Permissible Exchanges. (i) From and after the First Anniversary, a Non-Executive Member may elect to Exchange up to thirty three and one-third percent (331/3%) of its vested Remaining Units by delivering, at least 45 days in advance of the Closing of such Exchange, a written notice to DPA (an “Exchange Request”). From and after the Second Anniversary, a Non-Executive Member may elect to Exchange up to, but not exceeding, sixty-six and two-third percent (662/3%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering and Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Non-Executive Member’s vested Remaining Units may be Exchanged at the election of such Non-Executive Member following the Third Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of any such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of the relevant Exchange and shall set forth the number of New Class A Units such Non-Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Non-Executive Member shall be required to continue to beneficially own, for so long as such Non-Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty percent (20%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA. (ii) From and after the First Anniversary, an Executive Member may elect to Exchange up to twenty percent (20%) of its vested Remaining Units by delivering an Exchange Request to DPA. From and after the Second Anniversary, an Executive Member may elect to Exchange up to, but not exceeding, forty percent (40%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. From and after the Third Anniversary, an Executive Member may elect to Exchange up to, but not exceeding sixty percent (60%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged before the Third Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Executive Member’s vested Remaining Units may be Exchanged at the election of such Executive Member from the Fourth Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of such Exchange and shall set forth the number of New Class A Units such Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Executive Member shall be required to continue to beneficially own, for so long as such Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty-five percent (25%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA. (iii) Notwithstanding the foregoing, no Non-Executive Member or Executive Member may make any Exchange prior to the occurrence of the earlier of (a) the completion of two underwritten registered public offerings of the Class A Shares other than the IPO and (b) the Second Anniversary, except (i) Exchanges of New Class A Units in connection with the IPO and (ii) Exchanges of New Class A Units to be sold pursuant to such registered public offerings in accordance with Sections 2.1(a)(i) and (ii) above. (iv) Upon delivery of one or more Exchange Requests, the Vestar Members, Xxxxxx Members and Non-Employee Members may elect to Exchange up to one hundred percent (100%) of their respective Remaining Units for Class A Shares following the Initial Lockup Period (as defined herein) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of such Exchange and shall set forth the number of New Class A Units such Vestar Member, Xxxxxx Member or Non-Employee Member, as the case may be, wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing. In the event that any Exchange Request is made in connection with a contemplated underwritten offering of Class A Shares and such underwritten offering includes any option being granted to the underwriters or any other person to acquire an additional number of Class A Shares in connection with such offering, then (i) each Exchange Request related to Class A Units to be exchanged for Class A Shares that will be included in such underwritten offering shall also specify the maximum number of additional Class A Units that the holder desires to have exchanged only in the event that such option is exercised (it being understood that (x) the party exercising such option may have the right to do so in part, in which case the additional Class A Units exchanged in connection with such offering will be limited to the amount necessary to fulfill the delivery obligation with respect to the Class A Shares that are actually to be acquired upon exercise of such option, and (y) the allocation of Class A Shares to be acquired pursuant to an exercise of any such option among the persons participating in such offering may not be known at the time of the delivery of the original Exchange Request, in which case the maximum number of additional Class A Units to potentially be exchanged will be communicated to the Company pursuant to a supplemental Exchange Request delivered promptly following the time at which such determination is made) and (ii) the Closing of the exchange of any additional Class A Units to fulfill a unitholder’s delivery obligation with respect to the Class A Shares that are to be acquired upon exercise of any such option will occur immediately prior to the time that delivery of the Class A Shares is to be made.. Upon delivery to DPA, no Exchange Request may be revoked; provided, first, that, notwithstanding any other provision to the contrary contained herein, any Member that has delivered an Exchange Request pursuant to Section 2.1(a) shall be entitled either (x) to revoke such Exchange Request at any time prior to the Closing of the applicable Exchange or (y) to delay the Closing of the requested Exchange pursuant to this Section 2.1(a)(iv), in each case, after the occurrence of one or more of the following events: (A) the registration statement pursuant to which the Class A Shares were to be registered by such Member at or immediately following the Closing shall have ceased to be effective pursuant to any action or inaction by the Commission; (B) the Corporation shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement; (C) the Corporation shall have imposed restrictions on the ability of such Member to effect a registration of Class A Shares at or immediately following the Closing; (D) the Corporation shall have exercised its right to defer, delay or suspend the filing or effectiveness of a registration statement (whether pursuant to Section 2.1(d) or 2.2(d) of the Registration Rights Agreement or otherwise), and such deferral, delay or suspension shall affect the ability of such Member to register its Class A Shares at or immediately following the Closing; (E) the Corporation, any of its Affiliates or any third party shall have disclosed to such Member any material non-public