THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT ARE TO BE
COMPLETED, THEN NEITHER THE PARENT NOR BUYER SHALL HAVE ANY OBLIGATION TO
PURCHASE THE BLOCKER INTEREST OWNED BY SUCH SELLING EQUITYHOLDER HEREUNDER OR
OTHERWISE, AND IN LIEU THEREOF, THE UNITS OWNED BY THE APPLICABLE BLOCKER ENTITY
OR INDIRECTLY BY THE SELLING EQUITYHOLDER SHALL BE ACQUIRED BY PARENT BY VIRTUE
OF THE MERGER PURSUANT TO THE TERMS OF THE MERGER AGREEMENT.
(B)
ON THE CLOSING DATE, EACH SELLING EQUITYHOLDER SHALL DELIVER,
OR CAUSE TO BE DELIVERED, TO PARENT CERTIFICATES REPRESENTING ALL OF THE BLOCKER
INTEREST BEING SOLD HEREUNDER, ACCOMPANIED BY A STOCK TRANSFER POWER DULY
ENDORSED IN BLANK RELATING TO SUCH CERTIFICATES.
1.3
REPRESENTATIVES.
THE SELLING EQUITYHOLDERS HEREBY ACKNOWLEDGE
AND AGREE THAT THE REPRESENTATIVES HAVE BEEN APPOINTED AS THE TRUE AND LAWFUL
AGENT AND ATTORNEY-IN-FACT OF SUCH SELLING EQUITYHOLDERS FOR ALL PURPOSES UNDER
SECTION 1.13 OF THE MERGER AGREEMENT (AND ONLY FOR SUCH PURPOSE AS EXPRESSLY
CONTEMPLATED BY THE MERGER AGREEMENT) AS IF SUCH SELLING EQUITYHOLDERS WERE
UNITHOLDERS THEREUNDER.
THE SELLING EQUITYHOLDERS ALSO ACKNOWLEDGE AND AGREE TO
ALL PROVISIONS OF SECTION 1.13 OF THE MERGER AGREEMENT AS EXPRESSLY SET FORTH
THEREIN, AS IF THE SELLING EQUITYHOLDERS WERE UNITHOLDERS THEREUNDER.
1.4
FURTHER ASSURANCES.
FROM AND AFTER THE CLOSING, THE PARTIES
SHALL DO SUCH ACTS AND EXECUTE SUCH DOCUMENTS AND INSTRUMENTS AS MAY BE
REASONABLY REQUIRED TO MAKE EFFECTIVE THE TRANSACTIONS CONTEMPLATED HEREBY.
1.5
CLASSIFICATION ELECTION.
NEITHER BLOCKER ENTITY NOR PARENT ON
BEHALF OF THE BLOCKER ENTITY SHALL TAKE OR PERMIT ANY OTHER PERSON TO TAKE ANY
ACTION UNDER APPLICABLE STATE LAW OR ANY OTHER STEPS FOR FEDERAL OR STATE TAX
PURPOSES THAT WOULD RESULT IN A CHANGE IN THE ENTITY CLASSIFICATION OF THE
BLOCKER ENTITY
FOR FEDERAL INCOME TAX PURPOSES WITH AN EFFECTIVE TIME PRIOR TO THE PURCHASE OF
THE BLOCKER ENTITY STOCK BY PARENT CONTEMPLATED BY THIS AGREEMENT; PROVIDED
HOWEVER, SUCH PROVISION SHALL NOT PRECLUDE ANY SUCH ACTIONS WITH AN EFFECTIVE
TIME AFTER THE PURCHASE OF THE BLOCKER ENTITY STOCK BY PARENT CONTEMPLATED BY
THIS AGREEMENT.
1.6
WITHHOLDING.
PARENT SHALL BE ENTITLED TO DEDUCT AND WITHHOLD
FROM EACH SELLING EQUITYHOLDER'S RESPECTIVE PORTION OF THE BLOCKER NET MERGER
CONSIDERATION OTHERWISE PAYABLE PURSUANT TO THIS AGREEMENT SUCH AMOUNTS AS
PARENT IS REQUIRED TO DEDUCT AND WITHHOLD WITH RESPECT TO THE MAKING OF SUCH
PAYMENT UNDER THE CODE, OR ANY PROVISION OF UNITED STATES FEDERAL, STATE OR
LOCAL, OR ANY FOREIGN, TAX LAW.
SUCH AMOUNTS SHALL BE TREATED FOR ALL PURPOSES
OF THIS AGREEMENT AS HAVING BEEN PAID TO THE APPLICABLE SELLING EQUITYHOLDERS IN
RESPECT OF WHICH PARENT MADE SUCH DEDUCTION AND WITHHOLDING.
SECTION 2.
REPRESENTATIONS AND WARRANTIES OF THE SELLING
EQUITYHOLDERS
Each Selling Equityholder severally, but not jointly, represents and warrants to
Parent on the date of this Agreement and on the Closing Date as follows:
2.1
ORGANIZATION, QUALIFICATION AND POWER; ENFORCEABILITY.
THE
BLOCKER ENTITY IS A CORPORATION OR LIMITED LIABILITY COMPANY, AS THE CASE MAY
BE, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS
STATE OF