Common use of The Conversion Clause in Contracts

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time and date as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”). References to the Company from and after the Conversion Effective Time shall mean Express. (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, and powers of the Company shall vest in Express, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of Express. (c) The Certificate of Incorporation and bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time of the filing of the Certificate of Conversion (and date the Certificate of Conversion will specify that the Conversion shall be effective immediately upon its filing) as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”), which Conversion Effective Time shall occur immediately following the effectiveness of the Registration Statement (i.e., within ninety minutes following the effectiveness of the Registration Statement and, in any event, no later than the sale to the underwriters of the Initial Public Offering of any securities registered under the Registration Statement). References to the Company from and after the Conversion Effective Time shall mean Express. (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, and powers of the Company shall vest in Express, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of Express. (c) The Certificate of Incorporation and bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.