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8-K 1 accelevation-8xk.htm 8-K Accelevation - 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 29, 2026
Accelevation Holdings Corp.
(Exact name of registrant as specified in its charter)
Delaware
001-43490
42-3222150
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio
45342
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code: (937) 258-0616
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Class A common stock, par value $0.0001 per share
ACCV
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    ☐
Item 1.01.Entry into a Material Definitive Agreement.
On September 29, 2026, Accelevation Holdings Corp. (the “Company”), Accelevation LLC (“Accelevation
LLC”) and Accelevation Cash Pubco Holdings LP (“Accelevation Cash Pubco Holdings”) and Accelevation
Investment Holdings LLC (“Investment Holdings” together, with Accelevation Cash Pubco Holdings, the “Selling
Stockholders”), entered into an underwriting agreement (the “Underwriting Agreement”) with Morgan Stanley &
Co. LLC and J.P. Morgan Securities LLC, as representatives of the several underwriters named in Schedule II
thereto (collectively, the “Underwriters”) relating to the initial public offering (the “IPO”) of the Company’s Class A
common stock, par value $0.0001 per share (“Class A Common Stock”). The Underwriting Agreement provides for
the offer and sale by the Company of 10,000,000 shares of Class A Common Stock and by the Selling Stockholders
of 20,000,000 shares of Class A Common Stock (collectively, the “Firm Shares”) at a public offering price of $18.00
per share. Pursuant to the Underwriting Agreement, the Selling Stockholders granted the Underwriters a 30-day
option to purchase up to an additional 4,500,000 shares of Class A Common Stock. On October 1, 2026, the IPO
closed and the Firm Shares were delivered. The material terms of the Underwriting Agreement are described in the
prospectus, dated September 29, 2026 (the “Prospectus”), filed by the Company with the U.S. Securities and
Exchange Commission (the “Commission”) on October 1, 2026, pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the “Securities Act”). The IPO is registered with the Commission pursuant to the Company’s
Registration Statement on Form S-1, as amended (File No. 333-298715).
The Underwriting Agreement contains customary representations and warranties, agreements and
obligations, closing conditions and termination provisions. The Company and the Selling Stockholders have agreed
to indemnify the Underwriters against (or contribute to the payment of) certain liabilities, including liabilities under
the Securities Act. This description of the Underwriting Agreement is qualified in its entirety by reference to the full
text of the Underwriting Agreement attached hereto as Exhibit 1.1, which is incorporated by reference into this Item
1.01. Additionally, for a summary description of relationships between the Company and the Underwriters, see the
section entitled “Underwriting” in the Prospectus.
In connection with the consummation of the IPO, the Company entered into the following additional
agreements:
•the Registration Rights Agreement, dated as of September 29, 2026, by and among the Company,
Accelevation Pubco Holdings LP (“Pubco Holdings”) and Investment Holdings, a copy of which is filed
as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein;
•the Director Nomination Agreement, dated as of September 29, 2026, by and among the Company,
Pubco Holdings, Investment Holdings, Michael Rubiera and the other parties signatory thereto, a copy
of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference
herein;
•the Limited Liability Company Agreement of Accelevation Holdings LLC (“Holdings LLC”), dated as
of September 30, 2026, by and among the Company and the other signatories party thereto, a copy of
which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference
herein;
•the Tax Receivable Agreement, dated as of September 30, 2026, by and among the Company, Holdings
LLC, Instor Blocker, Inc. (“Instor”) and Investment Holdings, a copy of which is filed as Exhibit 10.3 to
this Current Report on Form 8-K and is incorporated by reference herein; and
•the Exchange Agreement, dated as of September 30, 2026, by and among the Company, Holdings LLC,
Instor and Investment Holdings, a copy of which is filed as Exhibit 10.4 to this Current Report on Form
8-K and is incorporated by reference herein.
Descriptions of these agreements are contained in the Prospectus in the sections entitled “Certain
Relationships and Related Party Transactions” and “Organizational Structure” and are incorporated by reference into
this Item 1.01. Such descriptions are qualified in their entirety by reference to the full text of each of the agreements
attached hereto as Exhibits 4.1, 10.1, 10.2, 10.3 and 10.4, which are incorporated by reference into this Item 1.01.
Item 3.02.Unregistered Sales of Equity Securities.
In connection with the consummation of the IPO and as contemplated by the transactions described in the
Prospectus under “Organizational Structure,” which section is incorporated by reference into this Item 3.02, the
Company issued to Investment Holdings 116,965,529 shares of Class B common stock, par value $0.0001 per share
(the “Class B Common Stock”). A description of the designations, rights, powers and preferences of the Class B
Common Stock is contained in the Prospectus in the section entitled “Description of Capital Stock” and is
incorporated by reference into this Item 3.02. The issuance of the Class B Common Stock described in this
paragraph was made in reliance on Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder.
Item 3.03.Material Modification to Rights of Security Holders.
The information provided under Item 5.03 of this Current Report on Form 8-K is incorporated by reference
into this Item 3.03.
Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
On September 29, 2026, Manu Bettegowda, Matt Bujor, Robert Morris, Paul Donahue, Howard Heckes,
Ginger Jones, and Martin Durkin were appointed to the Company’s board of directors. Biographical information and
other information regarding the committees upon which Messrs. Bettegowda, Bujor, Morris, Donahue, Heckes, and
Durkin, and Ms. Jones are expected to serve, related party transactions involving any of these directors, the
compensation plans in which these directors participate and information about any arrangement or understanding
between these directors and any other persons pursuant to which these directors were selected as a director are
included in the Prospectus in the sections entitled “Certain Relationships and Related Party Transactions,”
“Executive Compensation,” and “Management” and are incorporated by reference into this Item 5.02.
On or around September 29, 2026, in connection with the IPO, the Company entered into indemnification
agreements with each of its directors and executive officers. These agreements provide the Company’s directors and
executive officers with contractual rights to indemnification, expense advancement and reimbursement, to the fullest
extent permitted under the Delaware General Corporation Law. These indemnification rights are not exclusive of
any other right that an indemnified person may have or hereafter acquire under any statute, provision of the
Company’s Certificate of Incorporation or Bylaws (each as defined below), any agreement, or vote of stockholders
or disinterested directors or otherwise. This description of the indemnification agreements is qualified in its entirety
by reference to the form of director and officer indemnification agreement attached hereto as Exhibit 10.5, which is
incorporated by reference into this Item 5.02.
Additionally, on September 29, 2026, and in connection with the IPO, the Company adopted the
Accelevation Holdings Corp. 2026 Omnibus Incentive Plan (the “Omnibus Plan”). A description of the Omnibus
Plan is contained in the Prospectus in the section entitled “Executive Compensation—Actions Taken in Connection
with this Offering—Omnibus Incentive Plan” and is incorporated by reference into this Item 5.02. Such description
is qualified in its entirety by reference to the full text of the Omnibus Plan attached hereto as Exhibit 10.6, which is
incorporated by reference into this Item 5.02.
Item 5.03.Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 29, 2026, the Company filed an amended and restated certificate of incorporation (the
“Certificate of Incorporation”) with the Secretary of State of the State of Delaware and adopted amended and
restated bylaws (the “Bylaws”), each of which became effective on September 29, 2026. A description of the
Certificate of Incorporation and the Bylaws is contained in the Prospectus in the section entitled “Description of
Capital Stock” and is incorporated by reference into this Item 5.03. Such description is qualified in its entirety by
reference to the full text of the Certificate of Incorporation attached hereto as Exhibit 3.1 and the full text of the
Bylaws attached hereto as Exhibit 3.2, both of which are incorporated by reference into this Item 5.03.
Item 9.01.Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
1.1
3.1
3.2
4.1
10.1
10.2
10.3
10.4
10.5
10.6
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly authorized.
ACCELEVATION HOLDINGS CORP.
Date: October 1, 2026
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Title:
Chief Executive Officer
EX-1.1 2 exhibit11-8xkxuwa.htm EX-1.1 Exhibit 1.1 - 8-K - UWA
Exhibit 1.1
30,000,000 Shares
ACCELEVATION HOLDINGS CORP.
CLASS A COMMON STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
September 29, 2026
September 29, 2026
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Accelevation Holdings Corp., a Delaware corporation (the “Company”), proposes to
issue and sell to the several Underwriters named in Schedule II hereto (the “Underwriters”), for
whom Morgan Stanley & Co. LLC (“Morgan Stanley”) and J.P. Morgan Securities LLC are
acting as representatives (the “Representatives”) and certain shareholders of the Company (the
“Selling Shareholders” and each a “Selling Shareholder”) named in Schedule I hereto
severally propose to sell to the several Underwriters, an aggregate of 30,000,000 shares (the
“Firm Shares”) of Class A common stock, par value $0.0001 per share, of the Company (the
“Class A Common Stock”), of which 10,000,000 shares are to be issued and sold by the
Company and 20,000,000 shares are to be sold by the Selling Shareholders, each Selling
Shareholder selling the amount set forth opposite such Selling Shareholder’s name in Schedule I
hereto.
The Selling Shareholders also propose to sell to the several Underwriters not more than
an additional 4,500,000 shares of Class A Common Stock (collectively, the “Additional
Shares”), if and to the extent that the Representatives shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Additional Shares granted to the
Underwriters in Section 3.  The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “Shares.” The shares of Class A Common Stock and Class B
common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock”) to
be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to
collectively as the “Common Stock.” The Company and the Selling Shareholders are hereinafter
sometimes collectively referred to as the “Sellers.”
In anticipation of the offering contemplated by this Agreement, prior to the Closing Date
(as defined in Section 5), the Company will complete reorganization transactions as described in
the section titled “Organizational Structure–Organizational Transactions” in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (each, as defined below) (the
“Organizational Transactions”).
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On the date hereof, the business of the Company is conducted through Accelevation LLC,
a Delaware limited liability company (“Accelevation LLC”), and its subsidiaries. In connection
with the offering contemplated by this Agreement, the Organizational Transactions will occur
prior to the Closing Date, pursuant to which the Company will become the sole managing
member of Accelevation Holdings LLC (“Holdings LLC”), a newly formed direct parent entity
of Accelevation LLC. As the sole managing member of Holdings LLC, the Company will
operate and control all of the business and affairs of Holdings LLC and Accelevation LLC, and,
through Holdings LLC and its subsidiaries, conduct its business. The documents set forth on
Schedule IV hereto, which have been, or will be, amended and restated or entered into, as
applicable, pursuant to the Organizational Transactions, are referred to as the “Transaction
Documents.” The Company and Accelevation LLC are each referred to herein as an
“Accelevation Party” and collectively referred to herein as the “Accelevation Parties.”
The Company has filed with the U.S. Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-1 (File No. 333-298715), including a
preliminary prospectus, relating to the Shares.  The registration statement, as amended at the time
it becomes effective, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”; the
prospectus in the form first used to confirm sales of Shares (or in the form first made available to
the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Prospectus.”  If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (a “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “preliminary prospectus” shall mean each prospectus used
prior to the effectiveness of the Registration Statement, and each prospectus that omitted
information pursuant to Rule 430A under the Securities Act that was used after such
effectiveness and prior to the execution and delivery of this Agreement, “Time of Sale
Prospectus” means the preliminary prospectus contained in the Registration Statement at the
time of its effectiveness together with the documents, pricing information and the free writing
prospectuses, if any, set forth in Schedule III hereto, and “broadly available road show” means
a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person.  As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include
the documents, if any, incorporated by reference therein as of the date hereof.
Morgan Stanley has agreed to reserve a portion of the Shares to be purchased by it under
this Agreement for sale to the Company’s directors, officers, employees and business associates
and other parties related to the Company (collectively, “Participants”), as set forth in each of the
Time of Sale Prospectus and the Prospectus
3
under the heading “Underwriters” (the “Directed Share Program”).  The Shares to be sold by
Morgan Stanley and its affiliates pursuant to the Directed Share Program, at the direction of the
Company, are referred to hereinafter as the “Directed Shares.” Any Directed Shares not
confirmed for purchase by any Participant by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set forth in the
Prospectus.
1.Representations and Warranties of the Accelevation Parties.  Each of the
Accelevation Parties, jointly and severally, represents and warrants to and agrees with each of
the Underwriters that:
(a)The Registration Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such
purpose or pursuant to Section 8A under the Securities Act are pending before or, to the
knowledge of the Accelevation Parties, threatened by the Commission.
(b)(i) The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not, as of the Closing Date or the Option
Closing Date (each, as defined below), as applicable, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder; (iii) the Time of Sale Prospectus does not, and at the time of
each sale of the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date, the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; (iv) each broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the Prospectus, as of
its date, does not contain and, as amended or supplemented, if applicable, will not
contain, as of the Closing Date or the Option Closing Date, as applicable, any untrue
statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by, or on behalf of, such
Underwriter through the Representatives expressly for use therein, it being understood
and agreed that the
4
only such information furnished by any Underwriter consists of the Underwriter
Information (as defined in Section 11(b) of this Agreement).
(c)The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act.  Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder.  Each free
writing prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used or referred
to by the Company complies or will comply in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder.  Except for the free writing prospectuses, if any, identified in Schedule III
hereto, and electronic road shows, if any, each furnished to the Representatives before
first use, the Company has not prepared, used or referred to, and will not, without the
Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d)Each of the Accelevation Parties has been duly incorporated, is validly existing as a
corporation or a limited liability company, as applicable, is in good standing under the
laws of the State of Delaware, has the corporate or other business entity power and
authority to own or lease its property and to conduct its business as described in each of
the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing would not,
singly or in the aggregate, have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business, operations or prospects of the Accelevation
Parties and their respective subsidiaries, taken as a whole or on the power or ability of the
Accelevation Parties to perform their obligations under this Agreement or to consummate
the transactions contemplated by each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus (a “Material Adverse Effect”).
(e)Each subsidiary of the Company has been duly incorporated, organized or formed, is
validly existing as a corporation or other business entity in good standing under the laws
of the jurisdiction of its incorporation, organization or formation (to the extent the
concept of good standing or any functional equivalent is applicable in such jurisdiction),
has the corporate or other business entity power and authority to own or lease its property
and to conduct its business as described in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction (to the extent the concept of good standing or any
functional equivalent is applicable in such jurisdiction) in which the conduct of its
business or its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not, singly
5
or in the aggregate, have a Material Adverse Effect; all of the issued shares of capital
stock or other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims that would not be, singly or in the
aggregate, material to the Accelevation Parties and their respective subsidiaries, taken as
a whole.