information, the receipt of which results in such Member being prohibited from registering Class A Shares at or immediately following the Closing; (F) any stop order shall have been issued by the Commission; (G) the Closing, or the closing of the registered offering or the effectiveness of any registration shall have been delayed due to any facts, circumstances or Persons, which facts, circumstances or persons, as applicable, were not controlled or influenced by the Members seeking to delay such Closing or revoke such Exchange Request in order to provide such Member with a basis for such delay or revocation outside the control or influence, direct or indirect, of such Member; (H) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which the Class A Shares are then traded; (I) there shall be in effect an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Exchange of New Class A Units for Class A Shares, the transfer of Class B Shares for cancellation or the registration or sale of any Class A Shares pursuant to a registration statement; and (J) the Corporation shall have failed to comply in all material respects with its obligations under the Registration Rights Agreement, and such failure shall have affected the ability of such Member to consummate the registration or sale of Class A Shares in a manner not expressly contemplated in clauses (A) through (I) above; provided; second, that in no event shall the Member who is seeking to delay such Closing or revoke such Exchange Request and relying on any of the matters contemplated in clauses (A) through (J) above have controlled or influenced any facts, circumstances or Persons in connection therewith and in order to provide such Member with a basis for such delay or revocation or been caused or influenced, either directly or indirectly, by such Member; provided, third, that if any Member that has delivered an Exchange Request pursuant to Section 2.1(a) revokes such Exchange Request for any reason other than set forth in the first proviso to this Section 2(a)(iv) or is found to have engaged in conduct described in the second proviso to this Section 2.1(a)(iv), then such Member shall not be entitled to participate in any Exchange for a period of two Fiscal Quarters following the date of such revocation. (v) To the extent a Member holds vested and unvested New Class A Units, all such Member’s vested New Class A Units must be Exchanged before any unvested New Class A Units may be Exchanged by such Member. The Member shall represent in the Exchange Request that such Member owns New Class A Units and Class B Shares to be delivered at the applicable Closing pursuant to Section 2.1(d)(i), free and clear of all Liens, except as set forth therein, and, if there are any Liens identified in the Exchange Request, such Member shall covenant that such Member will deliver at the applicable Closing evidence reasonably satisfactory to DPA, that all such Liens have been released. The Closing of any Exchange initiated pursuant to this Section 2.1(a) shall occur on the applicable Closing Date. During the 180-day period following the IPO and as extended below (the “Initial Lock-Up Period”), the provisions of this Section 2.1(a) may be modified only with the prior written approval of each of Xxxxxxx, Sachs & Co. and UBS Securities LLC; provided, however, that if (1) during the last 17 days of the Initial Lock-Up Period, the Corporation releases earnings results or announces material news or a material event or (2) prior to the expiration of the Initial Lock-Up Period, the Corporation announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in each case the Initial Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless Xxxxxxx, Xxxxx & Co. and UBS Securities LLC waive, in writing, such extension; the Corporation will provide Xxxxxxx, Sachs & Co. and UBS Securities LLC and each Member subject to the Initial Lock-Up Period with prior notice of any such announcement that gives rise to an extension of the Initial Lock-up Period and each Member agrees that any such notice properly delivered will be deemed to have been given to, and received by, such Member. Each Member further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Section 2(a)(v) during the period from the date of this Agreement to and including the 34th day following the expiration of the Initial Lock-Up Period, such Member will give notice thereof to the Corporation and will not consummate such transaction or take any such action unless it has received written confirmation from the Corporation that the Initial Lock-Up Period has expired. During the Initial Lock-Up Period, none of the Corporation, DPA, its subsidiaries or any Member shall, without the prior written consent of Xxxxxxx, Xxxxx & Co. and UBS Securities LLC, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Class A Shares of the Corporation, or any options or warrants to purchase any shares of Class A Shares of the Corporation, or any securities convertible into, exchangeable for or that represent the right (whether exercisable against the Corporation or against DPA) to receive shares of Class A Shares of the Corporation, including any membership interests in DPA, or any such substantially similar securities, whether now owned or hereinafter acquired, owned directly by such Member (including holding as a custodian) or with respect to which such Member has beneficial ownership within the rules and regulations of the Commission; provided, however, that, for the purposes of Section 2(a)(iv), the Corporation may issue securities pursuant to any employee benefit plan existing on the date of the prospectus for the IPO which may (by their express provisions or pursuant to any exchange offer) be or become exercisable, convertible or exchangeable for Class A Shares. The foregoing restriction is expressly agreed to preclude such Member from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Member’s Class A Shares even if such Class A Shares would be disposed of by someone other than such Member. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of such Member’s Class A Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Member’s Class A Shares. Notwithstanding any other provision herein to the contrary, the provisions of Section 2.1(a)(i) – (iv) may be modified only with the prior written approval of the independent directors of the Corporation. The provisions of Section 2.1(a)(v) may be modified only with the prior written approval of Xxxxxxx, Xxxxx & Co., UBS Securities LLC and the independent directors of the Corporation.
