Common use of Incentive Units Clause in Contracts

Incentive Units. (a) The Company may issue Class B Common Units to existing or new employees, officers, directors, other service providers or consultants of the Company or its Subsidiaries (each, a “Management Unitholder”) pursuant to written agreements approved by the Board (each such agreement, regardless of its actual title, as amended, modified and waived from time to time in accordance with its terms, is referred to herein as an “Incentive Unit Grant Agreement”). The Company may make the Class B Common Units and any issuance thereof and any Incentive Unit Grant Agreement subject to the terms and conditions of any equity or unit incentive plan, as the same may be amended or modified from time to time in accordance with its terms, as may have been adopted by the Company or its Subsidiaries on or before the date of such issuance or Incentive Unit Grant Agreement. On the date of each grant of Class B Common Units to a Management Unitholder who is, or as a result of such grant becomes, a holder of Class B Common Units pursuant to a grant made under an Incentive Unit Grant Agreement or similar agreement, the Board shall establish an initial “Participation Threshold” amount with respect to each Class B Common Unit granted on such date. Unless otherwise determined by the Board, the Participation Threshold with respect to a Class B Common Unit shall be equal to or greater than the Liquidation Value of a Class A Common Unit on the date of grant of such Class B Common Unit. The Board may designate a series number for each subset of Class B Common Units consisting of Class B Common Units having the same Participation Threshold, which Participation Threshold differs from the Participation Thresholds of all Class B Common Units not included in such subset. If the Board elects to so designate Class B Common Units, then the first Class B Common Unit issued on or after the date hereof shall be designated a “Series 1 Class B Common Unit.” Each Class B Common Unit’s Participation Threshold shall be adjusted after the grant of such Class B Common Unit in the following manner: (i) In the event of any Distribution pursuant to Section 4.1(a)(iii), the Participation Threshold of each Class B Common Unit outstanding at the time of such Distribution shall be reduced (but not below zero) by the amount that each Class A Common Unit receives in such Distribution (with such reduction occurring immediately after the determination of the portion of such Distribution, if any, that such Class B Common Unit is entitled to receive). For this purpose, Distributions shall include Tax Distributions made pursuant to Section 4.1(b) only (i) to the extent such Tax Distributions are made as a result of the recognition of the built-in gain in any asset that existed at the time the relevant Class B Common Unit was issued or (ii) to the extent that the relevant Class B Common Unit is not also entitled to a Tax Distribution with respect to the item or tier of taxable income giving rise to the Tax Distribution. For this purpose, the Tax Distribution that arises from the recognition of the built-in gain in an asset may be bifurcated between the Tax Distribution that relates to the built-in gain that existed at the time the relevant Class B Common Unit was issued and the Tax Distribution that relates to any additional gain in the asset that accrued since the time the relevant Class B Common Unit was issued. In order to preserve the economic results intended by this Agreement, the Board may, in its reasonable discretion, determine whether any Tax Distribution or portion of any Tax Distribution should reduce the Participation Threshold of a Class B Common Unit. (ii) In the event of any Capital Contribution with respect to outstanding Class A Common Units that occurs after the issuance of a series of Class B Common Units, the Participation Threshold of each Class B Common Unit outstanding at the time of such Capital Contribution shall be increased by the amount contributed with respect to each Class A Common Unit. (iii) If the Company at any time subdivides (by any Unit split or otherwise) the Class A Common Units into a greater number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such subdivision shall be proportionately reduced, and if the Company at any time combines (by reverse Unit split or otherwise) the Class A Common Units into a smaller number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such combination shall be proportionately increased. (iv) No adjustment shall be made in connection with (A) any redemption or repurchase by the Company or any Unitholder of any Units or any forfeiture by any Unitholder of any Units or (B) any Capital Contribution by any Unitholder in exchange for newly issued Units. (b) The Participation Thresholds of each Unitholder’s Class B Common Units shall be set forth on the Unit Ownership Ledger, and Unit Ownership Ledger shall be amended from time to time by the Company as necessary to reflect any adjustments to the Participation Thresholds of outstanding Class B Common Units required pursuant to this Section 3.5. (c) Notwithstanding anything in this Section 3.5 to the contrary, the Board shall have the power to amend the provisions of this Section 3.5 and Section 4.1(a) to achieve the economic results intended by this Agreement, including that (A) each Class A Common Unit has identical entitlement to distributions under Section 4.1(a) and (B) the Class B Common Units are profits interests when issued for United States federal income tax purposes.