(f)Each of the documents listed on Schedule IV hereto and this Agreement, and the
performance of the Accelevation Parties and their respective obligations thereunder and
hereunder, have been duly authorized by all necessary corporate action and have been
duly executed and delivered by each of the Accelevation Parties, as applicable.
(g)The authorized capital stock of the Company and the authorized membership interests of
Accelevation LLC conform as to legal matters to the description thereof contained in
each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(h)The shares of Common Stock (including the Shares to be sold by the Selling
Shareholders) outstanding prior to the issuance of the Shares to be sold by the Company
have been duly authorized and are validly issued, fully paid and non-assessable. The
membership interests of Accelevation LLC outstanding prior to the consummation of this
offering have been, and the membership interests of Holdings LLC outstanding prior to
the consummation of this offering will be, duly authorized and are validly issued, fully
paid and non-assessable.
(i)The Shares have been duly authorized and, when issued, delivered and paid for in
accordance with the terms of this Agreement, will be validly issued, fully paid and non-
assessable, and the issuance of the Shares will not be subject to any preemptive or similar
rights.
(j)Neither the Accelevation Parties nor any of their respective subsidiaries are currently in
violation of, and the execution and delivery by the Accelevation Parties of, and the
performance by the Accelevation Parties of their obligations under, this Agreement and
the consummation of the transactions contemplated herein, including the Organizational
Transactions, will not contravene (i) any provision of applicable law, (ii) the certificate of
incorporation or bylaws of the Company or the certificate of formation or limited liability
company agreement of Accelevation LLC, (iii) any agreement or other instrument
binding upon the Accelevation Parties or any of their respective subsidiaries that is
material to the Accelevation Parties and their respective subsidiaries, taken as a whole, or
(iv) any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Accelevation Parties or any of their respective subsidiaries, except,
in the cases of clauses (i), (iii) and (iv) as would not, individually or in the aggregate,
have a Material Adverse Effect, and no consent, approval, authorization or order of, or
qualification with, any governmental body, agency or
6
court is required for the performance by the Accelevation Parties of their obligations
under this Agreement, except such as may be required by the securities or Blue Sky laws
of the various states or the rules and regulations of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) in connection with the offer and sale of the Shares.
(k)There has not occurred any event, effect or circumstance that, individually or in the
aggregate, has involved or is reasonably likely to involve a material adverse change in the
condition, financial or otherwise, or in the earnings, business, operations or prospects of
the Accelevation Parties and their respective subsidiaries, taken as a whole, from that set
forth in the Time of Sale Prospectus. Other than the Organizational Transactions, there
have been no transactions entered into by the Accelevation Parties or any of their
respective subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Accelevation Parties and their respective subsidiaries taken as
a whole. There has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock other than in connection with the
Organizational Transactions.
(l)There are no legal, governmental or regulatory investigations, actions, demands, claims,
suits, arbitrations or proceedings pending or, to the knowledge of the Accelevation
Parties, threatened to which the Accelevation Parties or any of their respective
subsidiaries or any officer or director of the Accelevation Parties is a party or to which
any of the properties or assets of the Accelevation Parties or any of their respective
subsidiaries or any officer or director of the Accelevation Parties is subject, other than
proceedings (i) accurately described in all material respects in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and (ii) that would not, singly
or in the aggregate, have a Material Adverse Effect. There are no legal or governmental
proceedings that are required to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be described in the
Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as required.
(m)Each preliminary prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(n)Neither of the Accelevation Parties is, and after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, neither of the
Accelevation Parties will be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
7
(o)Except as permitted under Regulation M under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), neither the Accelevation Parties nor any affiliate of the
Accelevation Parties has taken, directly or indirectly, any action designed to cause or
result in, or which has constituted or which would reasonably be expected to constitute,
the stabilization or manipulation of the price of any securities of the Company, to
facilitate the sale or resale of the Shares.
(p)(i) The Accelevation Parties and each of their respective subsidiaries (A) are and have
been in compliance with any and all applicable foreign, federal, state and local laws and
regulations relating to pollution, human health and safety, the environment (including,
without limitation, indoor or outdoor air, surface water, groundwater, drinking water
supply, sediment, land surface, or subsurface strata), natural resources, wildlife or
ecosystems, sustainability, or climate change, including, without limitation, laws and
regulations relating to the release or threatened release of, or exposure to, any chemical,
substance, material or waste that is regulated or defined as hazardous, toxic or
radioactive, or as a pollutant or contaminant, or words of similar meaning, in or under
any law or regulation, and any petroleum or petroleum products, asbestos-containing
materials, mold, or per- or polyfluoroalkyl substances, (“Hazardous Materials” and any
such laws or regulations, “Environmental Laws”), (B) hold all permits, licenses,
registrations, or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses, (C) are and have been in compliance with all terms
and conditions of any such permit, license, registration or approval, and (D) have not
received, are not a party to, and are not aware of any pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, notices of liability, investigations or
proceedings relating to any Environmental Law or any permit, license, registration or
other approval required thereunder; and (ii) there are no events or circumstances that have
formed the basis of, or would reasonably be expected to form the basis of, an order for
clean-up or remediation, or an action, suit or proceeding by any private party or
governmental body, against or affecting the Accelevation Parties or any of their
respective subsidiaries, relating to Hazardous Materials or any Environmental Laws,
except in the case of any and all of the foregoing (i) and (ii), as would not, singly or in the
aggregate, have a Material Adverse Effect.
(q)There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up; closure of
facilities or properties; compliance with Environmental Laws or any permit, license,
registration or other approval required thereunder; constraints on operating or production
activities; or any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(r)There are no contracts, agreements or understandings between either of the Accelevation
Parties and any person granting such person the right to require the Accelevation Parties
to file a registration statement under the Securities Act with respect to any securities of
the Accelevation Parties or to require the Accelevation
8
Parties to include such securities with the Shares registered pursuant to the Registration
Statement except those contracts, agreements and understandings described in the
Registration Statement, Time of Sale Prospectus and the Prospectus.
(s)Neither the Accelevation Parties nor any of their respective subsidiaries or affiliates, nor
any director, officer, or employee thereof, nor, to the knowledge of the Accelevation
Parties, any agent or representative of the Accelevation Parties or of any of their
respective subsidiaries or affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment, giving or
receipt of money, property, gifts or anything else of value, directly or indirectly, to any
person to improperly influence official action by that person for the benefit of the
Accelevation Parties or their respective subsidiaries or affiliates, or to otherwise secure
any improper advantage, or to any person in violation of (i) the U.S. Foreign Corrupt
Practices Act of 1977, (ii) the UK Bribery Act 2010, or (iii) any other applicable law,
regulation, order, decree or directive having the force of law and relating to bribery or
corruption (collectively, the “Anti-Corruption Laws”).
(t)The operations of the Accelevation Parties and each of their respective subsidiaries are
and have been conducted at all times in compliance with all applicable anti-money
laundering laws, rules, and regulations, including the financial recordkeeping and
reporting requirements contained therein, and including the Bank Secrecy Act of 1970,
applicable provisions of the USA PATRIOT Act of 2001, the Money Laundering Control
Act of 1986, and the Anti-Money Laundering Act of 2020 (collectively, the “Anti-
Money Laundering Laws”).
(u)(i) Neither the Accelevation Parties nor any of their respective subsidiaries, nor any
director, officer, employee, agent, affiliate, or representative of the Accelevation Parties
or any of their respective subsidiaries, is an individual or entity (“Person”) that is, or is
owned or controlled by one or more Persons that are:
(A)the subject of any sanctions administered or enforced
by the United States Government (including the U.S. Department of the
Treasury’s Office of Foreign Assets Control and the U.S. Department of
State), the United Nations Security Council, the European Union, His
Majesty’s Treasury, or any other relevant sanctions authority
(collectively, “Sanctions”), or
(B)located, organized or resident in a country or territory
that is the subject of comprehensive territorial Sanctions (including,
without limitation, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic, or any other Covered Region of Ukraine
identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, and
North Korea).
9
(ii)Each of the Accelevation Parties and their respective subsidiaries
(A) have not, since the more recent of April 24, 2019 or ten years prior to the date
of this Agreement, engaged in, (B) are not now engaged in, and (C) will not
engage in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was, or whose
government is or was, the subject of Sanctions.
(iii)The Accelevation Parties will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A)to fund or facilitate any activities or business of or with
any Person or in any country or territory that, at the time of such funding
or facilitation, is, or whose government is, the subject of Sanctions;
(B)to fund or facilitate any money laundering or terrorist
financing activities; or
(C)in any other manner that would cause or result in a
violation of any Anti-Corruption Laws, Anti-Money Laundering Laws, or
Sanctions by any Person (including any Person participating in the
offering, whether as underwriter, advisor, investor or otherwise).
(v)The Accelevation Parties and their respective subsidiaries have conducted and will
conduct their respective businesses in compliance with the Anti-Corruption Laws, the
Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Accelevation Parties or any of their respective subsidiaries with
respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws, or Sanctions is
pending or, to the knowledge of the Accelevation Parties, threatened.  The Accelevation
Parties and their respective subsidiaries and affiliates have instituted and maintained and
will continue to maintain policies and procedures reasonably designed to promote and
achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws,
Sanctions, and with the representations and warranties contained herein.
(w)The Accelevation Parties represent that, as of the date of this Agreement, neither the
Accelevation Parties nor any of their respective subsidiaries is a “covered foreign
person,” as that term is defined in 31 C.F.R. § 850.209. The Accelevation Parties do not
and will not, and will not permit any of their respective subsidiaries to, (i) be or become a
“covered foreign person”, as that term is defined in the regulations administered and
enforced, together with any related public guidance issued, by the United States Treasury
Department under U.S. Executive Order
10
14105 of August 9, 2023, or any similar law or regulation, as of the date of this
Agreement, and as codified at 31 C.F.R. §850.101 et seq (the “Outbound Investment
Rules”), or (ii) engage, directly or indirectly, in (A) a “covered activity” or a “covered
transaction”, as each such term is defined in the Outbound Investment Rules, (B) with
respect to any subsidiary of the Accelevation Parties that is not a U.S. Person (as defined
in the Outbound Investment Rules), any activity that would constitute a “covered
activity” or “covered transaction”, as each such term is defined in the Outbound
Investment Rules, if such subsidiary were a U.S. Person, (C) any other activity that would
cause the Underwriters to be in violation of the Outbound Investment Rules or cause the
Underwriters to be legally prohibited by the Outbound Investment Rules from performing
under this Agreement.
(x)Neither the Accelevation Parties, nor any of their respective subsidiaries, directors,
officers, employees or affiliates, nor, to the knowledge of the Accelevation Parties, any
agent or other person acting on behalf of the Accelevation Parties, is the subject of any
pending or threatened enforcement action, administrative proceeding, denial order,
debarment, or other restriction under Export Controls (meaning all export control laws
and regulations administered or enforced by (i) the United States Government (including
by the U.S. Department of Commerce or the U.S. Department of State), including the
Arms Export Control Act (22 U.S.C. § 2778), the Export Control Reform Act of 2018 (50
U.S.C. §§ 4801-4861), the International Traffic in Arms Regulations (22 C.F.R. Parts
120–130), and the Export Administration Regulations (15 C.F.R. Parts 730-774), and (ii)
any other relevant governmental authority, including (to the extent applicable) EU
Regulation 2021/821 (as amended), the Export Control Order 2008, or any other
applicable export control legislation or regulation of the United States, European Union,
or United Kingdom). The Accelevation Parties and each of their respective subsidiaries
(a) have not, since five years prior to the date of the Agreement, engaged in, (b) are not
now engaged in, and (c) will not engage in any unauthorized dealings or transactions
involving any Person or item that, at the time of such dealing or transaction, was subject
to restrictions under Export Controls, including any Person identified on a restricted party
list maintained pursuant to Export Controls, or any other lists or regulations administered
or enforced by the U.S. Department of Commerce.   
(y)Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, the Accelevation
Parties and their respective subsidiaries, taken as a whole, have not incurred any material
liability or obligation, direct or contingent, nor entered into any material transaction; the
Accelevation Parties have not purchased any class of outstanding capital stock or
membership interests, nor declared, paid or otherwise made any dividend or distribution
of any kind on any class of capital stock or membership interests other than ordinary and
customary dividends; and there has not been any material change in any class of capital
stock or membership interests, short-term debt or long-term debt of the Accelevation
Parties and their
11
respective subsidiaries, taken as a whole, other than in connection with the
Organizational Transactions.
