Common use of Issuance of Class B Units Clause in Contracts

Issuance of Class B Units. 1.1 Upon the execution by Grantee of the Company LLC Agreement (or a joinder thereto) and his delivery thereof to the Company, and subject to the other terms and conditions of this Agreement and the Company LLC Agreement, the Company hereby grants to Grantee an award of unvested Class B Units, with a Distribution Threshold equal to the fair market value of the Partnership as of the Date of Grant as determined by a third party valuation firm, in each case subject to adjustment as set forth in this Agreement and/or the Company LLC Agreement, which adjustments may be made effective as of the Date of Grant. The Class B Units are hereby designated as “Catch-Up Profits Units” (as defined in the Company LLC Agreement) such that they will “catch-up” on distributions or appreciation from and after such Distribution Threshold is met so that, assuming sufficient distributions or appreciation, the Class B Units will “catch-up” and receive the same economics in any applicable distribution under the terms of the Company LLC Agreement that they would have received if the Class B Units had a Distribution Threshold of $0. of the Class B Units shall be subject to vesting in accordance with Paragraph 3 of this Agreement. 1.2 By entering into this Agreement Grantee agrees and acknowledges that (a) Grantee has received and read a copy of the Company LLC Agreement, (b) the Class B Units are subject to the Company LLC Agreement, the terms of which is hereby incorporated herein by reference and made part of this Agreement, and (c) Grantee shall be bound by all of the terms and conditions of the Company LLC Agreement. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Company LLC Agreement, the applicable terms and provisions of the Company LLC Agreement shall govern and prevail. 1.3 For the avoidance of doubt, no distributions of cash or other Property or other operating distributions shall be made to Grantee unless otherwise determined by the Managing Member.

Issuance of Class B Units. 1.1 Upon (a) If the execution by Grantee Board desires to grant incentive awards in the form of Profits Interests to employees of Holdco or any of its Subsidiaries (each, a “Grantee”), then upon the issuance of Holdco B Units to the Company LLC Agreement (or a joinder thereto) and his delivery thereof to in accordance with the Company, and subject to the other terms and conditions of this Agreement and the Company LLC Holdco Agreement, the Manager shall cause the Company hereby grants to Grantee an issue corresponding Class B Units to the applicable Grantees. Each award of unvested Class B UnitsUnits will be evidenced by a Management Incentive Unit Agreement (each, with a Distribution Threshold equal an “Award Agreement”), that shall be executed by the Company and the applicable Grantee. In addition to the fair market value rights, obligations and limitations of the Partnership as holders of the Date of Grant as determined by a third party valuation firm, in each case subject to adjustment as Class B Units set forth in this Agreement and/or the Company LLC Agreement, which adjustments may be made effective as of the Date of Grant. The Class B Units are hereby designated as “Catch-Up Profits Units” (as defined in the Company LLC Agreement) such that they will “catch-up” on distributions or appreciation from and after such Distribution Threshold is met so that, assuming sufficient distributions or appreciation, the Class B Units will “catch-up” and receive the same economics in any applicable distribution under the terms of the Company LLC Agreement that they would have received if the Class B Units had a Distribution Threshold of $0. of the Class B Units shall be subject to vesting the vesting, forfeiture, repurchase and other requirements set forth in the applicable Award Agreement. Notwithstanding anything to the contrary herein, (A) the initial Capital Account balance associated with any Class B Unit shall be zero, (B) upon issuance or as otherwise required by the Code or the Treasury Regulations, the Carrying Values of all of the Company’s assets shall be adjusted pursuant to clause (ii) of the definition of Carrying Value and any resulting Net Income, Net Loss, and other items of income, gain, loss and deduction shall be allocated among the Capital Accounts of all Members in accordance with Paragraph 3 Article V, and (C) any award of Class B Units to a Grantee shall have such other terms and conditions as set forth in the Award Agreement with such Grantee. The Class B Units issued upon the Closing shall be designated the Class B-1 Units. After the Closing Date, the Company shall from time to time, in connection with each issuance of Holdco B Units to the Company in accordance with the Holdco Agreement, designate and issue additional series of Class B Units, each of which additional series shall be designated by a sequential number (e.g., Class B-2, Class B-3, etc.) that is the same as the sequential number designating the corresponding Holdco B Units. The Class B Units are intended to constitute Profits Interests and this Section 4.02 shall not be interpreted otherwise. (b) Upon the Closing, the Company will issue to each Person listed on Schedule A who has both entered into an Award Agreement and executed this Agreement on the date hereof, the number of Class B Units set forth in such Person’s Award Agreement in consideration for the services provided and/or to be provided by such Person to or for the benefit of Holdco or its Subsidiaries and, at such time, each such Person is hereby admitted as a Member of the Company and shall be shown as such on the books and records of the Company; provided, however, that notwithstanding anything to the contrary, any such Member who fails to make EMI Capital Contributions in an aggregate amount equal to its Equity Commitment on or prior to the Funding Date shall, immediately after the Funding Date, automatically cease to be a Member of the Company and shall be removed from Schedule A and have no rights under this Agreement or the Holdco Agreement and all Units issued to such Member shall automatically be forfeited to the Company without consideration. (c) Upon the reissuance or reallocation of Holdco B Units to the Company in accordance with the applicable provisions of the Holdco Agreement, the Manager may cause the Company to reissue or reallocate Class B Units corresponding to such Holdco B Units to any new employee or employees of Holdco or any of its Subsidiaries, if any, hired to replace the Member from whom such Class B Units were repurchased or the Member who forfeited such Class B Units, as the case may be, and/or to any other new or existing employees of Holdco or its Subsidiaries in such proportions and on such terms as determined by the Manager and to admit any such Persons as a Member in accordance with the terms of this Agreement. 1.2 By entering into this Agreement Grantee agrees and acknowledges that (a) Grantee has received and read a copy . Unless otherwise determined by the Board, any such reissuance or reallocation of the Company LLC Agreement, (b) the Class B Units are subject pursuant to the Company LLC Agreement, the terms of which is hereby incorporated herein by reference and made part of this Agreement, and (cSection 4.02(c) Grantee shall be bound by all of the terms and conditions of the Company LLC Agreement. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Company LLC Agreement, the applicable terms and provisions of the Company LLC Agreement shall govern and prevail. 1.3 For the avoidance of doubt, no distributions of cash or other Property or other operating distributions shall be made to Grantee unless otherwise determined in accordance with and governed by the Managing Memberthis Section 4.02(c).