Incentive Units. (a) The Company may issue Class B Common D Incentive Units are intended to existing or new employees, officers, directors, other provide incentives to certain key employees and service providers or consultants of the Company or its Subsidiaries Company, the Common Members and their respective Affiliates (eachas the case may be, a the “Management UnitholderEmployer”) who are employed by or providing services to the Company, whether pursuant to written agreements approved by the Board DSA or other similar arrangement or directly (each such agreementindividual, regardless of its actual title, as amended, modified and waived from time to time in accordance with its terms, is referred to herein as an the “Incentive Unit Grant AgreementUltimate Employee”). The Company may make Board acting with Special Approval shall have the authority to issue, on behalf of the Company, Class D Incentive Units in accordance with this Section 3.11 and with Section 5.7(xxiv).. In addition, so long as any Class B Preferred Units remain outstanding, the Class B Representative (or, if no Class B Preferred Units remain outstanding, the non-conflicted Member(s) holding a majority of the Common Units held by all non-conflicted Member(s)) shall be entitled to cause the Company to award unissued Class D Incentive Units to any replacement for a Dedicated Employee (as defined in the DSA) in connection with and subject to the employment of such replacement by Nuvve without the requirement of the approval by the Board or any issuance thereof and any other Person. The number of authorized Class D Incentive Unit Grant Agreement Units may be increased by the Company with approval of the Board acting with Special Approval. All Class D Incentive Units issued by the Company shall be issued subject to the terms of this Agreement and conditions the Ultimate Employee’s individual Award Agreement and shall have the rights, preferences, limitations, obligations and liabilities provided herein and therein. If (i) any letter agreement or any Employment Agreement conflicts in any way with the terms of this Agreement or the applicable Award Agreement, the terms of this Agreement, and the applicable Award Agreement will govern, and (ii) the applicable Award Agreement conflicts with this Agreement, this Agreement will govern. Any Class D Incentive Units authorized but not yet issued and any equity Class D Incentive Units issued and subsequently reacquired by the Company (by forfeiture or unit incentive plan, as the same may be amended or modified from time to time repurchase) shall remain available for future issuances in accordance with the terms of this Agreement. The Company shall maintain in its terms, as may have been adopted by books and records a true and complete list of the Company or its Subsidiaries on or before the date of such issuance or Class D Incentive Unit Grant Agreement. On Members, the date number of Class D Incentive Units of each grant of series held by such Class B Common Units to a Management Unitholder who is, or as a result of such grant becomes, a holder of Class B Common Units pursuant to a grant made under an D Incentive Unit Grant Agreement or similar agreementMember, the Board shall establish an initial “Participation Threshold” amount with respect Award Date thereof and the Threshold Value applicable to each Class B Common Unit granted on such date. Unless otherwise determined by the Board, the Participation Threshold with respect to a Class B Common Unit shall be equal to or greater than the Liquidation Value of a Class A Common Unit on the date of grant of such Class B Common UnitD Incentive Units. The Board may designate a series number for each subset For confidentiality purposes, such list shall not be furnished to any Class D Incentive Unit Member or any other Person without the prior approval of Class B Common Units consisting of Class B Common Units having the same Participation Threshold, which Participation Threshold differs from the Participation Thresholds of all Class B Common Units not included in such subset. If the Board elects to so designate acting with Special Approval. Class B Common Units, then the first Class B Common Unit issued on or after the date hereof shall be designated a “Series 1 Class B Common Unit.” Each Class B Common Unit’s Participation Threshold shall be adjusted after the grant of such Class B Common Unit in the following manner: (i) In the event of any Distribution pursuant to Section 4.1(a)(iii), the Participation Threshold of each Class B Common Unit outstanding at the time of such Distribution shall be reduced (but not below zero) by the amount that each Class A Common Unit receives in such Distribution (with such reduction occurring immediately after the determination of the portion of such Distribution, if any, that such Class B Common Unit is entitled to receive). For this purpose, Distributions shall include Tax Distributions made pursuant to Section 4.1(b) only (i) to the extent such Tax Distributions are made as a result of the recognition of the built-in gain in any asset that existed at the time the relevant Class B Common Unit was issued or (ii) to the extent that the relevant Class B Common Unit is not also entitled to a Tax Distribution with respect to the item or tier of taxable income giving rise to the Tax Distribution. For this purpose, the Tax Distribution that arises from the recognition of the built-in gain in an asset D Incentive Units may be bifurcated between the Tax Distribution that relates to the built-in gain that existed at the time the relevant Vested Class B Common Unit was issued and the Tax Distribution that relates to any additional gain in the asset that accrued since the time the relevant Class B Common Unit was issued. In order to preserve the economic results intended by this Agreement, the Board may, in its reasonable discretion, determine whether any Tax Distribution or portion of any Tax Distribution should reduce the Participation Threshold of a Class B Common Unit. (ii) In the event of any Capital Contribution with respect to outstanding Class A Common Units that occurs after the issuance of a series of Class B Common Units, the Participation Threshold of each Class B Common Unit outstanding at the time of such Capital Contribution shall be increased by the amount contributed with respect to each Class A Common Unit. (iii) If the Company at any time subdivides (by any Unit split or otherwise) the Class A Common Units into a greater number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such subdivision shall be proportionately reduced, and if the Company at any time combines (by reverse Unit split or otherwise) the Class A Common Units into a smaller number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such combination shall be proportionately increased. (iv) No adjustment shall be made in connection with (A) any redemption or repurchase by the Company or any Unitholder of any D Incentive Units or Unvested Class D Incentive Units and shall have no voting rights or other rights to consent or approve any forfeiture by any Unitholder of any Units action or (B) any Capital Contribution by any Unitholder matter, except as expressly set forth in exchange for newly issued UnitsSection 12.4. (b) The Participation Thresholds of each Unitholder’s Any authorized but unissued Class B Common D Incentive Units shall may be set forth on the Unit Ownership Ledgerissued, and the Persons to whom such unissued Class D Incentive Units are issued may be admitted as additional Class D Incentive Unit Ownership Ledger Members, only after each such additional Class D Incentive Unit Member executes (or in the case of clause (iii) below, causes such Class D Incentive Unit Member’s spouse, if applicable, to execute) and delivers (i) a joinder or counterpart to this Agreement in form and substance reasonably acceptable to the Board pursuant to which such Transferee shall agree to be amended from time to time bound by the Company as necessary to reflect any adjustments to provisions of this Agreement, (ii) an Award Agreement, (iii) a spousal agreement in the Participation Thresholds form of outstanding Class B Common Units Exhibit D if required pursuant to this Section 3.53.12(a) and (iv) any other agreements and instruments as determined by the Board acting with Special Approval, in each case, in form and substance as the Board acting with Special Approval may deem necessary or desirable to effect such admission. (c) Notwithstanding anything The Class D Incentive Units are intended to constitute “profits interests” within the meaning of Revenue Procedures 93-27 and 2001-43, unless the Board acting with Special Approval determines otherwise with respect to particular Class D Incentive Unit (such Unit, a “Profits Interest”), and this Agreement shall be interpreted accordingly. Additionally, in accordance with Revenue Procedure 2001-43, 2001-2 C.B. 191, the Company shall treat a Member holding a Class D Incentive Unit (or subsequently issued Class D Incentive Unit intended to be treated as a Profits Interest) as the owner of such Profits Interest from the date it is granted. The Company shall file the Company’s IRS Form 1065, and issue appropriate Schedule K-1s to such Member, allocating to such Member such Member’s distributive share of all items of income, gain, loss, deduction and credit associated with such Profits Interest as if such Class D Incentive Unit were fully vested. Each holder of Class D Incentive Units (i) consents to receive any Schedule K-1s from the Company electronically via electronic mail, the internet or another electronic reporting medium in lieu of paper copies, and (ii) agrees to confirm this consent electronically at a future date in a manner set forth by the Board at such time. Each Class D Incentive Unit Member holding Class D Incentive Units intended to constitute Profits Interests shall take into account such distributive share in computing such Class D Incentive Unit Member’s federal income tax liability for the entire period during which such Class D Incentive Unit Member holds the Profits Interest. The undertakings contained in this Section 3.5 to the contrary, the Board 3.11(c) shall have the power to amend the provisions be construed in accordance with Section 4 of this Section 3.5 and Section 4.1(a) to achieve the economic results intended by this Agreement, including that (A) each Class A Common Unit has identical entitlement to distributions under Section 4.1(a) and (B) the Class B Common Units are profits interests when issued for United States federal income tax purposes.Rev. Proc. 2001-

Incentive Units. (a) The Subject to Section 3.03 and upon the terms and conditions set forth in any applicable Award Agreements or employment agreements with any member of the Management Company Group, the Company may issue Class B Common Units to existing Service Providers; provided that (i) Class B Common Units shall only be issued to a Person that is an employee of or new employees, officers, directors, other service providers or consultants performs services for a member of the Management Company or its Subsidiaries Group, with any such issuance to be consistent with the terms of the Incentive Plan and any Award Agreement to such Person; (eachii) Class B Common Units shall be issued by the Company only in conjunction with a corresponding issuance of Class B Common Units in J.S. Held Holdings, a LLC (“Management UnitholderJ.S. Held Holdings”) to the Company; and (iii) the number of Class B Common Units outstanding shall be reduced, from time to time, as the Managing Member determines appropriate in good faith to reflect any reduction in the number of Class B Common Units held by any Member, including as a result of forfeiture or repurchase pursuant to written the terms of this Agreement, the Incentive Plan, any Award Agreement or otherwise. Class B Common Units that have been forfeited or repurchased may be re-issued at any time. (b) Subject to Section 3.04 and upon the terms and conditions set forth in any applicable Award Agreements or employment agreements approved by the Board Managing Member, the Company may issue a profit interest series of Class C Common Units to Service Providers (each a “P Series” of Class C Common Units, to be consecutively designated as “Series P-1,” “Series P-2,” etc.) provided that (i) P Series of Class C Common Units shall only be issued to a Person that is an employee of or performs services for a member of the Management Company Group, with any such agreementissuance to be consistent with the terms of the Incentive Plan and any Award Agreement to such Person; (ii) P Series of Class C Common Units shall be issued by the Company only in conjunction with a corresponding issuance of P Series of Class C Common Units in J.S Held Holdings to the Company; and (iii) the number of P Series of Class C Common Units outstanding shall be reduced, regardless of its actual titlefrom time to time, as amendedthe Managing Member determines appropriate in good faith to reflect and reduction in the number of P Series of Class C Common Units held by any Member, modified including as a result of forfeiture or repurchase pursuant to the terms of this Agreement, the Incentive Plan, any Award Agreement or otherwise. P