(z)The Accelevation Parties and each of their respective subsidiaries have good and
marketable title to all real property owned by them and good and marketable title to all
other property owned by them which is material to the business of the Accelevation
Parties and their respective subsidiaries, in each case free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions, encumbrances and defects except
such as do not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Accelevation Parties and their
respective subsidiaries; and any real property and buildings held under lease by the
Accelevation Parties and their respective subsidiaries are held by them in full force and
effect and under valid, subsisting and enforceable leases, and neither the Accelevation
Parties nor any such subsidiary has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Accelevation Parties or of their
respective subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Accelevation Parties or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(aa)(i) The Accelevation Parties and their respective subsidiaries own or have a valid
and enforceable license to use all patents, inventions, copyrights (including rights in
software), know how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), domain names,
trademarks, service marks, trade names, social media identifiers and accounts and all
other worldwide intellectual property and similar proprietary rights, and any applications
or registrations for any of the foregoing, together with all rights to claim priority under
and all goodwill associated with any of the foregoing (collectively, “Intellectual
Property Rights”) used or held for use in any material respect in or reasonably necessary
to the conduct of their businesses as currently conducted and as proposed to be conducted
(“Company IP”); (ii) the Accelevation Parties and their respective subsidiaries solely
and exclusively own all Intellectual Property Rights owned or purported to be owned by
any of them and hold all of their respective rights under all Intellectual Property Rights
owned by, or licensed to, any of them free and clear of all liens, encumbrances and
defects; (iii) the Intellectual Property Rights owned by the Accelevation Parties or any of
their respective subsidiaries and, to the knowledge of the Accelevation Parties, the
Intellectual Property Rights licensed to the Accelevation Parties and any of their
respective subsidiaries, are valid, subsisting and enforceable, and there is no pending or,
to the knowledge of the Accelevation Parties, threatened action, suit, proceeding or claim
by others challenging the validity, ownership, registrability, scope or enforceability of
any Company IP, and neither the Company nor any of its subsidiaries is aware of any
facts which would form a reasonable basis for any such claim; (iv) neither the
Accelevation Parties nor any of their respective subsidiaries have received any notice
alleging any infringement, misappropriation or other violation of Intellectual Property
Rights,
12
and to the knowledge of the Accelevation Parties, no such action, suit, proceeding or
claim is threatened; (v) to the knowledge of the Accelevation Parties, no third party is
infringing, misappropriating or otherwise violating, or has infringed, misappropriated or
otherwise violated, any Company IP; (vi) to the knowledge of the Accelevation Parties
and their respective subsidiaries, neither the Accelevation Parties nor any of their
respective subsidiaries infringe, misappropriate or otherwise violate, or have infringed,
misappropriated or otherwise violated, any Intellectual Property Rights; (vii) the
Accelevation Parties and each of their respective subsidiaries are in compliance with all
licenses and other agreements governing the use of Intellectual Property Rights to which
any of the Accelevation Parties or any of their respective subsidiaries is a party, or under
which any of the Accelevation Parties or any of their respective subsidiaries’ assets are
bound (collectively, the “Intellectual Property Contracts”), and neither the
Accelevation Parties nor any of their respective subsidiaries have received any written
notice alleging any such noncompliance and are unaware of any facts which would form
a reasonable basis for any such claim; (viii) all Intellectual Property Contracts are in full
force and effect; (ix) all Persons (including employees and contractors) engaged in, or
that may engage in, the development of Intellectual Property Rights on behalf of the
Accelevation Parties or any of their respective subsidiaries have executed a valid and
enforceable invention assignment agreement whereby such Persons presently assign all of
their right, title and interest in and to such Intellectual Property Rights to the
Accelevation Parties or the applicable subsidiary, and to the knowledge of the
Accelevation Parties, no such agreement has been breached or violated; (x) the
Accelevation Parties and their respective subsidiaries take, and have taken, all
commercially reasonable steps to appropriately maintain and protect the confidentiality of
all information intended to be maintained as confidential, including any trade secrets and
other material confidential Intellectual Property Rights; and (xi) no university, military,
educational institution, research center, governmental body or other organization has
funded, contributed to or sponsored research and development conducted in connection
with the business of the Accelevation Parties or any of their respective subsidiaries that
has any claim of right to, ownership of or other lien on any Company IP or would affect
the proprietary nature of any Company IP or restrict the ability of the Accelevation
Parties or any of their respective subsidiaries to enforce, license or exclude others from
using any Company IP.
(bb)With respect to artificial intelligence, advanced machine learning or other similar
generative models (collectively, “AI Tools”), the Accelevation Parties and their
respective subsidiaries (i) use AI Tools in compliance with all applicable license terms,
consents, agreements and laws; and (ii) have not used AI Tools in a manner that
adversely affects the ownership, validity, or enforceability of any Company IP or any
output created by such AI Tool that the Company intended to own or would have owned
if created without the use of such AI Tool.
(cc)(i) The Accelevation Parties and their respective subsidiaries use and have used
any and all software or other materials under a “free,” “open source,” or
13
similar licensing model (including but not limited to the MIT License, Apache License,
GNU General Public License, GNU Lesser General Public License and GNU Affero
General Public License) (“Open Source Software”) in compliance with all license terms
applicable to such Open Source Software; (ii) none of the Accelevation Parties nor any of
their respective subsidiaries develop, use or have developed, distributed or have used any
Open Source Software in any manner that requires or has required (A) the Accelevation
Parties or any of their respective subsidiaries to permit reverse engineering of any
software code or other technology owned by the Accelevation Parties or any of their
respective subsidiaries or (B) any software code or other technology owned by the
Accelevation Parties or any of their respective subsidiaries to be (1) disclosed, delivered,
licensed, distributed or otherwise made available to any other person in source code form,
(2) licensed for the purpose of making derivative works or (3) redistributed at no charge;
and (iii) none of the software developed or owned by the Accelevation Parties or any of
their respective subsidiaries is subject to any escrow obligation.
(dd)(i) The Accelevation Parties and each of their respective subsidiaries have
complied and are presently in compliance with all internal and external privacy policies,
contractual obligations, industry standards, applicable laws, statutes, judgments, orders,
rules and regulations of any court or arbitrator or other governmental or regulatory
authority and any other legal obligations, in each case, relating to the collection, use,
transfer, handling, analysis, import, export, storage, protection, disposal, disclosure or
other processing by any of the Accelevation Parties or any of their respective subsidiaries
of personal, personally identifiable, household, sensitive, confidential or regulated data
(“Data Security Obligations,” and such data, “Data”); (ii) neither the Accelevation
Parties nor any of their respective subsidiaries have received any notification of or
complaint regarding and neither the Accelevation Parties nor any of their respective
subsidiaries are aware of any other facts that, individually or in the aggregate, would
reasonably indicate non-compliance in any material respect with any Data Security
Obligation; (iii) there is no investigation, inquiry, action, suit or proceeding by or before
any court or governmental agency, authority or body pending or, to the knowledge of the
Accelevation Parties, threatened alleging non-compliance with any Data Security
Obligation; and (iv) the Accelevation Parties and their respective subsidiaries have not
been required to notify any individual or data protection authority of any information
security breach, compromise or incident involving any Data, in each case, as would not,
singly or in the aggregate, have a Material Adverse Effect.
(ee)(i) The Accelevation Parties and each of their respective subsidiaries’ respective
information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, technology, data and databases (including Data and the
data of their respective customers, employees, suppliers, vendors and any third party data
maintained, stored or otherwise processed by or on behalf of any of the Accelevation
Parties or any of their respective subsidiaries) used in connection with the operation of
any of their
14
respective businesses (“IT Systems and Data”) are adequate for, and operate and
perform as required in connection with, the operation of such businesses as they are
currently conducted, free and clear of all bugs, errors, defects, Trojan horses, time bombs,
malware and other corruptants; (ii) the Accelevation Parties and each of their respective
subsidiaries have taken all technical and organizational measures necessary to maintain
and protect the IT Systems and Data used in all material respects in connection with the
operation of the Accelevation Parties’ and their respective subsidiaries’ businesses; (iii)
without limiting the foregoing, the Accelevation Parties and their respective subsidiaries
have established, maintained, implemented and complied in all material respects with,
reasonable information technology, information security, cyber security and data
protection controls, policies and procedures, including oversight, access controls,
encryption, technological and physical safeguards and business continuity/disaster
recovery and security plans, consistent with industry standards and practices, and as
required by Data Security Obligations, that are designed to protect against and prevent
breach, destruction, loss, unauthorized distribution, disclosure, use, access, disablement,
misappropriation or modification, or other compromise or misuse of or relating to any of
the IT Systems and Data (“Breach”); and (iv) there has been no such Breach, and the
Accelevation Parties and their respective subsidiaries have not been notified of and have
no knowledge of any event or condition that would reasonably be expected to result in,
any such Breach.
(ff)The Accelevation Parties and their respective subsidiaries have implemented and
maintained policies, practices, and procedures designed to prevent unlawful harassment,
discrimination, or retaliation in the workplace and have taken appropriate steps to ensure
compliance with such policies and procedures, and (i) neither the Accelevation Parties
nor their respective subsidiaries have had any material labor disputes and none currently
exists or, to the knowledge of the Accelevation Parties, is threatened; (ii) neither the
Accelevation Parties nor any of their respective subsidiaries has any knowledge of any
existing, threatened or imminent labor disturbance by the employees of any of its
principal vendors, partners or contractors; and (iii) the Accelevation Parties and their
respective subsidiaries are and have been in material compliance with all applicable laws
pertaining to employment and employment practices, wages and hours, terms and
conditions of employment, and immigration.
(gg)Any “Employee Benefit Plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the
Accelevation Parties, their respective subsidiaries or their “ERISA Affiliates” (as defined
below) (each, a “Plan”) is and has been operated in compliance with its terms and all
applicable laws, including ERISA and the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the “Code”), in all material
respects. No “reportable event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any Plan and no Plan, if terminated, would have any
“amount of unfunded benefit liabilities” (as defined under ERISA), as the fair market
value of the assets under
15
each Plan (excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan). Neither the Accelevation Parties, their respective
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any Plan, (ii) Sections 412 and 430, 4971, 4975 or 4980B of the Code or (iii)
Sections 302 and 303, 406, 4063 and 4064 of ERISA.  Each Plan that is intended to be
qualified under Section 401(a) of the Code is so qualified, and nothing has occurred,
whether by action or failure to act, that would reasonably be expected to cause the loss of
such qualification.  There is no pending audit or investigation by the Internal Revenue
Service (“IRS”), the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other governmental or other regulatory entity or agency with respect
to any Plan that could reasonably be expected to result in liability to the Accelevation
Parties or any of their respective subsidiaries.  Neither the Accelevation Parties nor any of
their respective subsidiaries have any “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial Accounting Standards 106).
“ERISA Affiliate” means, with respect to the Accelevation Parties or any of their
respective subsidiaries, any member of any group of organizations described in Sections
414(b), (c), (m) or (o) of the Code of which the Accelevation Parties or such subsidiary is
a member.
(hh)The Accelevation Parties and each of their respective subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are engaged;
neither the Accelevation Parties nor any of their respective subsidiaries has been refused
any insurance coverage sought or applied for; and neither the Accelevation Parties nor
any of their respective subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a
cost that would not, singly or in the aggregate, have a Material Adverse Effect.
(ii)The Accelevation Parties and each of their respective subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither of the
Accelevation Parties nor any of their respective subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(jj)The financial statements included in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus, together with the related schedules and notes thereto,
comply as to form in all material respects with the applicable accounting requirements of
the Securities Act and present fairly the consolidated
16
financial position of the Accelevation Parties and their respective subsidiaries as of the
dates shown and its results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States (“U.S. GAAP”) applied on a consistent basis
throughout the periods covered thereby except for any normal year-end adjustments in
Holdings LLC’s quarterly financial statements. The other financial information included
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus has
been derived from the accounting records of the Accelevation Parties and their respective
consolidated subsidiaries and presents fairly in all material respects the information
shown thereby. The pro forma financial statements and the related notes thereto included
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus
present fairly in all material respects the information shown therein, have been prepared
in accordance with the Commission’s rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described therein, and
the Accelevation Parties believe that the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. The statistical, industry-related and
market-related data included in each of the Registration Statement, the Time of Sale
Prospectus and the Prospectus are based on or derived from sources which the
Accelevation Parties reasonably and in good faith believe are reliable and accurate and
such data is consistent with the sources from which they are derived, in each case in all
material respects.
(kk)Grant Thornton LLP, who have certified certain financial statements of the
Accelevation Parties and their respective subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules filed with the Commission
as part of the Registration Statement and included in each of the Registration Statement,
the Time of Sale Prospectus and the Prospectus, is an independent registered public
accounting firm with respect to the Accelevation Parties within the meaning of the
Securities Act and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board (United States).
(ll)(i) The Accelevation Parties and each of their respective subsidiaries maintain a system of
internal accounting controls designed to provide reasonable assurance that transactions
are executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with U.S. GAAP and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. Since
the end of the Accelevation Parties’ most recent audited fiscal year, there has been (x) no
material weakness in the Accelevation Parties’ internal control over financial reporting
(whether or not remediated) and (y) no change in the Accelevation
17
Parties’ internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Accelevation Parties’ internal control over
financial reporting, other than as described in the Registration Statement, Time of Sale
Prospectus and Prospectus.
(mm)Except as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, the Accelevation Parties have not sold, issued or distributed any
shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities
Act, other than shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans or pursuant to outstanding options, rights or
warrants.
(nn)The Accelevation Parties and each of their respective subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed through the date of this
Agreement or have requested extensions thereof (except where the failure to file would
not, singly or in the aggregate, have a Material Adverse Effect) and have paid all taxes
required to be paid thereon (except for cases in which the failure to file or pay would not,
singly or in the aggregate, have a Material Adverse Effect, or, except as currently being
contested in good faith and for which reserves required by U.S. GAAP have been created
in the financial statements of the Accelevation Parties), and no tax deficiency has been
determined adversely to the Accelevation Parties or any of their respective subsidiaries
which, singly or in the aggregate, has had (nor do the Accelevation Parties or any of their
respective subsidiaries have any notice or knowledge of any tax deficiency which could
reasonably be expected to be determined adversely to the Accelevation Parties or their
respective subsidiaries and which could reasonably be expected to have) a Material
Adverse Effect.
(oo)From the time of initial confidential submission of the Registration Statement to
the Commission through the date hereof, the Company has been and is an “emerging
growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging
Growth Company”).
(pp)The Accelevation Parties have not alone engaged in any Testing-the-Waters
Communication with any person other than Testing-the-Waters Communications with the
consent of the Representatives with entities that are reasonably believed to be qualified
institutional buyers within the meaning of Rule 144A under the Securities Act or
institutions that are reasonably believed to be accredited investors within the meaning of
Rule 501 under the Securities Act and have not authorized anyone other than the
Representatives to engage in Testing-the-Waters Communications.  The Accelevation
Parties reconfirm that the Representatives have been authorized to act on their behalf in
undertaking Testing-the-Waters Communications.  The Accelevation Parties have not
distributed any Testing-the-Waters Communication that is a written communication
within the meaning of Rule 405 under the Securities Act other than those listed on
Schedule III hereto.  “Testing-the-Waters Communication” means any communication
with
18
potential investors undertaken in reliance on Section 5(d) or Rule 163B of the Securities
Act.
