Common use of Units Generally Clause in Contracts

Units Generally. The Members’ ownership interest in the Company shall be represented by issued and outstanding Units, which may be divided into one or more types, classes or series. Each type, class or series of Units shall have the privileges, preferences, duties, liabilities, obligations and rights, including voting rights, if any, set forth in this Agreement with respect to such type, class or series. Unless otherwise determined by the Board, the Units issued hereunder will not be Certificated Units. The Board shall maintain a Schedule of Members and a record of each Member’s ownership interest in the Company (which record, except for the Schedule of Members that is attached to this Agreement as of the Effective Date of this Agreement, shall not be made available to a Member who owns less than a 5.0% Percentage Interest as to any other Member’s ownership interest in the Company, provided further that if a new Member is admitted which is a food service, food supplier, food maker or food packer, then such record of ownership interest shall be made available to the Co-Packers), and shall update the Schedule of Members and such record, as applicable, upon the issuance of any Units to any new Member, upon the Transfer of any Units to any new or existing Member, and upon the forfeiture of any Units. A copy of the Schedule of Members as of the Effective Date of this Agreement is attached hereto as Schedule A. As of the date hereof, the Board and the Members have determined that Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) will not govern any Equity Securities. The Board shall have the sole authority to elect in writing to have any class or series of Equity Securities be subject to Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction); provided that any such election to have Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) shall not be effective until at least two days’ prior written notice of the same is provided to the Members, and shall not be revocable once made, and the class or series of Equity Securities subject to such election, if Units (i.e., not derivative securities), shall thereafter be Certificated Units. The ownership by a Member of any class or series of Units shall entitle such Member to Distributions of cash and other property with respect to such Units as set forth in Article VI hereof.

Units Generally. The Members’ ownership interest in the Company shall be represented by issued and outstanding Units, which may be divided into one or more types, classes or series. Each type, class or series of Units shall have the privileges, preferences, duties, liabilities, obligations and rights, including voting rights, if any, set forth in this Agreement with respect to such type, class or series. Unless otherwise determined by the Board, the Units issued hereunder will not be Certificated Units. The Board shall maintain a Schedule of Members and a record of each Member’s ownership interest in the Company (which record, except for the Schedule of Members that is attached to this Agreement as of the Effective Date of this Agreement, shall not be made available to a Member who owns less than a 5.0% Percentage Interest as to any other Member’s ownership interest in the Company, provided further that if a new Member is admitted which is a food service, food supplier, food maker or food packer, then such record of ownership interest shall be made available to the Co-Packers), and shall update the Schedule of Members and such record, as applicable, upon the issuance of any Units to any new Member, upon the Transfer of any Units to any new or existing Member, and upon the forfeiture of any Units. A copy of the Schedule of Members as of the Effective Date of this Agreement is attached hereto as Schedule A. As of the date hereof, the Board and the Members have determined that Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) will not govern any Equity Securities. The Board shall have the sole authority to elect in writing to have any class or series of Equity Securities be subject to Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction); provided that any such election to have Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) shall not be effective until at least two days’ prior written notice of the same is provided to the Members, and shall not be revocable once made, and the class or series of Equity Securities subject to such election, if Units (i.e., not derivative securities), shall thereafter be Certificated Units. The ownership by a Member of any class or series of Units shall entitle such Member to allocations of Net Income and Net Loss and other items and Distributions of cash and other property with respect to such Units as set forth in Article VI hereof.