Series of Class C Common Units that have been forfeited or repurchased may be re-issued at any time. (c) The Managing Member is hereby authorized and waived directed to adopt a written plan pursuant to which all such Incentive Units shall be granted in compliance with Rule 701 of the Securities Act or another applicable exemption (such plan as in effect from time to time, the “Incentive Plan”). In connection with the adoption of the Incentive Plan and issuance of Incentive Units, the Managing Member is hereby authorized to negotiate and enter into award agreements with each Service Provider to whom it grants Incentive Units (such agreements, “Award Agreements”). Each Award Agreement shall include such terms, conditions, rights and obligations as may be determined by the Managing Member, in its sole discretion, consistent with the terms herein. (d) The Managing Member may cause the Company from time to time to repurchase from any Member all or any Incentive Units for which repurchase rights are triggered pursuant to Section 10.04 of this Agreement, the Incentive Plan or related Award Agreements, at a purchase price stipulated herein and therein. Any Incentive Units so repurchased shall automatically be fully redeemed and no longer outstanding. (e) It is acknowledged and agreed by the Company and each Member that (i) the Incentive Units are intended to represent an indirect interest in accordance the Incentive Units of J.S. Held Holdings issued to the Company in conjunction with its termsthe corresponding issuance of such Incentive Units (such Units, is referred to herein as an the “Incentive Unit Grant AgreementUnderlying Units”). The Company may make ; and (ii) unless otherwise determined by the Managing Member, it is intended that the rights, preferences, conditions, obligations and limitations on the Class B Common Units and any issuance thereof and any Incentive Unit Grant Class C Common Units issued under this Agreement subject are intended to correspond to the terms equivalent rights, preferences, conditions, obligations and conditions limitations of any equity or unit incentive plan, as the same may be amended or modified from time to time in accordance with its terms, as may have been adopted by Underlying Units (provided that the foregoing shall not prevent the Company or its Subsidiaries on or before the date of such issuance or Incentive Unit Grant Managing Member from exercising any rights under this Agreement. On the date of each grant of Class B Common Units to a Management Unitholder who is, or as a result of such grant becomes, a holder of Class B Common Units pursuant to a grant including using distributions made under an Incentive Unit Grant Agreement or similar agreement, the Board shall establish an initial “Participation Threshold” amount with respect to each Class B Common Unit granted on such datethe Underlying Units to make any payments, or establish any reserves, permitted to be made or established under this Agreement). Unless otherwise determined All determinations regarding the application of this Section 3.05(e) shall be made by the BoardManaging Member in its sole discretion, the Participation Threshold with respect to a Class B Common Unit which determinations shall be equal final and conclusive as to all Members. (f) The Managing Member shall have the power and discretion to approve which Managers, Officers, employees, consultants, independent contractors, advisors or greater than other service providers of the Liquidation Value of Management Company Group (each, a Class A Common Unit on “Service Provider”) shall be offered and issued Incentive Units and shall establish such vesting criteria for the date of Incentive Units as it determines in its discretion and shall include such vesting criteria in the Incentive Plan and/or the applicable Award Agreement for any grant of such Class B Common UnitIncentive Units. The Board may designate a series number for each subset of Class B Common Units consisting of Class B Common Units having the same Participation Threshold, which Participation Threshold differs from the Participation Thresholds of all Class B Common Units not included As used in such subset. If the Board elects to so designate Class B Common Units, then the first Class B Common Unit issued on or after the date hereof shall be designated a “Series 1 Class B Common Unit.” Each Class B Common Unit’s Participation Threshold shall be adjusted after the grant of such Class B Common Unit in the following mannerthis Agreement: (i) In the event of any Distribution Incentive Units that have not vested pursuant to the terms of the Incentive Plan and any associated Award Agreement are referred to as “Restricted Incentive Units”; and (ii) any Incentive Units that have vested pursuant to the terms of the Incentive Plan and any associated Award Agreement are referred to as “Unrestricted Incentive Units.” (g) Immediately prior to each issuance of each P Series of Class C Common Units following the initial issuance described in the second sentence of Section 4.1(a)(iii3.05(c), the Participation Threshold Managing Member shall determine in good faith the P Series Liquidation Value. In each Award Agreement that the Company enters into with a Service Provider for the issuance of each new P Series of Class C Common Units, the Managing Member shall include an appropriate Profits Interest Hurdle for such Incentive Units on the basis the P Series Liquidation Value (or a multiple thereof) immediately prior to the issuance of such Incentive Units as determined by the Managing Member. (h) The Company and each Member hereby acknowledge and agree that all P Series of Class C Common Units constitute a “profits interest” in the Company within the meaning of Rev. Proc. 93-27 (a “Profits Interest”), and that any and all P Series of Class C Common Units received by Service Providers are received in exchange for the provision of services by the Service Provider to or for the benefit of the Management Company Group in a Service Provider capacity or in anticipation of becoming a Service Provider. The Company and each Service Provider which receives P Series of Class C Common Units hereby agree to comply with the provisions of Rev. Proc. 2001-43, and neither the Company nor any Service Provider who receives any P Series of Class C Common Units shall perform any act or take any position inconsistent with the application of Rev. Proc. 2001-43 or any future Internal Revenue Service guidance or other Governmental Authority that supplements or supersedes the foregoing Revenue Procedures. (i) Incentive Units granted to a Service Provider shall receive the