(qq)As of the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers, none of (i) the Time of Sale
Prospectus, (ii) any free writing prospectus, when considered together with the Time of
Sale Prospectus, and (iii) any individual Testing-the-Waters Communication, when
considered together with the Time of Sale Prospectus, included, includes or will include
an untrue statement of a material fact or omitted, omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(rr)        The Registration Statement, the Prospectus, the Time of Sale Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in which the
Prospectus, the Time of Sale Prospectus or any preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the Directed Share
Program.
(ss)        No consent, approval, authorization or order of, or qualification with, any
governmental body or agency, other than those obtained, is required in connection with
the offering of the Directed Shares in any jurisdiction where the Directed Shares are
being offered.
(tt)     The Company has specifically directed in writing the allocation of Shares to each
Participant in the Directed Share Program, and neither the Directed Share Underwriter
nor any other Underwriter has had any involvement or influence, directly or indirectly, in
such allocation decision.
(uu)The Company has not offered, or caused Morgan Stanley or any Morgan Stanley
Entity as defined in Section 12 to offer, Shares to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer’s or supplier’s level or type of business with the
Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
2.Representations and Warranties of the Selling Shareholders. Each Selling
Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a)This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Shareholder.
(b)The execution and delivery by such Selling Shareholder of, and the performance by such
Selling Shareholder of its obligations under, this Agreement and the Custody Agreement
signed by such Selling Shareholder and Olympus Growth Fund VIII LP, as Custodian,
relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody
Agreement”) (if applicable), will not
19
contravene any provision of applicable law, or the certificate of incorporation or bylaws
or other comparable governing or constituent documents of such Selling Shareholder (if
such Selling Shareholder is not a natural person), or any agreement or other instrument
binding upon such Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such Selling Shareholder,
except as would not, individually or in the aggregate, have a Material Adverse Effect or
material adverse effect on the Selling Shareholders ability to consummate the transactions
contemplated by each of the Registration Statement, the Time of Sale Prospectus and the
Prospectus, and no consent, approval, authorization or order of, or qualification with, any
governmental body, agency or court is required for the performance by such Selling
Shareholder of its obligations under this Agreement or the Custody Agreement (if
applicable), except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares or the rules and
regulations of FINRA.
(c)Such Selling Shareholder has, and on the Closing Date will have (after giving effect to
the Organizational Transactions), valid title to, or a valid “security entitlement” within
the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”)
in respect of, the Shares to be sold by such Selling Shareholder free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal right and
power, and all authorization and approval required by law, to enter into this Agreement
and the Custody Agreement (if applicable) and to sell, transfer and deliver the Shares to
be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d)The Custody Agreement (if applicable) has been duly authorized, executed and delivered
by such Selling Shareholder and is a valid and binding agreement of such Selling
Shareholder.
(e)Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co.
(“Cede”) or such other nominee as may be designated by the Depository Trust Company
(“DTC”), registration of such Shares in the name of Cede or such other nominee and the
crediting of such Shares on the books of DTC to securities accounts of the Underwriters
(assuming that neither DTC nor any such Underwriter has notice of any adverse claim
(within the meaning of Section 8-105 of the UCC to such Shares), (i) DTC shall be a
“protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC,
(ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (iii) no action based on any “adverse claim”,
within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against
the Underwriters with respect to such security entitlement; for purposes of this
representation, such Selling Shareholder may assume that when such payment, delivery
and crediting occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company’s share registry in
accordance with its certificate of incorporation,
20
bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within
the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of
the several Underwriters on the records of DTC will have been made pursuant to the
UCC.
(f)Such Selling Shareholder has delivered to the Representatives an executed lock-up
agreement in substantially the form attached hereto as Exhibit A.
(g)[Reserved.]
(h)The Registration Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the Commission thereunder,
the Time of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date, the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein in
the light of the circumstances under which they were made, not misleading, each broadly
available road show, if any, when considered together with the Time of Sale Prospectus,
does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading and the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph are limited in all respects to
statements or omissions made in reliance upon and in conformity with the information
relating to such Selling Shareholder furnished to the Company in writing by or on behalf
of such Selling Shareholder expressly for use in the Registration Statement, the Time of
Sale Prospectus or the Prospectus (with respect to each Selling Shareholder, the “Selling
Shareholder Information”).
(i)(i) Neither such Selling Shareholder nor any of its subsidiaries, or, to the knowledge of
such Selling Shareholder, any director, officer, employee, agent, representative, or
affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that
are:
(A)the subject of any Sanctions, or
(B)located, organized or resident in a country or territory
that is the subject of comprehensive territorial Sanctions
21
(including, without limitation, the so-called Donetsk People’s Republic,
the so-called Luhansk People’s Republic, or any other Covered Region of
Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba,
Iran, and North Korea).
(ii)Such Selling Shareholder and each of its subsidiaries (A) have
not, since the more recent of April 24, 2019 or ten years prior to the date of this
Agreement, engaged in, (B) are not now engaged in, and (C) will not engage in,
any dealings or transactions with any Person, or in any country or territory, that at
the time of the dealing or transaction is or was, or whose government is or was,
the subject of Sanctions.
(j)Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person:
(i)to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation, is, or
whose government is, the subject of Sanctions;
(ii)to fund or facilitate any money laundering or terrorist financing
activities; or
(iii)in any other manner that would cause or result in a violation of any
Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any
Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise);
provided, however, that the foregoing shall not apply with respect to the distribution of
the proceeds of the offering to any of such Selling Shareholder's indirect limited partners
once such proceeds are no longer under the control of such Selling Shareholder if prior to
such distribution such Selling Shareholder has no knowledge that such proceeds will be
used for any of the foregoing purposes.
(k)Such Selling Shareholder and its subsidiaries have conducted and will conduct their
businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering
Laws, and Sanctions, and no investigation, inquiry, action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving
such Selling Shareholder or any of its subsidiaries with respect to the Anti-Corruption
Laws, the Anti-Money Laundering Laws, or Sanctions is pending or, to the knowledge of
such Selling Shareholder, threatened.  Such Selling Shareholder and its subsidiaries and
affiliates have instituted and maintained and will continue to maintain policies and
procedures reasonably designed to promote and achieve compliance with the Anti-
Corruption Laws, the Anti-Money Laundering Laws, Sanctions, and with the
representations and warranties contained herein.
22
(l)Such Selling Shareholder will not, and will not permit any of its subsidiaries to, (i) be or
become a “covered foreign person”, as that term is defined in the Outbound Investment
Rules, or (ii) engage, directly or indirectly, in (A) a “covered activity” or a “covered
transaction”, as each such term is defined in the Outbound Investment Rules, (B) with
respect to any subsidiary of the Selling Shareholder that is not a U.S. Person (as defined
in the Outbound Investment Rules), any activity that would constitute a “covered
activity” or “covered transaction”, as each such term is defined in the Outbound
Investment Rules, if such subsidiary were a U.S. Person, (C) any other activity that would
cause the Underwriters to be in violation of the Outbound Investment Rules or cause the
Underwriters to be legally prohibited by the Outbound Investment Rules from performing
under this Agreement.
(m)Such Selling Shareholder represents and warrants that it is not (i) an employee benefit
plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the
Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under
Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
3.Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties contained in this Agreement, but subject to the terms and
conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller at
$17.055 per share (the “Purchase Price”) the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the number of Firm Shares to be sold by such Seller (as set forth on Schedule
I hereto) as the number of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, each Selling Shareholder, severally and not jointly, agrees to
sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, up to 4,500,000 Additional Shares at the Purchase Price,
provided, however, that the amount paid by the Underwriters for any Additional Shares shall be
reduced by an amount per share equal to any dividends declared by the Company and payable on
the Firm Shares but not payable on such Additional Shares.  The Representatives may exercise
this right on behalf of the Underwriters in whole or from time to time in part by giving written
notice not later than 30 days after the date of this Agreement.  Any exercise notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the allocation of such
Additional Shares among the Selling Shareholders shall be as set forth on Schedule I hereto (or,
if the option is exercised in part, pro rata based on each Selling Shareholder’s proportion of the
total Additional Shares), and the date on which such Additional Shares are to be purchased. 
Each purchase date must be at least one business day after the written notice is given and may
not be earlier than the Closing Date or later than ten business days after the date of such notice. 
Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares.  On each day,
if any, that Additional
23
Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing Date as the
number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
4.Terms of Public Offering. The Sellers are advised by the Representatives that the
Underwriters propose to make a public offering of their respective portions of the Shares as soon
after the Registration Statement and this Agreement have become effective as in the
Representatives’ judgment is advisable.  The Sellers are further advised by the Representatives
that the Shares are to be offered to the public initially at $18.00 per share (the “Public Offering
Price”) and to certain dealers selected by the Representatives at a price that represents a
concession not in excess of $0.567 per share under the Public Offering Price.
5.Payment and Delivery. Payment for the Firm Shares to be sold by each Seller
shall be made to such Seller in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on October 1, 2026, or at such other time on the same or such
other date, not later than October 2, 2026, as shall be designated in writing by the
Representatives.  The time and date of such payment are hereinafter referred to as the “Closing
Date.”
Payment for any Additional Shares shall be made to such Selling Shareholder in Federal
or other funds immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the date specified in the corresponding notice described in Section 3 or at such other
time on the same or on such other date, in any event not later than November 12, 2026, as shall
be designated in writing by the Representatives.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as the Representatives shall request not later than one full business day prior to
the Closing Date or the applicable Option Closing Date, as the case may be.  The Firm Shares
and Additional Shares shall be delivered to the Representatives on the Closing Date or an Option
Closing Date, as the case may be, for the respective accounts of the several Underwriters.  The
Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or
on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters,
(ii) in the case of Additional Shares, any dividend adjustment pursuant to Section 3, and (iii) any
withholding required by law.
6.Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell
the Shares to the Underwriters and the several obligations of the Underwriters to purchase and
pay for the Shares on the Closing Date are subject to the condition that the Registration
Statement shall have become effective not later than 4:00 p.m. (New York City time) on the date
hereof.
24
The several obligations of the Underwriters are subject to the following further
conditions:
(a)Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date:
(i)no order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceeding for such purpose or pursuant to Section 8A
under the Securities Act shall be pending before or, to the knowledge of the
Accelevation Parties, threatened by the Commission;
(ii)there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in
the rating accorded any of the securities of the Accelevation Parties or any of their
respective subsidiaries by any “nationally recognized statistical rating
organization,” as such term is defined in Section 3(a)(62) of the Exchange Act;
and
(iii)there shall not have occurred any event, effect or circumstance
that, individually or in the aggregate, has involved or is reasonably likely to
involve a change in the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Accelevation Parties and their respective
subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus
that, in the Representatives’ judgment, is material and adverse and that makes it,
in the Representatives’ judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus.
(b)Prior to the Closing Date:
(i)the Organizational Transactions shall have been duly
consummated at the respective times and on the terms contemplated by this
Agreement, the Registration Statement, the Time of Sale Prospectus and the
Prospectus; and
(ii)the Representatives shall have received a copy of the amended and
restated charter of the Company certified by the Secretary of State of the State of
Delaware, along with executed copies of the documents listed on Schedule IV
hereto, and such other evidence that the Organizational Transactions have been
consummated as the Representatives may reasonably request.
(c)The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of each of the Accelevation Parties, to the effect
set forth in Sections 6(a)(i) and 6(a)(ii), and to the effect that the representations and
warranties of the Accelevation Parties contained in this
25
Agreement are true and correct as of the Closing Date; and that the Accelevation Parties
have complied with all of the agreements and satisfied all of the conditions on their part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering each such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(d)The Underwriters shall have received on the Closing Date an opinion and negative
assurance letter of Kirkland & Ellis LLP, outside counsel for the Company, dated the
Closing Date, each in form and substance reasonably satisfactory to the Representatives.
(e)The Underwriters shall have received on the Closing Date an opinion letter of Kirkland &
Ellis LLP, counsel for the Selling Shareholders, dated the Closing Date, each in form and
substance reasonably satisfactory to the Representatives.
(f)The Underwriters shall have received on the Closing Date an opinion and negative
assurance letter of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, dated
the Closing Date, each in form and substance reasonably satisfactory to the
Representatives.
With respect to the negative assurance letters to be delivered pursuant to Sections 6(d)
and 6(f) above, Kirkland & Ellis LLP and Simpson Thacher & Bartlett LLP may state that their
opinions and beliefs are based upon their participation in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without independent check or
verification, except as specified. 
The opinions of Kirkland & Ellis LLP described in Sections 6(d) and 6(e) above shall be
rendered to the Underwriters at the request of the Company or one or more of the Selling
Shareholders, as the case may be, and shall so state therein.
(g)The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, from Grant Thornton LLP, independent public
accountants, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall
use a “cut-off date” not earlier than the date hereof.
(h)The Underwriters shall have received, on each of the date hereof and the Closing Date, a
certificate dated the date hereof or the Closing Date, as the case may be, and signed by
the chief financial officer of the Company, in his capacity as such, with respect to certain
financial and accounting information in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, in form and substance reasonably satisfactory to the
Representatives.
26
(i)The “lock-up” agreements, each substantially in the form attached hereto as Exhibit A
between the Representatives, the Selling Shareholders and certain securityholders,
officers and directors of the Accelevation Parties (the “Lock-Up Agreements”), shall be
in full force and effect on the Closing Date.
(j)The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to the Representatives on the applicable Option Closing Date of
the following:
(i)a certificate, dated the Option Closing Date and signed by an
executive officer of each of the Accelevation Parties, confirming that the
certificate delivered on the Closing Date pursuant to Section 6(c) hereof remains
true and correct as of such Option Closing Date;
(ii)an opinion and negative assurance letter of Kirkland & Ellis LLP,
outside counsel for the Company, dated the Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and otherwise to
the same effect as the opinion required by Section 6(d) hereof;
(iii)an opinion letter of Kirkland & Ellis LLP, outside counsel for the
Selling Shareholders, dated the Option Closing Date, relating to the Additional
Shares to be purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 6(e) hereof;
(iv)an opinion and negative assurance letter of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, dated the Option Closing Date,
relating to the Additional Shares to be purchased on such Option Closing Date
and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(v)a letter dated the Option Closing Date, in form and substance
satisfactory to the Representatives, from Grant Thornton LLP, independent public
accountants, substantially in the same form and substance as the letter furnished to
the Underwriters pursuant to Section 6(g) hereof; provided that the letter delivered
on the Option Closing Date shall use a “cut-off date” not earlier than two business
days prior to such Option Closing Date;
(vi)a certificate dated the Option Closing Date, in the form and
substance reasonably satisfactory to the Representatives, signed by the chief
financial officer of the Company, and otherwise to the same effect as the
certificate required by Section 6(h) hereof; and
(vii)such other documents as the Representatives may reasonably
request with respect to the good standing of the Accelevation Parties and their
respective subsidiaries, the due authorization and
27
issuance of the Additional Shares to be sold on such Option Closing Date and
other matters related to the issuance of such Additional Shares.