Units Generally. The Members’ ownership interest (a) All Membership Interests in the Company shall be represented by issued and outstanding denominated in Units, which may be divided into one Common Units or more typesPreferred Units. Subject to the other provisions of this Agreement (including those governing the Members’ respective rights to receive allocations of Net Profits and Net Losses and distributions of cash or other property, classes and to buy or series. Each typesell Units), class or series of Units each Unit shall have the privileges, preferences, duties, liabilities, obligations and rights, including voting rightsand be subject to the obligations, if anyidentical to those of each other Unit of the same class and/or Series (as applicable). (b) The aggregate number of Units that the Company shall have authority to issue is 1,773,943 Units, set forth in this Agreement with respect to consisting of 1,423,394 Common Units and 310,549 Preferred Units, of which Preferred Units 310,549 shall be designated as Series A Preferred Units. Of the Common Units authorized hereunder, 173,394 of such type, class or series. Unless otherwise determined Common Units shall be reserved by the BoardCompany to be issued in accordance with the terms of an Option or incentive plan to be approved from time to time by the Board of Directors, including such terms relative to vesting, forfeiture and repurchase as may be determined, altered or waived in the sole discretion of the Board of Directors. (c) Each Member’s holdings of Units may be evidenced by a certificate therefor in the form approved by the Board of Directors or may be uncertified and reflected solely on the Unit Register. Each certificate representing Units will, until the time (i) such Units have been effectively registered under Section 5 of the Securities Act and disposed of pursuant to an effective registration statement or (ii) such Units can be freely sold and transferred without restriction under the Securities Act, bear the following legends: (i) “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND, UNLESS SO REGISTERED, THEY MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT AND APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.”; (ii) “THESE SECURITIES ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT OF N2 BIOMEDICAL LLC, AS IT MAY BE AMENDED AND/OR RESTATED THEREAFTER IN ACCORDANCE WITH THE TERMS THEREOF, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF N2 BIOMEDICAL LLC.”; and (iii) any legend required by the “blue sky” laws of any state to the extent such laws are applicable to the Units issued hereunder will not be Certificated Units. The Board shall maintain a Schedule represented by such certificate, or by any other applicable law. (d) In connection with any issuance of Members and a record of each Member’s ownership interest any additional Units in accordance with the Company (which record, except for the Schedule of Members that is attached to this Agreement as of the Effective Date provisions of this Agreement, the Unit Register shall not be made available amended to reflect the number and class and/or Series of such Units, and any such amendment may be effected by any Director or any one or more Officers without any vote, consent, approval or other action of the Members. (e) Units of any Series may also be issued without consideration and treated as "profits interests" as that term is defined in IRS Revenue Procedure 93-27 and clarified by Revenue Procedure 2001-43 that shall entitle a Member who owns less than a 5.0% Percentage Interest as holding such Units to any other Member’s ownership interest share in the Companyportion of the future net income, provided further net loss and capital appreciation of the Company and that if will entitle such a new Member is admitted which is to all of the other rights of a food serviceMember, food supplierbut that may be restricted and subject to forfeiture and vesting in accordance with a separate agreement entered into by and between the Company and the particular Member. Accordingly, food maker or food packer, then the Capital Account balances of all of the Members of the Company at the time of granting of any such record profits interest will be revalued as of ownership interest shall be made available the date of such action pursuant to the CoTreasury Regulation §1.704-Packers1(b)(2)(iv)(f), and no amount shall update the Schedule of Members and such record, as applicable, upon the issuance of any Units to any new Member, upon the Transfer of any Units to any new or existing Member, and upon the forfeiture of any Units. A copy of the Schedule of Members as of the Effective Date of this Agreement is attached hereto as Schedule A. As of the date hereof, the Board and the Members have determined that Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) will not govern any Equity Securities. The Board shall have the sole authority to elect in writing to have any class or series of Equity Securities be subject to Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction); provided that any such election to have Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) shall not be effective until at least two days’ prior written notice of the same is provided attributed to the Members, and shall not be revocable once made, and the class or series Capital Account of Equity Securities subject to such election, if Units (i.e., not derivative securities), shall thereafter be Certificated Units. The ownership by a Member of any class or series of Units shall entitle such Member to Distributions of cash and other property with respect to the grant of such profits interest. Neither upon the grant of any profits interest nor at the time that any Units representing such profits interest become substantially vested (as that term is defined in Treasury Regulation §1.83-3(b)) shall the Company or any of the Members deduct any amount (as wages, compensation, or otherwise) for the fair market value of that profits interest. Notwithstanding the fact that any Units representing such profits interest may be substantially nonvested (as that term is defined in Treasury Regulation §1.83-3(b)) at the time of their grant, the Company and each Member receiving such Units shall treat such Member as set forth the owner of its respective Units from the date of the grant of each such Unit, and each such Member shall take into account his or her distributive share of Company income, gain, loss, deduction and credit associated with his or her profits interest in Article VI hereofcomputing his or her income tax liability for the entire period during which that Member holds such Units. Notwithstanding anything herein to the contrary, treatment of profits interests granted hereunder and the rights and privileges associated therewith may be changed hereafter by the Company as necessary in order to comply with the provisions of the Code and the Treasury Regulations.