Appears in 2 contracts
Samples: Exchange Agreement (Duff & Phelps Corp), Exchange Agreement (Duff & Phelps Corp)
Permissible Exchanges. (i) From and after the First Anniversary, a Non-Executive Member may elect to Exchange up to thirty three and one-third percent (331/3%) of its vested Remaining Units by delivering, at least 45 days in advance of the Closing of such Exchange, a written notice to DPA (an “Exchange Request”). From and after the Second Anniversary, a Non-Executive Member may elect to Exchange up to, but not exceeding, sixty-six and two-third percent (662/3%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering and Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Non-Executive Member’s vested Remaining Units may be Exchanged at the election of such Non-Executive Member following the Third Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of any such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of the relevant Exchange and shall set forth the number of New Class A Units such Non-Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Non-Executive Member shall be required to continue to beneficially own, for so long as such Non-Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty percent (20%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA.
(ii) From and after the First Anniversary, an Executive Member may elect to Exchange up to twenty percent (20%) of its vested Remaining Units by delivering an Exchange Request to DPA. From and after the Second Anniversary, an Executive Member may elect to Exchange up to, but not exceeding, forty percent (40%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. From and after the Third Anniversary, an Executive Member may elect to Exchange up to, but not exceeding sixty percent (60%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged before the Third Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Executive Member’s vested Remaining Units may be Exchanged at the election of such Executive Member from the Fourth Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of such Exchange and shall set forth the number of New Class A Units such Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Executive Member shall be required to continue to beneficially own, for so long as such Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty-five percent (25%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA.
(iii) Notwithstanding the foregoing, no Non-Executive Member or Executive Member may make any Exchange prior to the occurrence of the earlier of (a) the completion of two underwritten registered public offerings of the Class A Shares other than the IPO and (b) the Second Anniversary, except (i) Exchanges of New Class A Units in connection with the IPO and (ii) Exchanges of New Class A Units to be sold pursuant to such registered public offerings in accordance with Sections 2.1(a)(i) and (ii) above.