7.Covenants of the Accelevation Parties. Each of the Accelevation Parties covenants
with each Underwriter as follows, as applicable:
(a)To furnish to the Representatives, without charge, signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to furnish to
the Representatives in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and during the
period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale
Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Representatives may reasonably request.
(b)Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to the Representatives a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Representatives reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c)To furnish to the Representatives a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or
refer to any proposed free writing prospectus to which the Representatives reasonably
object.
(d)Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.
(e)If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the
Time of Sale Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition exist as a result of
which the Time of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances
when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading
or so that the
28
Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f)If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g)If required by applicable law, to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, or taxation in any jurisdiction where it is not now so
subject.
(h)To make generally available to the Company’s security holders and to the
Representatives as soon as practicable an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring after the
date of this Agreement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder (which may be
satisfied by filing with the Commission’s Electronic Data Gathering Analysis and
Retrieval System).
(i)To comply with all applicable securities and other laws, rules and regulations in each
jurisdiction in which the Directed Shares are offered in connection with the Directed
Share Program.
(j)The Company will promptly notify the Representatives if the Company ceases to be an
Emerging Growth Company at any time prior to the later of (i) completion
29
of the distribution of the Shares within the meaning of the Securities Act and (ii)
completion of the Restricted Period (as defined below).
(k)If at any time following the distribution of any Testing-the-Waters Communication that is
a written communication within the meaning of Rule 405 under the Securities Act there
occurred or occurs an event or development as a result of which such Testing-the-Waters
Communication included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at that subsequent time, not misleading,
the Accelevation Parties will promptly notify the Representatives and will promptly
amend or supplement, at their own expense, such Testing-the-Waters Communication to
eliminate or correct such untrue statement or omission.
(l)(i) Each of the Accelevation Parties also covenants with each Underwriter that, without
the prior written consent of the Representatives on behalf of the Underwriters, it will not,
and will not publicly disclose an intention to, during the period commencing on the date
hereof and ending immediately after the close of the Trading Day (as defined below)
occurring on the 180th day after the date of the Prospectus (the “180th Day”) or, if the
180th Day is not a Trading Day, ending immediately after the close of the last Trading
Day immediately preceding the 180th Day (such period of time between the date hereof
and, as the case may be, the 180th Day or the last Trading Day immediately preceding the
180th Day, referred to herein as the “Restricted Period”), (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (collectively, “Lock-Up Securities”),
including units of Holdings LLC, or (2) enter into any swap, loan or other arrangement
(including, without limitation, any short sale or the purchase or sale of, or entry into, any
put or call option, or combination thereof, forward or any other derivative transaction or
instrument, however described or defined) that transfers to another, in whole or in part,
directly or indirectly, any of the economic consequences of ownership of any Lock-Up
Securities, whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other Lock-Up Securities, in cash or
otherwise or (3) file or confidentially submit any registration statement with the
Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock. For purposes of this
Agreement, a “Trading Day” is a day on which the Nasdaq Stock Market (“Nasdaq”) is
open for the buying and selling of securities.
(ii)The restrictions contained in the preceding paragraph shall
not apply to (A) the Shares to be sold hereunder, (B) the issuance by the
Company of shares of Common Stock upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof as described in
each of the Time of Sale Prospectus and Prospectus, (C)
30
facilitating the establishment of a trading plan on behalf of a shareholder, officer
or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for
the transfer of shares of Class A Common Stock; provided that (1) such plan does
not provide for the transfer of Class A Common Stock during the Restricted
Period and (2) no public announcement, filing or report under the Exchange Act
shall be voluntarily made by any person in connection therewith during the
Restricted Period (other than general disclosure in Company periodic reports to
the effect that Company directors and officers may enter into such trading plans
from time to time) and, if any announcement, filing or report shall be legally
required during the Restricted Period, such announcement, filing or report shall
clearly indicate therein that none of the securities subject to such plan may be
transferred, sold, or otherwise disposed of pursuant to such plan until after
expiration of the Restricted Period, (D) grants of stock options, restricted stock,
restricted stock units or other equity awards and the issuance of shares of
Common Stock or securities convertible into or exercisable or exchangeable for
shares of Common Stock (whether upon the exercise of stock options or
otherwise) to the Company’s employees, officers, directors, advisors or
consultants pursuant to the terms of an equity compensation plan described in the
Registration Statement, Time of Sale Prospectus and Prospectus, (E) the filing of
any registration statement on Form S-8 relating to securities granted or to be
granted pursuant to any plan described in the Registration Statement, Time of
Sale Prospectus or Prospectus, (F) any shares or other equity issued in connection
with the Organizational Transactions, (G) any shares of Class A Common Stock
issued pursuant to any non-employee director stock plan or dividend
reinvestment plan referred to in the Registration Statement, the Time of Sale
Prospectus and the Prospectus or (H) the sale or issuance of or entry into an
agreement providing for the sale or issuance of Common Stock or securities
convertible into, exercisable for or which are otherwise exchangeable for or
represent the right to receive Common Stock in connection with (x) the
acquisition by the Company or any of its subsidiaries of the securities, business,
technology, property or other assets of another person or entity or pursuant to an
employee benefit plan assumed by the Company in connection with such
acquisition, and the issuance of any Common Stock or securities convertible into,
exercisable for or which are otherwise exchangeable for or represent the right to
receive Common Stock pursuant to any such agreement or (y) the Company’s
joint ventures, commercial relationships and other strategic transactions,
provided that the aggregate number of shares of Common Stock securities
convertible into, exercisable for or which are otherwise exchangeable for or
represent the right to receive Common Stock that the Company may sell or issue
or agree to sell or issue pursuant to this clause (H) shall not exceed 5% of the
total number of shares of Common Stock outstanding as of the Closing Date
immediately following the completion of the transactions
31
contemplated by this Agreement to be completed as of that date, including the
Organizational Transactions, and provided further that all recipients of any such
securities shall enter into a “lock-up” agreement, substantially in the form of
Exhibit A hereto covering the remainder of the Restricted Period.
(iii)If the Representatives, in their sole discretion, agree to
release or waive the restrictions on the transfer of Shares set forth in a Lock-Up
Agreement for an officer or director of the Accelevation Parties and provide the
Company with notice of the impending release or waiver at least three business
days before the effective date of the release or waiver, the Company agrees to
announce the impending release or waiver by a press release substantially in the
form of Exhibit B hereto through a major news service at least two business days
before the effective date of the release or waiver.
(m)The Accelevation Parties will use their best efforts to effect and maintain the listing of the
Shares on the Nasdaq.
(n)The Accelevation Parties will apply the net proceeds from the sale of the Shares in the
manner described under the caption “Use of Proceeds” in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
8.Covenants of the Sellers.  Each Seller, severally and not jointly, covenants with
each Underwriter as follows:
(a)Each Seller will deliver to each Underwriter (or its agent), prior to or at the Closing Date,
a properly completed and executed IRS Form W-9 or an IRS Form W-8, as appropriate,
together with all required attachments to such form.
(b)Each Seller that is not an individual will deliver to each Underwriter (or its agent), on or
prior to the date of execution of this Agreement, a properly completed and executed
Certification Regarding Beneficial Owners of Legal Entity Customers, together with
copies of identifying documentation, and each Seller undertakes to provide such
additional supporting documentation as each Underwriter may reasonably request in
connection with the verification of the foregoing Certification.
9.Expenses. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, each of the Accelevation Parties, jointly and
severally, agrees to pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement (except as otherwise provided herein), including: (i) the fees,
disbursements and expenses of the Accelevation Parties’ counsel and accountants, and counsel
for the Selling Shareholders, in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any free writing
32
prospectus prepared by or on behalf of, used by, or referred to by the Accelevation Parties and
amendments and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the
reasonable and documented cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 7(g), including filing fees and the reasonable and
documented fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all
filing fees and the reasonable and documented fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the offering of the
Shares by FINRA, provided that the amount payable by the Company with respect to fees and
disbursements of counsel for the Underwriters pursuant to subsections (iii) and (iv) shall not
exceed $50,000, (v) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all costs and expenses
incident to listing the Shares on the Nasdaq, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Accelevation Parties relating to
investor presentations on any “road show,” as defined in Rule 433(h) under the Securities Act (a
“road show”), undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Accelevation Parties and travel and lodging expenses of the
representatives and officers of the Accelevation Parties and any such consultants, (viii) the
document production charges and expenses associated with printing this Agreement, (ix) all fees
and disbursements of counsel incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program and (x) all other costs and expenses
incident to the performance of the obligations of the Accelevation Parties hereunder for which
provision is not otherwise made in this Section 9.  It is understood, however, that except as
provided in this Section 9, Section 11 entitled “Indemnity and Contribution”, Section 12 entitled
“Directed Share Program Indemnification” and the last paragraph of Section 14 below, the
Underwriters will pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising
expenses connected with any offers they may make and in connection with any road show
undertaken in connection with the marketing of the offering and the Shares, the travel, lodging
and meal expenses of the Underwriters; provided, however, that the Representatives and the
Accelevation Parties agree that the Accelevation Parties, jointly, and the Underwriters shall each
pay or cause to be paid 50% of the cost of any aircraft chartered or other transportation chartered
in connection with such road show.
33
The provisions of this Section 9 shall not supersede or otherwise affect any agreement
that the Accelevation Parties and/or the Selling Shareholders may otherwise have for the
allocation of such expenses among themselves.
10.Covenants of the Underwriters.  Each Underwriter, severally and not jointly,
covenants with the Accelevation Parties and the Selling Shareholders not to take any action that
would result in the Company being required to file with the Commission under Rule 433(d) a
free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of such Underwriter.
11.Indemnity and Contribution.  The Accelevation Parties, jointly and severally,
agree to indemnify and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act and their respective directors, officers, employees and agents from and against any
and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof, any preliminary
prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free
writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information
that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, any road show, the Prospectus or any amendment or supplement thereto, or any Testing-the-
Waters Communication, or arise out of, or are based upon, any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter
furnished to the Accelevation Parties in writing by such Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished
by the Underwriters through the Representatives consists of the information described as such in
paragraph (b) below.
(a)Each Selling Shareholder, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act
from and against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with defending
or investigating any such action or claim) that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus or any amendment or supplement thereto, any issuer free writing prospectus
as
34
defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, any road show, the Prospectus or any amendment or supplement thereto, or any
Testing-the-Waters Communication, or arise out of, or are based upon, any omission or
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with reference to the Selling
Shareholder Information relating to such Selling Shareholder. The liability of each
Selling Shareholder under the indemnity agreement contained in this paragraph shall be
limited to an amount equal to the aggregate net proceeds (after deducting underwriting
discounts and commissions but before deducting expenses) of the Shares sold by such
Selling Shareholder under this Agreement (with respect to each Selling Shareholder, the
“Selling Shareholder Proceeds”).
(b)Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Accelevation Parties, the Selling Shareholders, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Accelevation Parties or any Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Accelevation Parties to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Accelevation
Parties or the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any
amendment or supplement thereto, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the
following information under the caption “Underwriting” in the Time of Sale Prospectus
and the Prospectus: the concession figures in the third paragraph, the information
regarding sales to discretionary accounts in the seventh paragraph, the information
regarding stabilization and short positions in the first, second, sixth, ninth sentences of
the tenth paragraph and the information regarding internet distributions in the second and
third sentences of the twelfth paragraph (the “Underwriter Information”).
(c)In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to the
preamble to this Section 11, Section 11(a) or Section 11(b), such person (the
“indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party (for the avoidance of doubt, who shall not, without the consent of the
indemnified party, be the same counsel as counsel to the indemnifying party) to represent
the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding.  In any such proceeding, any indemnified party shall have the right to retain
its own counsel,
35
but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them.  It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are
affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii)
the fees and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Selling Shareholders and all persons, if any, who control any Selling
Shareholder within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred.  In the case of any such separate firm
for the Underwriters and such control persons and affiliates of any Underwriters, such
firm shall be designated in writing by the Representatives.  In the case of any such
separate firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company.  In the case of any
such separate firm for the Selling Shareholders and such control persons of any Selling
Shareholders, such firm shall be designated in writing by the Selling Shareholders.  The
indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. 
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement.  No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding, and does not
36
include a statement as to, or an admission of fault, wrongdoing, culpability or a failure to
act by or on behalf of any indemnified party.
(d)To the extent the indemnification provided for in the preamble to this Section 11, Section
11(a) or Section 11(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 11(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in
clause 11(d)(i) above but also the relative fault of the indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations.  The relative benefits received by the
Accelevation Parties and the Selling Shareholders on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed to be in
the same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each Seller and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on
the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. 
The relative fault of the Accelevation Parties and the Selling Shareholders on the one
hand and the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Accelevation Parties and the Selling Shareholders or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.  The Underwriters’ respective obligations to contribute
pursuant to this Section 11 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint. The liability of the Selling Shareholder
under the contribution agreement contained in this paragraph shall be limited to an
amount equal to the Selling Shareholder Proceeds.
(e)Each of the Accelevation Parties, the Selling Shareholders and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 11(d).  The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities referred to in
Section 11(d) shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses
37
reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim.  Notwithstanding the provisions of this Section 11,
no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.  No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.  The remedies
provided for in this Section 11 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(f)The indemnity and contribution provisions contained in this Section 11 and the
representations, warranties and other statements of the Accelevation Parties and the
Selling Shareholders contained in this Agreement shall remain operative and in full force
and effect regardless of any termination of this Agreement, any investigation made by or
on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of
any Underwriter and their respective directors, officers, employees and agents, by or on
behalf of any Selling Shareholder or any person controlling any Selling Shareholder, or
by or on behalf of the Accelevation Parties, their officers or directors or any person
controlling the Accelevation Parties and acceptance of and payment for any of the Shares.
