Common use of Series E Units Clause in Contracts

Series E Units. (i) The Company may issue an aggregate of up to 7,032,967 Series E Units pursuant to Restricted Unit Agreements. The Series E Units may be vested (the “Vested Series E Units”) or unvested (the “Unvested Series E Units”). Unvested Series E Units shall vest or remain unvested in the manner and subject to the conditions set forth in the applicable Restricted Unit Agreement under which such Units were granted. The Company shall not issue Series E Units to any Person who has not executed and delivered to the Company the applicable Restricted Unit Agreement, together with one or more of the following agreements selected by the Board: (A) a non-competition and confidentiality agreement, substantially in the form attached hereto as Exhibit H, or in the form as otherwise approved by the Board, (B) a confidentiality, non-solicitation and non- disparagement agreement in the form approved by the Board, or (C) an employment agreement in the form approved by the Board. Notwithstanding anything to the contrary in this Agreement or the other Transaction Documents, in the event of a Change of Control, or upon the occurrence of a Liquidation Event, (x) the Compensation Committee, in its sole discretion, may allocate and cause the Company to issue all authorized but unissued Series E Units (not including any previously issued Series E Units that have been redeemed by or forfeited to the Company) and (y) all outstanding Series E Units shall automatically become Vested Series E Units. Furthermore, notwithstanding anything to the contrary in this Agreement or the other Transaction Documents, in the event of the death or disability of a Member, all outstanding Unvested Series E Units held by such Member shall automatically become Vested Series E Units. (ii) The Series E Units are intended to constitute “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43 (or the corresponding requirements of any subsequent guidance promulgated by the IRS or other applicable law). Accordingly, the capital account associated with each Series E Unit at the time of its issuance shall be equal to zero dollars ($0.00). The Company and the holders of Series E Units shall file all federal income tax returns consistent with such characterization. (iii) Of the aggregate authorized number of Series E Units, a number of Series E Units shall be designated by the Board as “Series E-1 Units”. The Company may from time to time designate and issue additional series of Series E Units (up to the number of authorized but unissued Series E Units), each of which shall be designated by a sequential number (e.g. Series E-2, Series E-3, etc.). The Board shall designate a “Designated Value” applicable to the Series E-1 Units and to each such additional series of Series E Units to the extent necessary to cause such Units to constitute “profits interests” as provided in Section 3.2(h)(ii), but not less than $13.75 (taking into account the adjustments to Book Value contemplated in clause (ii) of subparagraph (b) of the definition thereof). The Designated Value for each such additional series of Series E Units shall equal not less than the sum of $13.75 plus the amount that would, in the reasonable determination of the Board, be distributed with respect to each Series A-1 Preferred Unit if, immediately prior to the issuance of such additional series, the assets of the Company were sold for their fair market value and the proceeds (net of any liabilities of the Company) were distributed pursuant to Section 6.1(c).

Series E Units. (i) The Company may issue an aggregate of up to 7,032,967 Series E Units pursuant to Restricted Unit Agreements. The Series E Units may be vested (the “Vested Series E Units”) or unvested (the “Unvested Series E Units”). Unvested Series E Units shall vest or remain unvested in the manner and subject to the conditions set forth in the applicable Restricted Unit Agreement under which such Units were granted. The Company shall not issue Series E Units to any Person who has not executed and delivered to the Company the applicable Restricted Unit Agreement, together with one or more of the following agreements selected by the Board: (Ai) a non-competition and confidentiality agreement, substantially in the form attached hereto as Exhibit H, or in the form as otherwise approved by the Board, (Bii) a confidentiality, non-solicitation and non- disparagement agreement in the form approved by the Board, or (Ciii) an employment agreement in the form approved by the Board. Notwithstanding anything to the contrary in this Agreement or the other Transaction Documents, in the event of a Change of Control, or upon the occurrence of a Liquidation Event, (xA) the Compensation Committee, in its sole discretion, may allocate and cause the Company to issue all authorized but unissued Series E Units (not including any previously issued Series E Units that have been redeemed by or forfeited to the Company) and (yB) all outstanding Series E Units shall automatically become Vested Series E Units. Furthermore, notwithstanding anything to the contrary in this Agreement or the other Transaction Documents, in the event of the death or disability of a Member, all outstanding Unvested Series E Units held by such Member shall automatically become Vested Series E Units. (ii) The Series E Units are intended to constitute “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43 (or the corresponding requirements of any subsequent guidance promulgated by the IRS or other applicable law). Accordingly, the capital account associated with each Series E Unit at the time of its issuance shall be equal to zero dollars ($0.00). The Company and the holders of Series E Units shall file all federal income tax returns consistent with such characterization. (iii) Of the aggregate authorized number of Series E Units, a number of Series E Units shall be designated by the Board as “Series E-1 E-l Units”. The Company may from time to time designate and issue additional series of Series E Units (up to the number of authorized but unissued Series E Units), each of which shall be designated by a sequential number (e.g. Series E-2, Series E-3, etc.). The Board shall designate a “Designated Value” applicable to the Series E-1 E-l Units and to each such additional series of Series E Units to the extent necessary to cause such Units to constitute “profits interests” as provided in Section 3.2(h)(ii)3.2(g)(ii) above, but not less than $13.75 (taking into account the adjustments to Book Value contemplated in clause (ii) of subparagraph (b) of the definition thereof). The Designated Value for each such additional series of Series E Units shall equal not less than the sum of $13.75 plus the amount that would, in the reasonable determination of the Board, be distributed with respect to each Series A-1 A-l Preferred Unit if, immediately prior to the issuance of such additional series, the assets of the Company were sold for their fair market value and the proceeds (net of any liabilities of the Company) were distributed pursuant to Section 6.1(c).