(iv) Upon delivery of one or more Exchange Requests, the Vestar Members, Xxxxxx Lxxxxx Members and Non-Employee Members may elect to Exchange up to one hundred percent (100%) of their respective Remaining Units for Class A Shares following the Initial Lockup Period (as defined herein) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of such Exchange and shall set forth the number of New Class A Units such Vestar Member, Xxxxxx Lxxxxx Member or Non-Employee Member, as the case may be, wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing. In the event that any Exchange Request is made in connection with a contemplated underwritten offering of Class A Shares and such underwritten offering includes any option being granted to the underwriters or any other person to acquire an additional number of Class A Shares in connection with such offering, then (i) each Exchange Request related to Class A Units to be exchanged for Class A Shares that will be included in such underwritten offering shall also specify the maximum number of additional Class A Units that the holder desires to have exchanged only in the event that such option is exercised (it being understood that (x) the party exercising such option may have the right to do so in part, in which case the additional Class A Units exchanged in connection with such offering will be limited to the amount necessary to fulfill the delivery obligation with respect to the Class A Shares that are actually to be acquired upon exercise of such option, and (y) the allocation of Class A Shares to be acquired pursuant to an exercise of any such option among the persons participating in such offering may not be known at the time of the delivery of the original Exchange Request, in which case the maximum number of additional Class A Units to potentially be exchanged will be communicated to the Company pursuant to a supplemental Exchange Request delivered promptly following the time at which such determination is made) and (ii) the Closing of the exchange of any additional Class A Units to fulfill a unitholder’s delivery obligation with respect to the Class A Shares that are to be acquired upon exercise of any such option will occur immediately prior to the time that delivery of the Class A Shares is to be made.. Upon delivery to DPA, no Exchange Request may be revoked; provided, first, that, notwithstanding any other provision to the contrary contained herein, any Member that has delivered an Exchange Request pursuant to Section 2.1(a) shall be entitled either (x) to revoke such Exchange Request at any time prior to the Closing of the applicable Exchange or (y) to delay the Closing of the requested Exchange pursuant to this Section 2.1(a)(iv), in each case, after the occurrence of one or more of the following events: (A) the registration statement pursuant to which the Class A Shares were to be registered by such Member at or immediately following the Closing shall have ceased to be effective pursuant to any action or inaction by the Commission; (B) the Corporation shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement; (C) the Corporation shall have imposed restrictions on the ability of such Member to effect a registration of Class A Shares at or immediately following the Closing; (D) the Corporation shall have exercised its right to defer, delay or suspend the filing or effectiveness of a registration statement (whether pursuant to Section 2.1(d) or 2.2(d) of the Registration Rights Agreement or otherwise), and such deferral, delay or suspension shall affect the ability of such Member to register its Class A Shares at or immediately following the Closing; (E) the Corporation, any of its Affiliates or any third party shall have disclosed to such Member any material non-public information, the receipt of which results in such Member being prohibited from registering Class A Shares at or immediately following the Closing; (F) any stop order shall have been issued by the Commission; (G) the Closing, or the closing of the registered offering or the effectiveness of any registration shall have been delayed due to any facts, circumstances or Persons, which facts, circumstances or persons, as applicable, were not controlled or influenced by the Members seeking to delay such Closing or revoke such Exchange Request in order to provide such Member with a basis for such delay or revocation outside the control or influence, direct or indirect, of such Member; (H) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which the Class A Shares are then traded; (I) there shall be in effect an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Exchange of New Class A Units for Class A Shares, the transfer of Class B Shares for cancellation or the registration or sale of any Class A Shares pursuant to a registration statement; and (J) the Corporation shall have failed to comply in all material respects with its obligations under the Registration Rights Agreement, and such failure shall have affected the ability of such Member to consummate the registration or sale of Class A Shares in a manner not expressly contemplated in clauses (A) through (I) above; provided; second, that in no event shall the Member who is seeking to delay such Closing or revoke such Exchange Request and relying on any of the matters contemplated in clauses (A) through (J) above have controlled or influenced any facts, circumstances or Persons in connection therewith and in order to provide such Member with a basis for such delay or revocation or been caused or influenced, either directly or indirectly, by such Member; provided, third, that if any Member that has delivered an Exchange Request pursuant to Section 2.1(a) revokes such Exchange Request for any reason other than set forth in the first proviso to this Section 2(a)(iv) or is found to have engaged in conduct described in the second proviso to this Section 2.1(a)(iv), then such Member shall not be entitled to participate in any Exchange for a period of two Fiscal Quarters following the date of such revocation.