12.Directed Share Program Indemnification.  (a) The Accelevation Parties, jointly
and severally, agree to indemnify and hold harmless Morgan Stanley, each person, if any, who
controls Morgan Stanley within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of Morgan Stanley within the meaning of
Rule 405 of the Securities Act (“Morgan Stanley Entities”) from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) (i)
that arise out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any material prepared by or with the consent of the Company for
distribution to Participants in connection with the Directed Share Program or arise out of, or are
based upon, any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) that arise out of, or are
based upon, the failure of any Participant to pay for and accept delivery of Directed Shares that
the Participant agreed to purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad faith or gross
negligence of Morgan Stanley Entities.
(b)In case any proceeding (including any governmental investigation) shall be instituted
involving any Morgan Stanley Entity in respect of which indemnity may be sought
pursuant to Section 12(a), the Morgan Stanley Entity seeking indemnity shall promptly
notify the Accelevation Parties in writing and the
38
Accelevation Parties, upon request of the Morgan Stanley Entity, shall retain counsel
reasonably satisfactory to the Morgan Stanley Entity to represent the Morgan Stanley
Entity and any others the Accelevation Parties may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.  In any
such proceeding, any Morgan Stanley Entity shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Morgan Stanley
Entity unless (i) the Accelevation Parties shall have agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include the Accelevation Parties and the Morgan Stanley Entity and
representation of all parties by the same counsel would be inappropriate due to actual or
potential differing interests between them.  The Accelevation Parties shall not, in respect
of the legal expenses of the Morgan Stanley Entities in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Morgan Stanley
Entities.  Any such separate firm for the Morgan Stanley Entities shall be designated in
writing by Morgan Stanley.  The Accelevation Parties shall not be liable for any
settlement of any proceeding effected without the written consent of the Accelevation
Parties, but if settled with such consent or if there be a final judgment for the plaintiff, the
Accelevation Parties, jointly and severally, agree to indemnify the Morgan Stanley
Entities from and against any loss or liability by reason of such settlement or judgment. 
Notwithstanding the foregoing sentence, if at any time a Morgan Stanley Entity shall
have requested the Accelevation Parties to reimburse it for fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, the Accelevation
Parties, jointly and severally, agree that such Accelevation Parties shall be liable for any
settlement of any proceeding effected without their written consent if (i) such settlement
is entered into more than 30 days after receipt by the Accelevation Parties of the aforesaid
request and (ii) the Accelevation Parties shall not have reimbursed the Morgan Stanley
Entity in accordance with such request prior to the date of such settlement.  The
Accelevation Parties shall not, without the prior written consent of Morgan Stanley,
effect any settlement of any pending or threatened proceeding in respect of which any
Morgan Stanley Entity is or could have been a party and indemnity could have been
sought hereunder by such Morgan Stanley Entity, unless such settlement includes an
unconditional release of the Morgan Stanley Entities from all liability on claims that are
the subject matter of such proceeding.
(c)To the extent the indemnification provided for in Section 12(a) is unavailable to a
Morgan Stanley Entity or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Accelevation Party shall contribute to the amount
paid or payable by the Morgan Stanley Entity as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Morgan Stanley Entities on the other hand from
the offering of the Directed Shares. If however the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
Accelevation Party shall contribute such
39
amount paid or payable by the Morgan Stanley Entities in such proportion as is
appropriate to reflect not only the relative benefits but also the relative fault of the
Accelevation Parties on the one hand and of the Morgan Stanley Entities on the other
hand in connection with any statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.  The relative
benefits received by the Accelevation Parties on the one hand and the Morgan Stanley
Entities on the other hand in connection with the offering of the Directed Shares shall be
deemed to be in the same respective proportions as the net proceeds from the offering of
the Directed Shares (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Morgan Stanley Entities
for the Directed Shares.  If the loss, claim, damage or liability is caused by an untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact, the relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement or the omission or alleged omission relates
to information supplied by the Accelevation Parties or by the Morgan Stanley Entities
and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(d)The Accelevation Parties and the Morgan Stanley Entities agree that it would not be just
or equitable if contribution pursuant to this Section 12 were determined by pro rata
allocation (even if the Morgan Stanley Entities were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 12(c).  The amount paid or payable by the Morgan
Stanley Entities as a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by the Morgan Stanley
Entities in connection with investigating or defending any such action or claim. 
Notwithstanding the provisions of this Section 12, no Morgan Stanley Entity shall be
required to contribute any amount in excess of the amount by which the total price at
which the Directed Shares distributed to the public were offered to the public exceeds the
amount of any damages that such Morgan Stanley Entity has otherwise been required to
pay.  The remedies provided for in this Section 12 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party at law
or in equity.
(e)The obligations of the Accelevation Parties under this Section 12 shall be in addition to
any liability which the Accelevation Parties may otherwise have. The indemnity and
contribution provisions contained in this Section 12 shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Morgan Stanley Entity or any Accelevation Party, its
officers or directors or any person controlling such Accelevation Party and (iii)
acceptance of and payment for any of the Directed Shares.
40
13.Termination.  The Underwriters may terminate this Agreement by notice given by
the Representatives to the Company and the Selling Shareholders, if after the execution and
delivery of this Agreement and prior to or on the Closing Date or any Option Closing Date, as
the case may be, (i) trading generally shall have been suspended or materially limited on, or by,
as the case may be, any of the New York Stock Exchange, the NYSE American, the Nasdaq, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and
which, singly or together with any other event specified in this clause (v), makes it, in the
Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus or the Prospectus.
14.Effectiveness; Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of
the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall
be obligated severally in the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule II bears to the aggregate number of Firm Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 14 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter.  If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to
the Representatives, the Company and the Selling Shareholders for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholders. 
In any such case either the Representatives or the relevant Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any
other documents or arrangements may be effected.  If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional
41
Shares and the aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be purchased on such
Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date
or (ii) purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such default.  Any action
taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Accelevation Parties or any Selling Shareholder to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the
Accelevation Parties or any Selling Shareholder shall be unable to perform its obligations under
this Agreement, the Accelevation Parties or such Selling Shareholder, as applicable, will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all reasonable and documented out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by such Underwriters
in connection with this Agreement or the offering contemplated hereunder.
15.Entire Agreement.  This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Shares, represents the entire agreement between the Accelevation
Parties and the Selling Shareholders, on the one hand, and the Underwriters, on the other, with
respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(a)The Accelevation Parties and each Selling Shareholder acknowledge that in connection
with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are not
agents of, and owe no fiduciary duties to, the Accelevation Parties, any of the Selling
Shareholders or any other person; (ii) the Underwriters owe the Accelevation Parties and
each Selling Shareholder only those duties and obligations set forth in this Agreement,
any contemporaneous written agreements and prior written agreements (to the extent not
superseded by this Agreement), if any; (iii) the Underwriters may have interests that
differ from those of the Accelevation Parties and each Selling Shareholder; and (iv) none
of the activities of the Underwriters in connection with the transactions contemplated
herein constitutes a recommendation, investment advice, or solicitation of any action by
the Underwriters with respect to any entity or natural person. The Accelevation Parties
and each Selling Shareholder waive to the full extent permitted by applicable law any
claims any of them may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares.
42
(b)Each Selling Shareholder further acknowledges and agrees that, although the
Underwriters may provide certain Selling Shareholders with certain Regulation Best
Interest and Form CRS disclosures or other related documentation in connection with the
offering, the Underwriters are not making a recommendation to any Selling Shareholder
to participate in the offering or sell any Shares at the Purchase Price, and nothing set forth
in such disclosures or documentation is intended to suggest that any Underwriter is
making such a recommendation.
16.Recognition of the U.S. Special Resolution Regimes. (a) In the event that any
Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and
obligation in or under this Agreement, will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a state of the United States.
(b)In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such
Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are
permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States.
For purposes of this Section 16, a “BHC Act Affiliate” has the meaning assigned to the
term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12
C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations
promulgated thereunder. 
17.Counterparts; Electronic Signatures.  This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile,
electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of
2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so
delivered shall be deemed to have been duly and validly delivered and be valid and effective for
all purposes.
43
18.Applicable Law.  This Agreement and any claim, controversy or dispute arising
under or related to this Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to principles of conflict of laws that would
result in the application of any other law than the laws of the State of New York.  Each of the
Representatives, the Accelevation Parties and the Selling Shareholders agrees that any suit or
proceeding arising in respect of this Agreement or any transaction contemplated by this
Agreement will be tried exclusively in the U.S. District Court for the Southern District of New
York or, if that court does not have subject matter jurisdiction, in any state court located in The
City and County of New York and each of the Representatives, the Accelevation Parties and the
Selling Shareholders agrees to submit to the jurisdiction of, and to venue in, such courts.
19.Waiver of Jury Trial. EACH OF THE ACCELEVATION PARTIES, THE
SELLING SHAREHOLDERS AND THE UNDERWRITERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
20.Binding Agreement. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Accelevation Parties, the Selling Shareholders and each person
who controls any Accelevation Party, Selling Shareholder or any Underwriter, or any director,
officer, employee, or affiliate of any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement.  No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
21.Tax Disclosures. Notwithstanding anything herein to the contrary, the
Accelevation Parties are authorized to disclose to any persons the U.S. federal and state income
tax treatment and tax structure of the potential transaction and all materials of any kind
(including tax opinions and other tax analyses) provided to the Accelevation Parties relating to
that treatment and structure, without the Underwriters imposing any limitation of any kind. 
However, any information relating to the tax treatment and tax structure shall remain confidential
(and the foregoing sentence shall not apply) to the extent necessary to enable any person to
comply with securities laws.  For this purpose, “tax structure” is limited to any facts that may be
relevant to that treatment.
22.Headings.  The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
23.Notices.  All communications hereunder shall be in writing and effective only
upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives
in care of Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention:
Equity Syndicate Desk, with a copy to the Legal Department and J.P. Morgan Securities LLC,
270 Park Avenue, New York, New York 10017, Attention:
44
Equity Syndicate Desk; if to the Company shall be delivered, mailed or sent to 9555 N.
Springboro Pike, Suite 400, Miamisburg, Ohio 45342, Attn: Michael Rubiera; and if to the
Selling Shareholders shall be delivered, mailed or sent to c/o Olympus Partners, Metro Center,
4th Floor, One Station Place, Stamford, CT 06902, Attn: Matt Boyd.
[Signature Pages Follow]
[Signature Page to Underwriting Agreement]
Very truly yours,
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Title:
Chief Executive Officer
ACCELEVATION LLC
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Title:
Chief Executive Officer
[Signature Page to Underwriting Agreement]
The Selling Shareholders named in Schedule I
hereto, acting severally
ACCELEVATION CASH PUBCO
HOLDINGS LP
By:
/s/ Matthew Boyd
Name:
Matthew Boyd
Title:
President
ACCELEVATION INVESTMENT
HOLDINGS LLC
By:
/s/ Matthew Boyd
Name:
Matthew Boyd
Title:
President
Accepted as of the date hereof
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
Acting severally on behalf of themselves and the
several Underwriters named in Schedule II hereto
By:
Morgan Stanley & Co. LLC
By:
/s/ Joe Nassirian
Name:
Joe Nassirian
Title:
Executive Director
By:
J.P. Morgan Securities LLC
By:
/s/ Michael Rhodes
Name:
Michael Rhodes
Title:
Managing Director
I-1
SCHEDULE I
Selling Shareholder
Number of Firm Shares
To Be Sold
Number of Additional Shares
To Be Sold
Accelevation Cash Pubco
Holdings LP
8,011,999
2,042,041
Accelevation Investment
Holdings LLC
11,988,001
2,457,959
Total:
20,000,000
4,500,000
II-1
SCHEDULE II
Underwriter
Number of Firm Shares To Be Purchased
Morgan Stanley & Co. LLC
7,211,727
J.P. Morgan Securities LLC
7,211,727
Goldman Sachs & Co. LLC
3,278,058
Barclays Capital Inc.
2,622,446
BofA Securities, Inc.
2,622,446
Houlihan Lokey Capital, Inc.
2,950,252
Robert W. Baird & Co. Incorporated
1,367,781
William Blair & Company, L.L.C.
1,367,781
Piper Sandler & Co.
820,669
Nomura Securities International, Inc.
519,758
WR Securities, LLC
27,355
Total:
30,000,000
III-1
SCHEDULE III
Time of Sale Prospectus
1.Preliminary Prospectus issued September 22, 2026
2.Orally communicated pricing information:
Firm Shares: 30,000,000
Additional Shares: 4,500,000
Public Offering Price per Share: $18.00
IV-1
SCHEDULE IV
Transaction Documents
1.Amended and Restated Certificate of Incorporation of the Company.
2.Operating Agreement of Accelevation Holdings LLC.
3.Exchange Agreement among the Company, Accelevation Holdings LLC, Instor Blocker,
Inc. and Accelevation Investment Holdings LLC.
4.Tax Receivable Agreement among the Company, Accelevation Holdings LLC and the
parties listed on Schedule A thereto.
Exhibit A-1
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
[●], 2026
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC and J.P. Morgan Securities
LLC, as representatives (the “Representatives”) of the several Underwriters named in Schedule
II to the Underwriting Agreement, propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Accelevation Holdings Corp., a Delaware corporation (the
“Company”), Accelevation LLC, a Delaware limited liability company, and certain selling
shareholders of the Company named in Schedule I thereto (the “Selling Shareholders”)
providing for the public offering (the “Public Offering”) by the several Underwriters, including
the Representatives (the “Underwriters”), of 30,000,000 shares (the “Shares”) of the Class A
common stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”).