following tax treatment: (i) the Company and each Service Provider who receives Incentive Units shall treat such Service Provider as the owner of such Incentive Units from the date of their receipt, and the Service Provider receiving such Incentive Units shall take into account his or her Distributive share of Net Income, Net Loss, income, gain, loss and deduction associated with the Incentive Units in computing such Service Provider’s income tax liability for the entire period during which such Service Provider holds Incentive Units; (ii) each Service Provider that receives Class B Common Unit outstanding at the time Units may, and each Service Provider that receives P Series of such Distribution Class C Common Units shall be reduced (but not below zeroobligated to, make a timely and effective election under Code Section 83(b) with respect to such Incentive Units received by such Service Provider, and shall promptly provide a copy of any such election which is made to the Company. Except as otherwise determined by the amount that each Class A Common Unit receives in such Distribution Managing Member, both the Company and all Members shall (with such reduction occurring immediately after the determination of the portion of such Distribution, if any, that A) treat such Class B Common Unit is entitled to receive). For this purpose, Distributions shall include Tax Distributions Units (if a Code Section 83(b) election has been made pursuant to Section 4.1(b) only (i) to the extent such Tax Distributions are made as a result of the recognition of the built-in gain in any asset that existed at the time the relevant Class B Common Unit was issued or (ii) to the extent that the relevant Class B Common Unit is not also entitled to a Tax Distribution with respect to the item thereto or tier of taxable income giving rise to the Tax Distribution. For this purpose, the Tax Distribution that arises from the recognition of the built-in gain in an asset may be bifurcated between the Tax Distribution that relates to the built-in gain that existed at the time the relevant Class B Common Unit was issued and the Tax Distribution that relates to any additional gain in the asset that accrued since the time the relevant Class B Common Unit was issued. In order to preserve the economic results intended by this Agreement, the Board may, in its reasonable discretion, determine whether any Tax Distribution or portion of any Tax Distribution should reduce the Participation Threshold of a Class B Common Unit. (ii) In the event of any Capital Contribution with respect to outstanding Class A Common Units that occurs after the issuance of a series of Class B Common Units, the Participation Threshold of each Class B Common Unit outstanding at the time of such Capital Contribution shall be increased by the amount contributed with respect to each Class A Common Unit. (iii) If the Company at any time subdivides (by any Unit split or otherwise) the Class A Common Units into a greater number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such subdivision shall be proportionately reduced, and if the Company at any time combines (by reverse Unit split or otherwise) the Class A Common Units into a smaller number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such combination shall be proportionately increased. (iv) No adjustment shall be made in connection with (A) any redemption or repurchase by the Company or any Unitholder of any Units or any forfeiture by any Unitholder of any Units or (B) any Capital Contribution by any Unitholder in exchange for newly issued Units. (b) The Participation Thresholds of each Unitholder’s Class B Common Units shall be set forth on the Unit Ownership Ledger, and Unit Ownership Ledger shall be amended from time to time by the Company as necessary to reflect any adjustments to the Participation Thresholds of outstanding Class B Common Units required pursuant to this Section 3.5. (c) Notwithstanding anything in this Section 3.5 to the contrary, the Board shall have the power to amend the provisions of this Section 3.5 and Section 4.1(a) to achieve the economic results intended by this Agreement, including that (A) each Class A Common Unit has identical entitlement to distributions under Section 4.1(a) and (B) the Class B Common Units are profits interests when issued vested) and such P Series Class C Common Units (whether or not vested) as outstanding for United States federal income tax purposes., (B) treat such Service Provider as a partner for tax purposes with respect to such Class B Common Units (if a Code Section 83(b) election has been made with respect thereto or such Class B Common Units are vested) and such P Series Class C Common Units (whether or not vested) and

Incentive Units. (a) The As consideration for the contribution of the Class C Interests in the Company may issue to TopCo in connection with the Restructuring, each CO Indirect Holder contributing such Class B Common C Interests received one TopCo Incentive Interest in exchange for each such Class C Interest in the Company so contributed. Each TopCo Incentive Interest is deemed to “correspond to” one Incentive Unit. From time to time after the Effective Date, the Board shall have the power and discretion to approve the issuance of Incentive Units to existing any manager, employee, officer or new consultant of the Company or its Subsidiaries (each such person, a “Management Member”). In addition, from time to time after the Effective Date, the Board shall have the power and discretion to cause IncentiveCo to issue IncentiveCo Incentive Units to any Management Member, and if the Board so determines to cause IncentiveCo to issue IncentiveCo Incentive Units to any Management Member, contemporaneously with such issuance, the Company shall issue a corresponding number of Incentive Units to IncentiveCo. The Board shall have power and discretion to approve which managers, employees, officersofficers or consultants of the Company shall be offered and issued such Incentive Units or IncentiveCo Incentive Units, directorsthe number of Incentive Units or IncentiveCo Incentive Units to be offered and issued to each Management Member and the purchase price, if any, and other service providers terms and conditions with respect thereto. (b) The provisions of this Section 3.8 are designed to provide incentives to managers, employees, officers or consultants of the Company or its Subsidiaries (eachSubsidiaries. This Section 3.8, together with the other terms of this Agreement and the Incentive Agreements relating to Incentive Units, IncentiveCo Incentive Units or TopCo Incentive Interests, are intended