(v) To the extent a Member holds vested and unvested New Class A Units, all such Member’s vested New Class A Units must be Exchanged before any unvested New Class A Units may be Exchanged by such Member. The Member shall represent in the Exchange Request that such Member owns New Class A Units and Class B Shares to be delivered at the applicable Closing pursuant to Section 2.1(d)(i), free and clear of all Liens, except as set forth therein, and, if there are any Liens identified in the Exchange Request, such Member shall covenant that such Member will deliver at the applicable Closing evidence reasonably satisfactory to DPA, that all such Liens have been released. The Closing of any Exchange initiated pursuant to this Section 2.1(a) shall occur on the applicable Closing Date. During the 180-day period following the IPO and as extended below (the “Initial Lock-Up Period”), the provisions of this Section 2.1(a) may be modified only with the prior written approval of each of XxxxxxxGxxxxxx, Sachs & Co. and UBS Securities LLC; provided, however, that if (1) during the last 17 days of the Initial Lock-Up Period, the Corporation releases earnings results or announces material news or a material event or (2) prior to the expiration of the Initial Lock-Up Period, the Corporation announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in each case the Initial Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co. and UBS Securities LLC waive, in writing, such extension; the Corporation will provide XxxxxxxGxxxxxx, Sachs & Co. and UBS Securities LLC and each Member subject to the Initial Lock-Up Period with prior notice of any such announcement that gives rise to an extension of the Initial Lock-up Period and each Member agrees that any such notice properly delivered will be deemed to have been given to, and received by, such Member. Each Member further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Section 2(a)(v) during the period from the date of this Agreement to and including the 34th day following the expiration of the Initial Lock-Up Period, such Member will give notice thereof to the Corporation and will not consummate such transaction or take any such action unless it has received written confirmation from the Corporation that the Initial Lock-Up Period has expired. During the Initial Lock-Up Period, none of the Corporation, DPA, its subsidiaries or any Member shall, without the prior written consent of XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co. and UBS Securities LLC, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Class A Shares of the Corporation, or any options or warrants to purchase any shares of Class A Shares of the Corporation, or any securities convertible into, exchangeable for or that represent the right (whether exercisable against the Corporation or against DPA) to receive shares of Class A Shares of the Corporation, including any membership interests in DPA, or any such substantially similar securities, whether now owned or hereinafter acquired, owned directly by such Member (including holding as a custodian) or with respect to which such Member has beneficial ownership within the rules and regulations of the Commission; provided, however, that, for the purposes of Section 2(a)(iv), the Corporation may issue securities pursuant to any employee benefit plan existing on the date of the prospectus for the IPO which may (by their express provisions or pursuant to any exchange offer) be or become exercisable, convertible or exchangeable for Class A Shares. The foregoing restriction is expressly agreed to preclude such Member from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Member’s Class A Shares even if such Class A Shares would be disposed of by someone other than such Member. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of such Member’s Class A Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Member’s Class A Shares. Notwithstanding any other provision herein to the contrary, the provisions of Section 2.1(a)(i) – — (iv) may be modified only with the prior written approval of the independent directors of the Corporation. The provisions of Section 2.1(a)(v) may be modified only with the prior written approval of XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co., UBS Securities LLC and the independent directors of the Corporation.
Appears in 1 contract
Permissible Exchanges. (i) From and after the First Anniversary, a Non-Executive Member may elect to Exchange up to thirty three and one-third percent (331/3%) of its vested Remaining Units by delivering, at least 45 days in advance of the Closing of such Exchange, a written notice to DPA (an “Exchange Request”). From and after the Second Anniversary, a Non-Executive Member may elect to Exchange up to, but not exceeding, sixty-six and two-third percent (662/3%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering and Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Non-Executive Member’s vested Remaining Units may be Exchanged at the election of such Non-Executive Member following the Third Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of any such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of the relevant Exchange and shall set forth the number of New Class A Units such Non-Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Non-Executive Member shall be required to continue to beneficially own, for so long as such Non-Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty percent (20%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA.
(ii) From and after the First Anniversary, an Executive Member may elect to Exchange up to twenty percent (20%) of its vested Remaining Units by delivering an Exchange Request to DPA. From and after the Second Anniversary, an Executive Member may elect to Exchange up to, but not exceeding, forty percent (40%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged after the First Anniversary and before the Second Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. From and after the Third Anniversary, an Executive Member may elect to Exchange up to, but not exceeding sixty percent (60%) of its vested Remaining Units (less its vested Remaining Units that were Exchanged before the Third Anniversary) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Subject to the limitations as set forth below, one hundred percent (100%) of any such Executive Member’s vested Remaining Units may be Exchanged at the election of such Executive Member from the Fourth Anniversary by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of such Exchange and shall set forth the number of New Class A Units such Executive Member wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing, subject to the limitations specified in this Section 2.1(a). Notwithstanding the foregoing, each Executive Member shall be required to continue to beneficially own, for so long as such Executive Member remains employed by DPA, such number of New Class A Units, Class A Shares, or a combination thereof, equal to at least twenty-five percent (25%) of its Remaining Units. Any Exchange Requests submitted in violation of such maintenance requirement will be summarily disregarded, and DPA shall have no obligation to effectuate a Closing of any such Exchange relating to the entire amount of Remaining Units included on such Exchange Request. Subject to the exceptions set forth in Section 2.1(a)(iv), Exchange Requests may not be revoked after delivery to DPA.