As used herein, the term “Common Stock” refers to shares of the Company’s Class A Common
Stock and Class B common stock, par value $0.0001 per share (the “Class B Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, and will
not publicly disclose an intention to, during the period commencing on the date hereof and
ending immediately after the close of the Trading Day occurring on the 180th day after the date
of the final prospectus (the “Prospectus”) relating to the Public Offering (the “180th Day”) or,
if the 180th Day is not a Trading Day, ending immediately after the close of the last Trading Day
immediately preceding the 180th Day (such period of time between the date hereof and, as the
case may be, the 180th Day or the last Trading Day immediately preceding the 180th Day,
referred to herein as the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock owned or hereafter acquired by the undersigned or with respect to which
Exhibit A-2
the undersigned has or hereafter acquires the power of disposition, including, without limitation,
Common Stock or such other securities which may be deemed to be beneficially owned (as such
term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) and securities which may be issued upon exercise of a stock option or warrant by the
undersigned or any other securities so owned convertible into or exercisable or exchangeable for
Common Stock (collectively, the “Lock-Up Securities”), including units of Accelevation
Holdings LLC (“Holdings LLC”) (the “Units”) or (2) enter into any hedging, swap, loan or
other arrangement (including, without limitation, any short sale or the purchase or sale of, or
entry into, any put or call option, or combination thereof, forward or any other derivative
transaction or instrument, however described or defined) that transfers to another, in whole or in
part, directly or indirectly, any of the economic consequences of ownership of the Lock-Up
Securities, whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other Lock-Up Securities, in cash or otherwise. The
undersigned acknowledges and agrees that the foregoing precludes the undersigned from
engaging in any hedging or other transactions designed or intended, or which could reasonably
be expected to lead to or result in, a sale or disposition of any Lock-Up Securities, even if any
such sale or disposition transaction or transactions would be made or executed by or on behalf of
someone other than the undersigned. For purposes of this agreement, a “Trading Day” is a day
on which the Nasdaq Stock Market is open for the buying and selling of securities.
The foregoing shall not apply to the following:
(a)transactions relating to shares of Common Stock or other securities acquired from
the Underwriters in the Public Offering or in open market transactions after the completion of the
Public Offering; provided that no public report or filing with the Securities and Exchange
Commission (the “Commission”) or otherwise is required or voluntarily made during the
Restricted Period;
(b)transfers, dispositions or distributions of Lock-Up Securities: (i) as one or more
bona fide gifts, including, without limitation, to a charitable organization or educational
institution, or for bona fide estate planning purposes, (ii) by will, testamentary document or
intestacy, (iii) by operation of law, such as pursuant to a qualified domestic order, divorce
settlement, divorce decree or separation agreement, (iv) pursuant to an order of a court or
regulatory agency having jurisdiction over the undersigned, (v) to any corporation, partnership,
limited liability company or other entity of which the undersigned or the immediate family
member of the undersigned (as defined in FINRA Rule 5130(i)(5)) are the legal and beneficial
owner of all of the outstanding equity securities or similar interests, (vi) to any nominee or
custodian of a person or entity to whom a disposition or transfer would be permissible under
clauses (i) through (v) above, (vii) to any member of the undersigned’s immediate family or to
any trust, partnership, limited liability company or other entity for the direct or indirect benefit of
the undersigned and/or any member of the undersigned’s immediate family, or if the undersigned
is a trust, to a trustor or beneficiary of the trust or to the estate of the beneficiary of such trust,
(viii) to the Company upon the undersigned’s death, disability or termination of employment or
other service relationship with the Company, (ix) to the
Exhibit A-3
Company in connection with the vesting, settlement or exercise of restricted stock units, options,
warrants or other rights to purchase shares of Common Stock (including, in each case, by way of
“net” or “cashless” exercise), including any transfer to the Company for the payment of tax
withholdings or remittance payments due as a result of the vesting, settlement or exercise of such
restricted stock units, options, warrants or other rights, or the conversion of convertible
securities, in all such cases pursuant to equity awards granted under a stock incentive plan or
other equity award plan, each as described in the Registration Statement; provided that any
securities received upon such vesting, settlement, exercise or conversion shall be subject to the
terms of this agreement, or (x) with the prior written consent of the Representatives on behalf of
the Underwriters; provided that in the case of any transfer, disposition or distribution (1)
pursuant to clauses (i), (ii), (iii), (iv), (v), (vi) and (vii), each donee, devisee, trustee, distributee
or transferee, as the case may be, shall sign and deliver a lock-up agreement substantially in the
form of this agreement for the balance of the Restricted Period, (2) pursuant to clauses (i), (ii),
(iii), (v), (vi) and (vii), any such transfer shall not involve a disposition for value, (3) pursuant to
clauses (v), (vi) and (vii), such transfers are not required to be reported during the Restricted
Period in a filing with the Commission under Section 16(a) of the Exchange Act on Form 4 or
Form 5 (or, in the case of clauses (i), (ii), (iii) and (iv) above, any filing, if required, shall
indicate in the footnotes thereto that the filing relates to circumstances described in the relevant
clause), (4) pursuant to clauses (i), (ii), (iii), (viii) and (ix), the undersigned does not otherwise
voluntarily effect any public filing or report regarding such transfers, and (5) in the case of
clauses (viii) and (ix) above, that such Lock-Up Securities were issued to the undersigned
pursuant to an agreement or equity award granted pursuant to an employee benefit plan, option,
warrant or other right disclosed in the Prospectus;
(c)if the undersigned is not an individual, distributions of Lock-Up Securities to: (i)
another corporation, partnership, limited liability company or other business entity that is an
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended (the
“Securities Act”)) of the undersigned, or to any investment fund or other entity controlling,
controlled by, managing or managed by or under common control with the undersigned or
affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a
partnership, to its general partner or a successor partnership or fund, or any other funds managed
by such partnership), or (ii) as part of a distribution to limited partners, limited liability company
members or stockholders of the undersigned or holders of similar equity interests in the
undersigned; provided that in the case of any distribution pursuant to this clause, (1) each
distributee shall sign and deliver a lock-up agreement substantially in the form of this agreement
for the balance of the Restricted Period, (2) any such transfer shall not involve a disposition for
value, (3) such transfers are not required to be reported during the Restricted Period in a filing
with the Commission under Section 16(a) of the Exchange Act on Form 4 or Form 5, and (4) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such
transfers;
(d)establishing a trading plan pursuant to Rule 10b5-1 under the Exchange Act for
the transfer of shares of Class A Common Stock; provided that (1) such plan does not provide for
the transfer of Class A Common Stock during the Restricted Period and
1 NTD: To be included for Olympus.
Exhibit A-4
(2) no public announcement, filing or report under the Exchange Act shall be voluntarily made
by any person in connection therewith during the Restricted Period (other than general disclosure
in Company periodic reports to the effect that Company directors and officers may enter into
such trading plans from time to time) and, if any announcement, filing or report shall be legally
required during the Restricted Period, such announcement, filing or report shall clearly indicate
therein that none of the securities subject to such plan may be transferred, sold, or otherwise
disposed of pursuant to such plan until after expiration of the Restricted Period; [or]
(e)sales pursuant to the terms of the Underwriting Agreement[; or]
(f)[pledging, hypothecating or otherwise granting a security interest in Lock-Up
Securities to one or more banks, financial or lending institutions as collateral or security for any
loan, advance, margin loan or extension of credit or similar financing activity or arrangements
and any transfer upon foreclosure upon or enforcement of such Lock-Up Securities, provided,
that the undersigned or the Company, as the case may be, shall provide the Representatives prior
written notice informing them of any public filing, report or announcement with respect to such
pledge, hypothecation or other grant of a security interest].1
Notwithstanding the foregoing, clause (b)(1) above shall not apply with respect to any
transfer of shares of Common Stock to charitable organization transferees or recipients
(including any direct or indirect member or partner of the undersigned that receives such shares
of Common Stock pursuant to a distribution in-kind to such member or partner) in an aggregate
amount, together with any such transfers by the undersigned and the undersigned’s affiliates
pursuant to any substantially similar lock-up agreement with the Representatives, not to exceed
1.0% of the outstanding shares of Common Stock (treating as outstanding shares of Class A
Common Stock and Class B Common Stock). For the avoidance of doubt, any transfer of shares
of Common Stock to a charitable organization transferee or recipient that has agreed in writing to
be bound by the same terms described in this Lock-Up Agreement to the extent and for the
duration that such terms remain in effect at the time of the transfer shall not count towards the
percentage in the preceding sentence.
The restrictions set forth in this Lock-Up Agreement shall not apply to any exchange,
transfer or sale in connection with, and as contemplated by, the Organizational Transactions (as
such term is defined in the Underwriting Agreement).
In addition, the undersigned agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, it will not, during the Restricted Period, make any
demand for or exercise any right with respect to, the registration of any shares of Common
Stock, Units or any other security convertible into or exercisable or exchangeable for Common
Stock. 
Exhibit A-5
The undersigned also agrees and consents to the entry of stop transfer instructions with
the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of
Lock-Up Securities except in compliance with the foregoing restrictions.
[If the undersigned is an officer or director of the Company, the undersigned further
agrees that the foregoing restrictions shall be equally applicable to any issuer-directed Shares the
undersigned may purchase in the offering.]
If the undersigned is an officer or director of the Company, (i) the Representatives agree
that, at least three business days before the effective date of any release or waiver of the
foregoing restrictions in connection with a transfer of shares of Class A Common Stock or other
Lock-Up Securities, the Representatives will notify the Company of the impending release or
waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the
impending release or waiver by press release through a major news service (or such other method
that satisfies the requirements of FINRA Rule 5131(d)(2)) at least two business days before the
effective date of the release or waiver.  Any release or waiver granted by the Representatives
hereunder to any such officer or director shall only be effective two business days after the
publication date of such press release.  The provisions of this paragraph will not apply if (a) the
release or waiver is effected solely to permit a transfer not for consideration or that is to an
immediate family member as defined in FINRA Rule 5130(i)(5) and (b) the transferee has agreed
in writing to be bound by the same terms described in this agreement to the extent and for the
duration that such terms remain in effect at the time of the transfer.
The undersigned hereby represents and warrants that the undersigned has full power,
capacity and authority to enter into this agreement. The undersigned understands that the
Company and the Underwriters are relying upon this agreement in proceeding toward
consummation of the Public Offering.  The undersigned further understands that this agreement
is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors
and assigns.
The undersigned acknowledges and agrees that the Underwriters have not provided any
recommendation or investment advice nor have the Underwriters solicited any action from the
undersigned with respect to the Public Offering and the undersigned has consulted their own
legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The
undersigned further acknowledges and agrees that, although the Underwriters may provide
certain Regulation Best Interest and Form CRS disclosures or other related documentation to you
in connection with the Public Offering, the Underwriters are not making a recommendation
to you to participate in the Public Offering or sell any Shares at the price determined in the
Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest
that any Underwriter is making such a recommendation.
Whether or not the Public Offering actually occurs depends on a number of factors,
including market conditions.  Any Public Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between the Company
and the Underwriters.
Exhibit A-6
[In the event that a Representative withdraws or is terminated from, or declines to
participate in, the Public Offering, all references in this agreement to the Representatives shall
refer to the remaining Representative. If all Representatives withdraw, are terminated from or
decline to participate in the Public Offering, all references in this agreement to the
Representatives shall refer to the lead left book runner in the Public Offering (“Replacement
Entity”), and in such event, any written consent, waiver or notice given or delivered in
connection with this agreement by or to such Replacement Entity shall be deemed to be
sufficient and effective for all purposes under this agreement.]
This agreement shall automatically terminate and be of no further effect upon the earliest
to occur, if any, of: (i) the date of filing with the Commission of a notice of withdrawal of the
registration statement on Form S-1 related to the Public Offering pursuant to Rule 477
promulgated under the Securities Act, prior to its effectiveness, (ii) the date that the Company
advises the Representatives in writing prior to the execution of the Underwriting Agreement that
it has determined not to proceed with the Public Offering, (iii) the date that the Representatives
advise the Company in writing prior to the execution of the Underwriting Agreement that they
have determined not to proceed with the Public Offering, (iv) the date that the Underwriting
Agreement (other than the provisions thereof that survive termination) terminates or is
terminated prior to payment for and delivery of any Shares to be sold thereunder (other than
pursuant to the Underwriters’ option thereunder to purchase Additional Shares), and (v) March
31, 2027, in the event that the Underwriting Agreement has not been executed on or before that
date.
This agreement and any claim, controversy or dispute arising under or related to this
agreement shall be governed by and construed in accordance with the laws of the State of New
York.
This agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute one and the same
agreement. Electronic signatures complying with the New York Electronic Signatures and
Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable
law will be deemed original signatures for purposes of this agreement. Transmission by telecopy,
electronic mail or other transmission method (including .pdf or any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or
www.echosign.com) of an executed counterpart of this agreement will constitute due and
sufficient delivery of such counterpart.
[Signature Pages Follow]
[Signature Page to Lock-Up Agreement]
Very truly yours,
(Name)
(Address)
Exhibit B-1
EXHIBIT B
FORM OF WAIVER OF LOCK-UP
[●], 2026
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to the representatives of the several underwriters in
connection with the offering by Accelevation Holdings Corp. (the “Company”) and certain
selling shareholders of the sCompany, of [●] shares of Class A common stock, par value $0.0001
per share (the “Common Stock”), of the Company and the lock-up agreement dated [●], 2026
(the “Lock-Up Agreement”), executed by you in connection with such offering, and your
request for a [waiver] [release] dated [●], 202[●], with respect to [●] shares of Common Stock
(the “Shares”).
Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC hereby agree to [waive]
[release] the transfer restrictions set forth in the Lock-Up Agreement, but only with respect to the
Shares, effective [●], 20[26]; provided, however, that such [waiver] [release] is conditioned on
the Company announcing the impending [waiver] [release] by press release through a major
news service at least two business days before effectiveness of such [waiver] [release].  This
letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-Up Agreement shall remain in
full force and effect.
[Signature Page Follows]
Exhibit B-2
Very truly yours,
Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC
Acting severally on behalf of themselves and
the several Underwriters named in Schedule
II to the Underwriting Agreement
By:
Name:
Title:
cc:  Company
Exhibit B-3
FORM OF PRESS RELEASE
Accelevation Holdings Corp.