to be a “Management Unitholder”) pursuant to written agreements approved by compensatory benefit plan within the Board (each such agreementmeaning of Rule 701 of the Securities Act, regardless and, unless and until the Company’s Equity Securities are publicly traded, the issuance of its actual titleIncentive Units are, as amended, modified and waived from time to time in accordance with its terms, is referred to herein as an “Incentive Unit Grant Agreement”). The Company may make the Class B Common Units and any issuance thereof and any Incentive Unit Grant Agreement subject to the terms extent permitted by applicable federal and conditions state securities laws, intended to qualify for the exemption from registration under Rule 701 of any equity or unit incentive plan, as the same may be amended or modified from time to time in accordance with its terms, as may have been adopted by the Company or its Subsidiaries on or before the date of such issuance or Incentive Unit Grant Agreement. Securities Act and applicable state registration requirements. (c) On the date of each grant of Class B Common Incentive Units to a Management Unitholder who is, Member or as a result of such grant becomes, a holder of Class B Common Units pursuant to a grant made under an Incentive Unit Grant Agreement or similar agreementIncentiveCo, the Board shall will establish (and document in the applicable Incentive Agreement) an initial “Participation Threshold” amount with respect to each Class B Common such Incentive Unit granted on such date. Unless otherwise determined The Participation Threshold with respect to each Incentive Unit will be at least equal to the amount a Class CO Unit would receive on the date of issuance of such Incentive Unit in a hypothetical liquidation of the Company on the date of issuance of such Incentive Unit in which the Company sold its assets for their Fair Market Value, satisfied its liabilities (excluding any non-recourse liabilities to the extent the balance of such liabilities exceeds the fair market value of the assets that secure them) and distributed the net proceeds to the holders of Units in liquidation of the Company; provided, however, that the Participation Threshold for each Incentive Unit held by TopCo as of immediately following the BoardClosing Recapitalization is as set forth on the Schedule of Members. Notwithstanding the Participation Threshold set forth in any Incentive Agreement, the Participation Threshold with respect to a Class B Common Unit outstanding Incentive Units shall automatically (and without any further action of the parties) be equitably increased to take into account any capital contribution made to the Company after the issuance of such outstanding Incentive Units. The determination by the Board of each Participation Threshold shall be equal final, conclusive and binding on all Members. Each Incentive Unit, IncentiveCo Incentive Unit and each TopCo Incentive Interest is intended to be a “profits interest” within the meaning of IRS Revenue Procedures 93-27 and 2001-43 and is issued with the intention that under current interpretations of the Code the recipient will not realize income upon the issuance of such Incentive Unit, IncentiveCo Incentive Unit or TopCo Incentive Interest, and that neither the Company nor any Member is entitled to any deduction either immediately or through depreciation or amortization as a result of the issuance of such Incentive Unit. This Section 3.8 shall be interpreted consistently with such intent. (d) The Participation Threshold for each Incentive Unit with a Participation Threshold greater than the Liquidation Value of a Class A Common Unit on the date of grant of such Class B Common Unit. The Board may designate a series number for each subset of Class B Common Units consisting of Class B Common Units having the same Participation Threshold, which Participation Threshold differs from the Participation Thresholds of all Class B Common Units not included in such subset. If the Board elects to so designate Class B Common Units, then the first Class B Common Unit issued on or after the date hereof shall be designated a “Series 1 Class B Common Unit.” Each Class B Common Unit’s Participation Threshold zero shall be adjusted after the grant of such Class B Common Incentive Unit in the following manneras follows: (i) In the event of any Distribution pursuant to Section 4.1(a)(iii4.1(a) or Section 12.2(d), the Participation Threshold of each Class B Common Incentive Unit outstanding at the time of such Distribution shall be reduced (but not below zero) by the amount distributable to the holder of a single Class CO Unit in connection with such Distribution (determined pursuant to Section 4.1(a) and Section 12.2(d) and taking into account all Incentive Units that each Class A Common Unit receives are entitled to participate in such Distribution (with such reduction occurring immediately after the determination by reason of the portion last paragraph of such Distribution, if any, that such Class B Common Unit is entitled to receiveSection 4.1(a). For this purpose, Distributions shall include Tax Distributions made pursuant to Section 4.1(b) only (i) to the extent such Tax Distributions are made as a result of the recognition of the built-in gain in any asset that existed at the time the relevant Class B Common Unit was issued or (ii) to the extent that the relevant Class B Common Unit is not also entitled to a Tax Distribution with respect to the item or tier of taxable income giving rise to the Tax Distribution. For this purpose, the Tax Distribution that arises from the recognition of the built-in gain in an asset may be bifurcated between the Tax Distribution that relates to the built-in gain that existed at the time the relevant Class B Common Unit was issued and the Tax Distribution that relates to any additional gain in the asset that accrued since the time the relevant Class B Common Unit was issued. In order to preserve the economic results intended by this Agreement, the Board may, in its reasonable discretion, determine whether any Tax Distribution or portion of any Tax Distribution should reduce the Participation Threshold of a Class B Common Unit.); and (ii) In If following the event of any Capital Contribution with respect to outstanding Class A Common Units that occurs after the issuance of a series of Class B Common UnitsClosing Recapitalization, the Participation Threshold of each Class B Common Unit outstanding at the time of such Capital Contribution shall be increased by the amount contributed with respect to each Class A Common Unit. (iii) If the Company at any time subdivides (by any Unit split split, Unit dividend or otherwise) the Class A Common its outstanding Units into a greater number of Units, the Participation Threshold of each Class B Common Incentive Unit outstanding in effect immediately prior to such subdivision shall be proportionately reduced, and if the Company at any time combines (by reverse Unit split or otherwise) the Class A Common its outstanding Units into a smaller number of Units, the Participation Threshold of each Class B Common Incentive Unit outstanding in effect immediately prior to such combination shall be proportionately increased. (ive) No adjustment In connection with any approved issuance after the Effective Date of Incentive Units to a Management Member hereunder, such Management Member shall execute a counterpart to this Agreement (or a joinder to this Agreement in a form acceptable to the Company), accepting and agreeing to be made bound by all terms and conditions hereof, and shall enter into such other documents and instruments to effect such purchase (including, without limitation, an Incentive Agreement) as are required by the Board. In connection with any approved issuance after the Effective Date of IncentiveCo Incentive Units to a Management Member hereunder, IncentiveCo shall cause such Management Member to execute a counterpart to this Agreement (or a joinder to this Agreement in a form acceptable to the Company), accepting and agreeing to be bound by all terms and conditions hereof as a CO Indirect Holder and a Management Member, and shall cause such Management Member to enter into such other documents and instruments to effect such purchase (including, without limitation, an Incentive Agreement) as are required by the Board. (f) If the Board so determines, the Incentive Units or IncentiveCo Incentive Units issued to any Management Member shall become vested in accordance with the vesting schedule determined by the Board in connection with the issuance of such Incentive Units or the IncentiveCo Incentive Units (Aand reflected in the relevant Incentive Agreement). TopCo Incentive Interests shall become vested in accordance with vesting schedule set forth in the applicable Incentive Agreement for such TopCo Incentive Interests. Incentive Units, IncentiveCo Incentive Units or TopCo Incentive Interests that are subject to vesting and that are vested per such vesting schedule are referred to herein as “Vested Units”. Incentive Units, IncentiveCo Incentive Units or TopCo Incentive Interests that are subject to vesting and that are not yet vested per such vesting schedule are referred to herein as “Unvested Units”. Incentive Units, IncentiveCo Incentive Units or TopCo Incentive Interests that are not subject to vesting or that are fully vested on the date of issuance shall be deemed “Vested Units” for all purposes hereunder. Notwithstanding any other provision in this Section 3.8, each recipient of an Incentive Unit or an IncentiveCo Incentive Unit hereby agrees that such recipient shall make a valid and timely election in respect of such Unit, upon receipt thereof, pursuant to Section 83(b) of the Code and promptly provide evidence of such election to the Company. Notwithstanding anything contained in this Agreement or in any redemption or repurchase by applicable Incentive Agreement to the contrary, Unvested Units shall automatically be forfeited and extinguished without any further action on the part of TopCo, IncentiveCo, the Company or any Unitholder of any Units or any forfeiture by any Unitholder of any Units or (B) any Capital Contribution by any Unitholder in exchange for newly issued Units. (b) The Participation Thresholds of each Unitholder’s Class B Common Units shall be set forth on the Unit Ownership Ledger, and Unit Ownership Ledger shall be amended from time to time by the Company as necessary to reflect any adjustments holder thereof immediately prior to the Participation Thresholds earliest to occur of outstanding Class B Common the consummation of the Second Call Closing, the consummation of the Put Closing or immediately prior to the consummation of a Liquidity Event. To the extent any TopCo Incentive Interests or IncentiveCo Incentive Units required pursuant to are forfeited and extinguished in accordance with the terms and conditions of this Section 3.5. (c) Notwithstanding anything in this Section 3.5 Agreement and/or the applicable Incentive Agreement to the contrary, the Board corresponding Incentive Units that were issued to TopCo or IncentiveCo, as applicable, in connection with the issuance of such TopCo Incentive Units shall also be forfeited and become extinguished. (g) By executing this Agreement, each Member authorizes and directs the Company to elect to have the power “Safe Harbor” described in the proposed revenue procedure set forth in Internal Revenue Service Notice 2005-43 (the “IRS Notice”) apply to amend any interest in the provisions Company transferred to a service provider by the Company on or after the effective date of such revenue procedure in connection with services provided to the Company, including the Incentive Units. For purposes of making such Safe Harbor election, the Partnership Representative is hereby designated as the “member who has responsibility for federal income tax reporting” by the Company and, accordingly, execution of such Safe Harbor election by the Partnership Representative constitutes execution of a “Safe Harbor Election” in accordance with Section 3.03(1) of the IRS Notice. The Company and each Member hereby agree to comply with all requirements of the Safe Harbor described in the IRS Notice, including, without limitation, the requirement that each Member shall prepare and file all federal income tax returns reporting the income tax effects of each “Safe Harbor Partnership Interest” issued by the Company in a manner consistent with the requirements of the IRS Notice. A Member’s obligations to comply with the requirements of this Section 3.5 3.8(g), shall survive such Member’s ceasing to be a Member of the Company and/or the termination, dissolution, liquidation and winding up the Company, and, for purposes of this Section 4.1(a3.8(g), the Company shall be treated as continuing in existence. (h) Incentive Units that have been repurchased by the Company pursuant to achieve Section 3.9 or forfeited to the economic results intended by Company may be reissued subject to the terms of this Agreement, including that (A) each Class A Common Unit has identical entitlement to distributions under Section 4.1(a) and (B) the Class B Common Units are profits interests when issued for United States federal income tax purposes.