(iii) Notwithstanding the foregoing, no Non-Executive Member or Executive Member may make any Exchange prior to the occurrence of the earlier of (a) the completion of two underwritten registered public offerings of the Class A Shares other than the IPO and (b) the Second Anniversary, except (i) Exchanges of New Class A Units in connection with the IPO and (ii) Exchanges of New Class A Units to be sold pursuant to such registered public offerings in accordance with Sections 2.1(a)(i) and (ii) above.
(iv) Upon delivery of one or more Exchange Requests, the Vestar Members, Xxxxxx Lxxxxx Members and Non-Employee Members may elect to Exchange up to one hundred percent (100%) of their respective Remaining Units for Class A Shares following the Initial Lockup Period (as defined herein) by delivering an Exchange Request at least 45 days in advance of the Closing of such Exchange. Each Exchange Request shall be delivered at least 45 days in advance of the Closing of such Exchange and shall set forth the number of New Class A Units such Vestar Member, Xxxxxx Lxxxxx Member or Non-Employee Member, as the case may be, wishes to Exchange for Class A Shares at the Closing and the number of Class B Shares to be delivered for cancellation at the Closing. In the event that any Exchange Request is made in connection with a contemplated underwritten offering of Class A Shares and such underwritten offering includes any option being granted to the underwriters or any other person to acquire an additional number of Class A Shares in connection with such offering, then (i) each Exchange Request related to Class A Units to be exchanged for Class A Shares that will be included in such underwritten offering shall also specify the maximum number of additional Class A Units that the holder desires to have exchanged only in the event that such option is exercised (it being understood that (x) the party exercising such option may have the right to do so in part, in which case the additional Class A Units exchanged in connection with such offering will be limited to the amount necessary to fulfill the delivery obligation with respect to the Class A Shares that are actually to be acquired upon exercise of such option, and (y) the allocation of Class A Shares to be acquired pursuant to an exercise of any such option among the persons participating in such offering may not be known at the time of the delivery of the original Exchange Request, in which case the maximum number of additional Class A Units to potentially be exchanged will be communicated to the Company pursuant to a supplemental Exchange Request delivered promptly following the time at which such determination is made) and (ii) the Closing of the exchange of any additional Class A Units to fulfill a unitholder’s delivery obligation with respect to the Class A Shares that are to be acquired upon exercise of any such option will occur immediately prior to the time that delivery of the Class A Shares is to be made.. Upon delivery to DPA, no Exchange Request may be revoked; provided, first, that, notwithstanding any other provision to the contrary contained herein, any Member that has delivered an Exchange Request pursuant to Section 2.1(a) shall be entitled either (x) to revoke such Exchange Request at any time prior to the Closing of the applicable Exchange or (y) to delay the Closing of the requested Exchange pursuant to this Section 2.1(a)(iv), in each case, after the occurrence of one or more of the following events: (A) the registration statement pursuant to which the Class A Shares were to be registered by such Member at or immediately following the Closing shall have ceased to be effective pursuant to any action or inaction by the Commission; (B) the Corporation shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement; (C) the Corporation shall have imposed restrictions on the ability of such Member to effect a registration of Class A Shares at or immediately following the Closing; (D) the Corporation shall have exercised its right to defer, delay or suspend the filing or effectiveness of a registration statement (whether pursuant to Section 2.1(d) or 2.2(d) of the Registration Rights Agreement or otherwise), and such deferral, delay or suspension shall affect the ability of such Member to register its Class A Shares at or immediately following the Closing; (E) the Corporation, any of its Affiliates or any third party shall have disclosed to such Member any material non-public information, the receipt of which results in such Member being prohibited from registering Class A Shares at or immediately following the Closing; (F) any stop order shall have been issued by the Commission; (G) the Closing, or the closing of the registered offering or the effectiveness of any registration shall have been delayed due to any facts, circumstances or Persons, which facts, circumstances or persons, as applicable, were not controlled or influenced by the Members seeking to delay such Closing or revoke such Exchange Request in order to provide such Member with a basis for such delay or revocation outside the control or influence, direct or indirect, of such Member; (H) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which the Class A Shares are then traded; (I) there shall be in effect an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Exchange of New Class A Units for Class A Shares, the transfer of Class B Shares for cancellation or the registration or sale of any Class A Shares pursuant to a registration statement; and (J) the Corporation shall have failed to comply in all material respects with its obligations under the Registration Rights Agreement, and such failure shall have affected the ability of such Member to consummate the registration or sale of Class A Shares in a manner not expressly contemplated in clauses (A) through (I) above; provided; second, that in no event shall the Member who is seeking to delay such Closing or revoke such Exchange Request and relying on any of the matters contemplated in clauses (A) through (J) above have controlled or influenced any facts, circumstances or Persons in connection therewith and in order to provide such Member with a basis for such delay or revocation or been caused or influenced, either directly or indirectly, by such Member; provided, third, that if any Member that has delivered an Exchange Request pursuant to Section 2.1(a) revokes such Exchange Request for any reason other than set forth in the first proviso to this Section 2(a)(iv) or is found to have engaged in conduct described in the second proviso to this Section 2.1(a)(iv), then such Member shall not be entitled to participate in any Exchange for a period of two Fiscal Quarters following the date of such revocation.
