.8, following the satisfaction of the certificate representing Payment Condition, the Merger Consideration to which such membership interests Company Member would have been entitled under Section 2.3(c) with respect to such units. The Company shall give Parent (if anya) prompt written notice (and in accordance with and subject to no event more than two Business Days) of (i) any demand received by the provisions Company for appraisal of Section 5 upon surrender Company Interests or notice of the certificate representing such membership interests exercise of a Company Member’s appraisal rights in accordance with the terms Act, and (ii) the withdrawals of such demands and (b) the Merger Agreementopportunity to participate in all negotiations and proceedings with respect to demands for appraisal under the Act. The Company agrees that, except with Parent’s prior written consent, it shall not voluntarily make any payment or offer to make any payment with respect to, or settle or offer to settle, any such demand for appraisal or exercise of appraisal rights.

Dissenting Units. Notwithstanding any other provision of this Agreement of Merger or the Merger Agreement to the contrary, Company Interests including Section 2.08, Units issued and outstanding immediately prior to the Effective Time and held by a holder who is entitled has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal rights with respect to demand and properly demands purchase of such Company Interests for fair market value Units in accordance with Article 11 of the LLC Act (any such Company Interest Units being referred to collectively as the “Dissenting Units” until such time as such holder fails to perfect or otherwise loses such holder’s dissenters’ appraisal rights under Article 11 of the LLC Act with respect to such membership interests), will Units) shall not be converted into or represent the a right to receive cash in accordance with Section 5a portion of the Merger Consideration, but will instead shall be converted into entitled to only such rights as are granted by the right to receive such consideration as may be determined to be due with respect to such Dissenting Units pursuant to the Act (and at the Effective Time, such Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights set forth in Article 11 of the LLC Act); provided, however, that if a if, after the Effective Time, such holder of Dissenting Units has failed fails to perfect or otherwise perfect, withdraws or loses such holder’s right to dissent appraisal pursuant to the LLC Act or becomes ineligible for if a court of competent jurisdiction shall determine that such right holder is not entitled to dissent thenthe relief provided by the LLC Act, such holder’s Dissenting Units will cease to be Dissenting Units (and the right of such holder to be paid the fair market value of such holder’s Dissenting Units under Article 11 of the Act) and will shall be treated as if they had been converted as of the Effective Time into the right to receive a cash payment, without any interest thereon, determined upon surrender of the certificate representing such membership interests (if any) in accordance with and subject to the provisions of Section 5 upon surrender of the certificate representing such membership interests in accordance with the terms portion of the Merger AgreementConsideration, if any, to which such holder is entitled pursuant to Section 2.08(a), without interest thereon. The Company shall provide Parent prompt written notice of any demands received by the Company for appraisal of Units, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the LLC Act that relates to such demand, and Parent and the Company shall jointly participate in all negotiations and proceedings with respect to such demands. The Company shall provide Parent and Member Representative prompt written notice of any demands received by the Company for appraisal of Units, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company after the Effective Time pursuant to the LLC Act that relates to such demand, and Parent and Member Representative shall jointly participate in all negotiations and proceedings with respect to such demands. Neither Parent nor the Company (prior to the Effective Time) or Member Representative (after the Effective Time) shall, except with the prior written consent of the other, make any payment with respect to, or settle or offer to settle, any such demands.

Dissenting Units. Notwithstanding any other provision of anything in this Agreement of Merger or the Merger Agreement to the contrary, Company Interests Units issued and outstanding immediately prior to the Effective Time and that are held by a any holder who is entitled has the right to demand vote for the Merger and properly demands purchase of such Company Interests for fair market value shall not have voted in accordance with Article 11 favor of the Act (any such Company Interest being referred to as “Dissenting Units” until such time as such holder fails to perfect Merger, consented thereto in writing or otherwise loses such holder’s contractually waived their dissenters’ rights under Article 11 of the Act with respect to and who shall have properly demanded dissenters’ rights for such membership interests), will not be converted into or represent the right to receive cash units in accordance with Section 5, but will 14-11-1002 of the LLC Act (the “Dissenting Units”) shall not be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Units pursuant to the Act (and at their respective portion of Aggregate Merger Consideration. At the Effective Time, such holders of Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except thereto and instead shall only be entitled to the rights set forth in Article 11 provided under Section 14-11-1002 of the LLC Act); provided, however, that if a holder of . All Dissenting Units has held by Company Members who shall have failed to perfect or otherwise withdraws who shall have effectively withdrawn or loses lost their rights under such holder’s Section 14-11-1002 of the LLC Act shall thereupon be deemed to have been converted into and to have become exchangeable for the right to dissent or becomes ineligible for such right to dissent then, such holder’s Dissenting Units will cease to be Dissenting Units (and receive the right of such holder to be paid the fair market value of such holder’s Dissenting Units under Article 11 applicable portion of the ActAggregate Merger Consideration provided for in Section 2.5(a) (subject to the same rights, contributions and will be treated as if they had been converted obligations applicable to other Company Units of the same class and series that are not Dissenting Units), as of the Effective Time into the right to receive a cash paymentTime, without any interest thereon, determined upon surrender delivery of a Letter of Transmittal in the manner provided in Section 2.10. The Company shall (a) serve prompt written notice to Parent of any demands under such Section 14-11-1002 of the certificate representing LLC Act and attempted withdrawals of such membership interests notices or demands and (if anyb) give Parent the opportunity to participate in accordance and direct all negotiations, petitions and proceedings with and subject respect to such demands. Prior to the provisions Effective Time, the Company shall not, without the prior written consent of Section 5 upon surrender Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the certificate representing such membership interests in accordance with the terms of the Merger Agreementforegoing.