Incentive Units. (a) The Company LLC may issue Class B Common Units to existing or new employees, officers, directors, other service providers or consultants of the Company LLC or its Subsidiaries (each, a “Management Unitholder”) pursuant to written agreements approved by the Board (each such agreement, regardless of its actual title, as amended, modified and waived from time to time in accordance with its terms, is referred to herein as an “Incentive Unit Grant Agreement”). The Company LLC may make the Class B Common Units and any issuance thereof and any Incentive Unit Grant Agreement subject to the terms and conditions of any equity or unit incentive plan, as the same may be amended or modified from time to time in accordance with its terms, as may have been adopted by the Company LLC or its Subsidiaries on or before the date of such issuance or Incentive Unit Grant Agreement. On the date of each grant of Class B Common Units to a Management Unitholder who is, or as a result of such grant becomes, a holder of Class B Common Units pursuant to a grant made under an Incentive Unit Grant Agreement or similar agreement, the Board shall establish an initial “Participation Threshold” amount with respect to each Class B Common Unit granted on such date. Unless otherwise determined by the Board, (i) the Participation Threshold with respect to a Class B Common Unit shall be equal to or greater than the Liquidation Value fair market value of a Class A Common Unit on the date of grant of such Class B Common UnitUnit and (ii) the purchase price of each Class B Common Unit shall be $0.001. The Board may designate a series number for each subset of Class B Common Units consisting of Class B Common Units having the same Participation Threshold, which Participation Threshold differs from the Participation Thresholds of all Class B Common Units not included in such subset. If the Board elects to so designate Class B Common Units, then the first Class B Common Unit issued on or after the date hereof shall be designated a “Series 1 Class B Common Unit.” Each Class B Common Unit’s Participation Threshold shall be adjusted after the grant of such Class B Common Unit in the following manner: (i) In the event of any Distribution pursuant to Section 4.1(a)(iii4.1(a)(v), the Participation Threshold of each Class B Common Unit outstanding at the time of such Distribution shall be reduced (but not below zero) by the amount that each Class A Common Unit receives in such Distribution (with such reduction occurring immediately after the determination of the portion of such Distribution, if any, that such Class B Common Unit is entitled to receive). For this purpose, Distributions shall include Tax Distributions made pursuant to Section 4.1(b) only (i) to the extent such Tax Distributions are made as a result of the recognition of the built-in gain in any asset that existed at the time the relevant Class B Common Unit was issued or (ii) to the extent that the relevant Class B Common Unit is not also entitled to a Tax Distribution with respect to the item or tier of taxable income giving rise to the Tax Distribution. For this purpose, the Tax Distribution that arises from the recognition of the built-in gain in an asset may be bifurcated between the Tax Distribution that relates to the built-in gain that existed at the time the relevant Class B Common Unit was issued and the Tax Distribution that relates to any additional gain in the asset that accrued since the time the relevant Class B Common Unit was issued. In order to preserve the economic results intended by this Agreement, the Board may, in its reasonable discretion, determine whether any Tax Distribution or portion of any Tax Distribution should reduce the Participation Threshold of a Class B Common Unit. (ii) In the event of any Capital Contribution with respect to outstanding Class A Common Units that occurs after the issuance of a series of Class B Common Units, the Participation Threshold of each Class B Common Unit outstanding at the time of such Capital Contribution shall be increased by the amount contributed with respect to each Class A Common Unit. (iii) If the Company LLC at any time subdivides (by any Unit split or otherwise) the Class A Common Units into a greater number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such subdivision shall be proportionately reduced, and if the Company LLC at any time combines (by reverse Unit split or otherwise) the Class A Common Units into a smaller number of Units, the Participation Threshold of each Class B Common Unit outstanding immediately prior to such combination shall be proportionately increased. (iv) No adjustment shall be made in connection with (A) any redemption or repurchase by the Company LLC or any Unitholder of any Units or any forfeiture by any Unitholder of any Units or (B) any Capital Contribution by any Unitholder in exchange for newly issued Units. (b) The Participation Thresholds of each Unitholder’s Class B Common Units shall be set forth on the Unit Ownership Ledger, and Unit Ownership Ledger shall be amended from time to time by the Company as necessary to reflect any adjustments to the Participation Thresholds of outstanding Class B Common Units required pursuant to this Section 3.5. (c) Notwithstanding anything in this Section 3.5 to the contrary, the Board shall have the power to amend the provisions of this Section 3.5 and Section 4.1(a) to achieve the economic results intended by this Agreement, including that (A) each Class A Common Unit has identical entitlement to distributions under Section 4.1(a) and (B) the Class B Common Units are profits interests when issued for United States federal income tax purposes.