(v) To the extent a Member holds vested and unvested New Class A Units, all such Member’s vested New Class A Units must be Exchanged before any unvested New Class A Units may be Exchanged by such Member. The Member shall represent in the Exchange Request that such Member owns New Class A Units and Class B Shares to be delivered at the applicable Closing pursuant to Section 2.1(d)(i), free and clear of all Liens, except as set forth therein, and, if there are any Liens identified in the Exchange Request, such Member shall covenant that such Member will deliver at the applicable Closing evidence reasonably satisfactory to DPA, that all such Liens have been released. The Closing of any Exchange initiated pursuant to this Section 2.1(a) shall occur on the applicable Closing Date. During the 180-day period following the IPO and as extended below (the “Initial Lock-Up Period”), the provisions of this Section 2.1(a) may be modified only with the prior written approval of each of XxxxxxxGxxxxxx, Sachs & Co. and UBS Securities LLC; provided, however, that if (1) during the last 17 days of the Initial Lock-Up Period, the Corporation releases earnings results or announces material news or a material event or (2) prior to the expiration of the Initial Lock-Up Period, the Corporation announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in each case the Initial Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co. and UBS Securities LLC waive, in writing, such extension; the Corporation will provide XxxxxxxGxxxxxx, Sachs & Co. and UBS Securities LLC and each Member subject to the Initial Lock-Up Period with prior notice of any such announcement that gives rise to an extension of the Initial Lock-up Period and each Member agrees that any such notice properly delivered will be deemed to have been given to, and received by, such Member. Each Member further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Section 2(a)(v) during the period from the date of this Agreement to and including the 34th day following the expiration of the Initial Lock-Up Period, such Member will give notice thereof to the Corporation and will not consummate such transaction or take any such action unless it has received written confirmation from the Corporation that the Initial Lock-Up Period has expired. During the Initial Lock-Up Period, none of the Corporation, DPA, its subsidiaries or any Member shall, without the prior written consent of XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co. and UBS Securities LLC, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Class A Shares of the Corporation, or any options or warrants to purchase any shares of Class A Shares of the Corporation, or any securities convertible into, exchangeable for or that represent the right (whether exercisable against the Corporation or against DPA) to receive shares of Class A Shares of the Corporation, including any membership interests in DPA, or any such substantially similar securities, whether now owned or hereinafter acquired, owned directly by such Member (including holding as a custodian) or with respect to which such Member has beneficial ownership within the rules and regulations of the Commission; provided, however, that, for the purposes of Section 2(a)(iv), the Corporation may issue securities pursuant to any employee benefit plan existing on the date of the prospectus for the IPO which may (by their express provisions or pursuant to any exchange offer) be or become exercisable, convertible or exchangeable for Class A Shares. The foregoing restriction is expressly agreed to preclude such Member from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Member’s Class A Shares even if such Class A Shares would be disposed of by someone other than such Member. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of such Member’s Class A Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Member’s Class A Shares. Notwithstanding any other provision herein to the contrary, the provisions of Section 2.1(a)(i) – (iv) may be modified only with the prior written approval of the independent directors of the Corporation. The provisions of Section 2.1(a)(v) may be modified only with the prior written approval of XxxxxxxGxxxxxx, Xxxxx Sxxxx & Co., UBS Securities LLC and the independent directors of the Corporation.
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