Dissenting Units. Notwithstanding any other provision provisions of this Agreement of Merger or the Merger Agreement to the contrary, Company Interests Units that are issued and outstanding immediately prior to the Effective Time and that are held by a holder Person who is entitled to demand and shall not have voted in favor of the Merger or consented thereto in writing or who shall have demanded properly demands purchase of in writing appraisal for such Company Interests for fair market value shares in accordance with Article 11 Section 18-210 of the Act Delaware Law (any such Company Interest being referred to as “Dissenting Units” until such time as such holder fails to perfect or otherwise loses such holder’s dissenters’ rights under Article 11 of the Act with respect to such membership interests), will ”) shall not be converted into or represent the right to receive cash any Merger Consideration. The holders of Dissenting Units (the “Dissenting Unitholders”) shall be entitled to receive payment from the Equityholders’ Representative of the appraised value of such Units held by them in accordance with the provisions of such Section 518-210 (the “Appraised Value”), but will except that all Dissenting Units held by a Person who shall have failed to perfect or who effectively shall have withdrawn or lost his, her or its rights to appraisal of such Units under such Section 18-210 shall thereupon be deemed to have been converted into the right and to receive such consideration have become exchangeable, as may be determined to be due with respect to such Dissenting Units pursuant to the Act (and at of the Effective Time, such Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights set forth in Article 11 of the Act); provided, however, that if a holder of Dissenting Units has failed to perfect or otherwise withdraws or loses such holder’s right to dissent or becomes ineligible for such right to dissent then, such holder’s Dissenting Units will cease to be Dissenting Units (and the right of such holder to be paid the fair market value of such holder’s Dissenting Units under Article 11 of the Act) and will be treated as if they had been converted as of the Effective Time into the right to receive a cash paymentreceive, without any interest thereon, determined upon surrender an applicable portion of the certificate representing such membership interests (if any) Dissenting Merger Consideration, computed in accordance with and subject to Schedule 2.03, which shall be paid by the provisions of Section 5 upon surrender Equityholders’ Representative. Neither the Company nor the Acquiror shall, except with the prior written consent of the certificate representing Equityholders’ Representative, which consent shall not be unreasonably withheld or delayed, voluntarily make any payment with respect to any demands for appraisal of Units, offer to settle any demands or approve any withdrawal of any such membership interests in accordance with the terms of the Merger Agreementdemands.

Dissenting Units. Notwithstanding any other provision of anything in this Agreement of Merger or the Merger Agreement to the contrary, Company Interests Common Units that are issued and outstanding immediately prior to the Effective Time and that are held by a holder who is entitled to demand and Members properly demands purchase of such Company Interests for fair market value in accordance with Article 11 of exercising dissenter’s rights available under the Dissenter’s Act (any such Company Interest being referred to as the “Dissenting Units” until such time as such holder fails to perfect or otherwise loses such holder’s dissenters’ rights under Article 11 of the Act with respect to such membership interests), will not be converted into or represent the right to receive cash in accordance with Section 5, but will ”) shall be converted into the right to receive such consideration as may be determined to be due payment from the Surviving Entity with respect thereto and shall not be converted into or be exchangeable for the right to receive cash or shares of Parent Common Stock unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their rights to appraisal under the Dissenter’s Act. Dissenting Units pursuant shall be treated in accordance with the Dissenter’s Act. If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such right to appraisal, such holder’s Company Common Units shall thereupon be converted into and become exchangeable only for the Act (and at right to receive, as of the Effective Time, such Dissenting Units shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto, except the rights set forth in Article 11 cash or shares of the Act); provided, however, that if a holder of Dissenting Units has failed to perfect or otherwise withdraws or loses such holder’s right to dissent or becomes ineligible for such right to dissent then, such holder’s Dissenting Units will cease to be Dissenting Units (and the right of such holder to be paid the fair market value of such holder’s Dissenting Units under Article 11 of the Act) and will be treated as if they had been converted as of the Effective Time into the right to receive a cash payment, without any interest thereon, determined upon surrender of the certificate representing such membership interests (if any) in accordance with and subject to the provisions of Section 5 upon surrender of the certificate representing such membership interests Parent Common Stock in accordance with the terms of this ARTICLE III. The Company shall give Parent: (i) prompt notice of any written demands for appraisal of any Company Common Units, any attempted withdrawals of such demands, and any other instruments served pursuant to the Merger AgreementDissenter’s Act and received by the Company relating to rights to be paid the “fair value” of Dissenting Units, as provided in the Dissenter’s Act; and (ii) the opportunity to participate in, and, after the Closing, direct, all negotiations and Actions with respect to demands for appraisal under the Dissenter’s Act. The Company shall not, except with the prior written consent of Parent, voluntarily make or agree to make any payment with respect to any demands for appraisal of Company Common Units. The Company or the Surviving Entity, as applicable under the Dissenter’s Act, shall comply with all notice requirements under the Dissenter’s Act.