Units Generally. The Members’ ownership interest in the Company shall be represented by issued and outstanding Units, which may be divided into one or more types, classes or series. Each type, class or series of Units shall have the privileges, preferences, duties, liabilities, obligations and rights, including voting rights, if any, set forth in this Agreement with respect to such type, class or series. Unless otherwise determined by the Board, the Units issued hereunder will not be Certificated Units. The Board shall maintain a Schedule of Members and a record of each Member’s ownership interest in the Company (which record, except for the Schedule of Members that is attached to this Agreement as of the Effective Date of this Agreement, shall not be made available to a Member who owns less than a 5.0% Percentage Interest as to any other Member’s ownership interest in the Company, provided further that if a new Member is admitted which is a food service, food supplier, food maker or food packer, then such record of ownership interest shall be made available to the Co-Packers), and shall update the Schedule of Members and such record, as applicable, upon the issuance of any Units to any new Member, upon the Transfer of any Units to any new or existing Member, and upon the forfeiture of any Units, or in the manner described in Section 14.20 if any proposed Member does not execute and deliver this Agreement. A copy of the Schedule of Members as of the Effective Date of this Agreement is attached hereto as Schedule A. As of the date hereof, the Board and the Members have determined that Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) will not govern any Equity Securities. The Board shall have the sole authority to elect in writing to have any class or series of Equity Securities be subject to Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction); provided that any such election to have Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) shall not be effective until at least two days’ prior written notice of the same is provided to the Members, and shall not be revocable once made, and the class or series of Equity Securities subject to such election, if Units (i.e., not derivative securities), shall thereafter be Certificated Units. The ownership by a Member of any class or series of Units shall entitle such Member to allocations of Net Income and Net Loss and other items and Distributions of cash and other property with respect to such Units as set forth in Article VI hereof.

Units Generally. The Members’ ownership interest (a) All interests of the Members in Distributions and other amounts specified in this Agreement, as well as the rights of the Members to vote on, consent to or approve any matter for which a vote of Members is required under this Agreement or the Act, shall be denominated in units of membership interests in the Company (each a “Unit” and collectively, the “Units”), and the relative rights, privileges, preferences and obligations of the Members with respect to Units shall be represented by issued determined under this Agreement to the extent provided herein (such rights, privileges, preferences and outstanding obligations, collectively, each Member’s “Membership Rights”). As of the Effective Date, the classes of Units that the Company is authorized to issue are as follows: “Class A Units” and “Class B Units”. The Company is hereby authorized to issue up to one million six hundred thousand (1,600,000) Class A Units, which may be divided into one or more types, and four hundred thousand (400,000) Class B Units. No other classes or series. Each type, class or series of Units or Equity Securities are permitted. The Company may issue fractional Units, and all Units shall have be rounded to the privilegesnearest fourth decimal place. Ownership of a Unit (or a fraction thereof) shall not entitle a Member to call for a partition or division of any property of the Company or for any accounting. (b) The Members, preferencestheir respective Commitments and Capital Contributions and their respective classes and numbers of Units issued, dutiessold, liabilities, obligations and rights, including voting rights, if any, granted or Transferred to them shall be set forth in this Agreement with respect to such type, class or series. Unless otherwise determined on a ledger maintained by the Board, the Units issued hereunder will not be Certificated Units. The Board shall maintain a Schedule of Members and a record of each Member’s ownership interest in the Company (which recordthe “Members Schedule”), except for as the same may be amended and restated from time to time in accordance with the provisions of this Agreement. Absent manifest error, the ownership interests recorded on the Members Schedule shall be a conclusive record of the Units that are issued and outstanding. (c) A copy of the Members that is attached to this Agreement Schedule as of the Effective Date was provided to the Members prior to the execution of the Purchase Agreement. Any amendment or revision to the Members Schedule made to reflect an action taken in accordance with this Agreement, Agreement shall not be made available deemed an amendment to a Member who owns less than a 5.0% Percentage Interest as to any other Member’s ownership interest this Agreement. A current copy of the Members Schedule shall be held in confidence by the Company, provided further that if a new Member is admitted which is a food service, food supplier, food maker or food packer, then such record . A redacted version of ownership interest the Members Schedule shall be made available to any Member at the Co-Packers), and shall update the Schedule request of Members and such record, as applicable, upon the issuance of any Units to any new Member, upon which such redacted version will show only the Transfer Units held by such Member and the aggregate number of issued and outstanding Units held by other Members (and not, for clarity, any Units other identifying information about any other Person holding Units). Notwithstanding the foregoing, each of GS and Customer Parent shall be entitled to any new or existing Member, request a full and upon the forfeiture of any Units. A complete unredacted copy of the Members Schedule of Members as of the Effective Date of this Agreement is attached hereto as Schedule A. As of the date hereof, the Board and the Members have determined that Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) will not govern any Equity Securities. The Board shall have the sole authority from time to elect in writing to have any class or series of Equity Securities be subject to Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction); provided that any such election to have Article 8 of the Uniform Commercial Code of the State of Delaware (and the Uniform Commercial Code of any other applicable jurisdiction) shall not be effective until at least two days’ prior written notice of the same is provided to the Members, and shall not be revocable once made, and the class or series of Equity Securities subject to such election, if Units (i.e., not derivative securities), shall thereafter be Certificated Units. The ownership by a Member of any class or series of Units shall entitle such Member to Distributions of cash and other property with respect to such Units as set forth in Article VI hereoftime.