[Date]
Accelevation Holdings Corp. (the “Company”) announced today that Morgan Stanley & Co.
LLC and J.P. Morgan Securities LLC, the lead book-running managers in the Company’s recent
public sale of [●] shares of its Class A common stock are [waiving][releasing] a lock-up
restriction with respect to [●] shares of the Company’s Class A common stock held by [certain
officers or directors] [an officer or director] of the Company.  The [waiver][release] will take
effect on [●], 202[●], and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any
other jurisdiction where such offer is prohibited, and such securities may not be offered or
sold in the United States absent registration or an exemption from registration under the
United States Securities Act of 1933, as amended.
EX-3.1 3 exhibit31-8xkxarcharter.htm EX-3.1 Exhibit 3.1 - 8-K - A&R Charter
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCELEVATION HOLDINGS CORP.
* * * * *
Accelevation Holdings Corp., a corporation duly organized and existing under and by virtue of
the provisions of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY as follows:
FIRST: The present name of the Corporation is Accelevation Holdings Corp. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State
of Delaware on June 15, 2026 (the “Certificate of Incorporation”).
SECOND: The Board of Directors of the Corporation, pursuant to a unanimous written consent,
duly adopted resolutions authorizing the Corporation to amend and restate the Certificate of
Incorporation in its entirety to read as set forth in Exhibit A attached hereto and made a part
hereof (the “Amended and Restated Certificate”).
THIRD: The Amended and Restated Certificate restates and integrates and further amends the
Certificate of Incorporation.
FOURTH: The stockholders of the Corporation approved and adopted the Amended and
Restated Certificate by written consent in accordance with Section 228 of the General
Corporation Law of the State of Delaware.
FIFTH: The Amended and Restated Certificate has been duly adopted in accordance with
Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
* * * * *
Signature Page to Amended and Restated
Certificate of Incorporation of Accelevation Holdings Corp.
IN WITNESS WHEREOF, Accelevation Holdings Corp. has caused this Amended and Restated
Certificate of Incorporation to be executed by its duly authorized officer on this 29th day of
September, 2026.
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Title:
Chief Executive Officer
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCELEVATION HOLDINGS CORP.
ARTICLE ONE
The name of the corporation is Accelevation Holdings Corp. (the “Corporation”).
ARTICLE TWO
The address of the Corporation’s registered office in the State of Delaware is 1209 Orange
Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE THREE
The nature and purpose of the business of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation Law of the
State of Delaware (“DGCL”).
ARTICLE FOUR
Section 1.Authorized Shares. The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 1,100,000,000 shares, consisting of three
classes as follows:
1.100,000,000 shares of Preferred Stock, par value $0.0001 per share (the “Preferred
Stock”);
2.500,000,000 shares of Class A common stock, par value $0.0001 per share (the “Class A
Common Stock”); and
3.500,000,000 shares of Class B common stock, par value $0.0001 per share (the “Class B
Common Stock” and together with the Class A Common Stock, the “Common Stock”).
The Preferred Stock and the Common Stock shall have the designations, rights, powers, and
preferences and the qualifications, restrictions, and limitations thereof, if any, set forth below.
Section 2.Preferred Stock. The Board of Directors of the Corporation (the “Board”) is
authorized, subject to limitations prescribed by law, to provide, by resolution or resolutions for
the issuance of shares of Preferred Stock in one or more series, and with respect to each series, to
establish the number of shares to be included in each such series, and to fix the voting powers (if
any), designations, powers, preferences, and relative, participating, optional, or other special
rights, if any, of the shares of each such series, and any qualifications, limitations, or restrictions
4
thereof, including dividend rights, conversion rights, voting rights, terms of redemption, and
liquidation preferences, any or all of which may be greater than the rights of the Common Stock.
The powers (including voting powers), preferences, and relative, participating, optional, and
other special rights of each series of Preferred Stock and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series at any time
outstanding. Subject to the rights of the holders of any series of Preferred Stock, the number of
authorized shares of Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding), without the separate vote of the holders of the Preferred Stock
as a class, irrespective of the provisions of Section 242(b)(2) of the DGCL. For the avoidance of
doubt, and notwithstanding the foregoing, the Corporation shall be governed by Section 242(d)
of the DGCL.
Section 3.Common Stock.
(a)Voting Rights. Except as otherwise required by the DGCL or as provided
by or pursuant to the provisions of this Certificate of Incorporation (as amended and/or restated
from time to time, including pursuant to any certificate of designation relating to any series of
Preferred Stock, the “Certificate”):
(i)Each holder of Class A Common Stock shall be entitled to one
vote for each share of Class A Common Stock held of record by such holder on all matters to be
voted upon by stockholders of the Corporation.
(ii)Each holder of Class B Common Stock shall be entitled to one vote
for each share of Class B Common Stock held of record by such holder on all matters to be voted
upon by stockholders of the Corporation.
(iii)Except as otherwise required in this Certificate or by applicable
law, the holders of Class A Common Stock and Class B Common Stock shall vote together as a
single class on all matters on which stockholders of the Corporation are generally entitled to vote
(and, if any holders of Preferred Stock are entitled to vote together with the holders of Common
Stock, as a single class with such holders of Preferred Stock); provided, however, that, except as
otherwise required by law or this Certificate, the holders of Common Stock, as such, shall not be
entitled to vote on any amendment to this Certificate (including any certificate of designation
relating to any series of Preferred Stock) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to vote thereon pursuant
to this Certificate (including any certificate of designation relating to any series of Preferred
Stock) or pursuant to the DGCL. Subject to the rights of the holders of any series of Preferred
Stock, the number of authorized shares of Class A Common Stock or Class B Common Stock
may be increased or decreased (but not below the number of shares thereof then outstanding)
without the separate vote of the holders of the Class A Common Stock or Class B Common
Stock, as applicable, irrespective of the provisions of Section 242(b)(2) of the DGCL. For the
avoidance of doubt, the Corporation does not intend by the foregoing sentence to opt out of the
provisions of Section 242(d) of the DGCL, and intends that Section 242(d) be applicable to the
Corporation.
5
(iv)The holders of shares of Common Stock shall not have cumulative
voting rights.
(b)Dividends. Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or any class or series of stock having a preference
over or the right to participate with the Class A Common Stock with respect to the payment of
dividends in cash, stock, or property of the Corporation, such dividends may be declared and
paid on the Class A Common Stock out of the assets of the Corporation that are by law available
therefor at such times and in such amounts as the Board in its discretion shall determine.
Dividends shall not be declared or paid on the Class B Common Stock.
(c)Liquidation, Dissolution, etc. In the event of any voluntary or involuntary
liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation as required by law and
of the preferential and other amounts, if any, to which the holders of Preferred Stock or any class
or series of stock having a preference over or the right to participate with the Class A Common
Stock shall be entitled, the holders of all outstanding shares of Class A Common Stock shall be
entitled to participate in the distribution of the remaining assets of the Corporation available for
distribution to holders of Class A Common Stock ratably in proportion to the number of shares
held by each such stockholder. The holders of shares of Class B Common Stock, as such, shall
not be entitled to receive any assets of the Corporation in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the affairs of the Corporation.
(d)Reclassification. Neither the Class A Common Stock nor the Class B
Common Stock may be subdivided, split, combined, consolidated, reclassified, or otherwise
changed unless contemporaneously therewith the other class of Common Stock and the common
units of Accelevation Holdings LLC, a Delaware limited liability company (such units, the “LLC
Units”), are subdivided, split, combined, consolidated, reclassified, or otherwise changed in the
same proportion and in the same manner.
(e)Exchange. The holders of LLC Units other than the Corporation shall, to
the extent provided in the Exchange Agreement and the LLC Agreement (each, defined below)
and in accordance with the terms and conditions of the Exchange Agreement and the LLC
Agreement, as applicable, have the right to exchange the Class B Common Stock and the LLC
Units held by them for the number of fully paid and nonassessable shares of Class A Common
Stock determined in accordance with the terms of the Exchange Agreement. Upon the exchange
of an LLC Unit for one share of Class A Common Stock in accordance with the terms and
conditions of the Exchange Agreement and the LLC Agreement, as applicable, one share of
Class B Common Stock held by the exchanging holder shall automatically and without further
action on the part of the Corporation be transferred to the Corporation for no consideration, and
shall be automatically retired and cancelled and shall no longer be issued or outstanding and may
not be reissued and shall return to the status of authorized but unissued shares of Class B
Common Stock. The Corporation shall at all times when any shares of Class B Common Stock
and LLC Units shall be outstanding, reserve and keep available out of its authorized but unissued
Class A Common Stock such number of shares of the Class A Common Stock as shall from time
6
to time be sufficient to effect the exchange of all outstanding shares of Class B Common Stock
and LLC Units into shares of Class A Common Stock in accordance with the terms of the
Exchange Agreement and the LLC Agreement. If at any time the number of authorized but
unissued shares of Class A Common Stock shall not be sufficient to effect the exchange of all
outstanding LLC Units, the Corporation will take such corporate actions within its power as may,
in the opinion of its counsel, be necessary to cause this Certificate to be amended so as to
increase the number of authorized shares of Class A Common Stock to such number as shall be
sufficient for such purpose. “Exchange Agreement” means that certain Exchange Agreement,
dated on or about the date hereof, among the Corporation, Instor Blocker, Inc., Accelevation
Holdings LLC, and holders of LLC Units party thereto, as it may be amended and/or restated
from time to time, a copy of which is available from the Corporation upon request and without
cost. “LLC Agreement” means that certain Limited Liability Company Agreement of
Accelevation Holdings LLC, dated on or about the date hereof, as it may be amended and/or
restated from time to time, a copy of which is available from the Corporation upon request and
without cost.
(f)Automatic Transfer. No share of Class B Common Stock may be sold,
exchanged, or otherwise transferred, other than in connection with (i) the original issuance of the
Class B Common Stock to the holders of LLC Units of Accelevation Holdings LLC pursuant to
the Exchange Agreement, (ii) the exchange of an LLC Unit as set forth in Section 3(e) of
ARTICLE FOUR hereof and in the Exchange Agreement and the LLC Agreement, and (iii) the
transfer of an LLC Unit by a holder of LLC Units to “Permitted Transferees” of such holder as
defined in the LLC Agreement. In the event that any outstanding shares of Class B Common
Stock are sold, exchanged, or otherwise transferred other than as provided in the foregoing
clauses (i), (ii), and (iii) or such outstanding shares of Class B Common Stock shall otherwise
cease to be held by a holder of a corresponding number, based on the exchange rate then in
effect, of LLC Units (including a transferee of an LLC Unit) for any reason, such shares of Class
B Common Stock shall upon such sale, exchange, or other transfer, or upon ceasing to be held by
such holder, automatically and without further action on the part of the Corporation or any holder
of Class B Common Stock be transferred to the Corporation for no consideration and thereupon
shall be automatically retired and cancelled and shall no longer be issued or outstanding and may
not be reissued and shall return to the status of authorized but unissued shares of Class B
Common Stock. Certificates representing outstanding shares of Class B Common Stock shall
contain a legend referencing the restrictions of transfers set forth herein.
ARTICLE FIVE
Section 1.Board of Directors. Except as otherwise provided in this Certificate or the DGCL,
the business and affairs of the Corporation shall be managed by or under the direction of the
Board.
Section 2.Number of Directors. Subject to any rights of the holders of any series of
Preferred Stock then outstanding to elect additional directors under specified circumstances or
otherwise, the number of directors which shall constitute the Board shall be nine and, thereafter,
shall be fixed from time to time exclusively by resolution of the Board; provided that, before the
7
Board Trigger Date (as defined herein), the size of the Board may also be fixed by the holders of
a majority of the voting power present or represented by proxy at a duly convened meeting of
stockholders or by a consent of stockholders in lieu of a meeting in accordance with Section 228
of the DGCL; provided, further, that the number of directors shall not be increased or decreased
without the prior written consent of the Principal Stockholder (as defined herein) for so long as
the Director Nomination Agreement dated on or about the IPO Date, as amended, restated,
modified, and/or supplemented from time to time (the “Director Nomination Agreement”), a
copy of which is available from the Corporation upon request and without cost, remains in effect.
Section 3.Classes of Directors. The directors of the Corporation, other than those who may
be elected by the holders of any series of Preferred Stock, shall be divided into three classes,
hereby designated Class I, Class II and Class III.
Section 4.Election and Term of Office. Subject to the rights of the holders of any series of
Preferred Stock then outstanding and subject to Section 7 of this ARTICLE FIVE, the directors
shall be elected by a plurality of the votes cast. The term of office of the initial Class I directors
shall expire at the first annual meeting of stockholders following the date the Class A Common
Stock is first publicly traded (the “IPO Date”), the term of office of the initial Class II directors
shall expire at the second annual meeting of stockholders after the IPO Date, and the term of
office of the initial Class III directors shall expire at the third annual meeting of the stockholders
after the IPO Date. The Board may assign directors already in office to Class I, Class II, and
Class III. At each annual meeting of stockholders after the IPO Date, directors elected to replace
those of a class whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting after their election and until their respective successors shall
have been duly elected and qualified. Each such director shall hold office until the annual
meeting of stockholders for the year in which such director’s term expires and a successor is duly
elected and qualified or until his or her earlier death, resignation, or removal. Nothing in this
Certificate shall preclude a director from serving consecutive terms. Elections of directors need
not be by written ballot unless the Bylaws of the Corporation (as amended and/or restated, the
“Bylaws”) shall so provide.
Section 5.Newly Created Directorships and Vacancies. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board resulting from
death, resignation, disqualification, removal from office, or any other cause may be filled by the
affirmative vote of the majority of the remaining directors then in office, even if less than a
quorum, or by a sole remaining director, and may not be filled in any other manner; provided
that, before the Board Trigger Date, vacant and newly created directorships may also be filled by
a plurality vote of the stockholders entitled to vote thereon at a duly convened meeting of
stockholders or by a consent of a majority in voting power of the stock entitled to vote thereon in
accordance with Section 228 of the DGCL; and further provided that any vacancy or newly
created directorship relating to a director entitled to be nominated by the Principal Stockholder
pursuant to the Director Nomination Agreement may only be filled with the person nominated by
the Principal Stockholder. A director elected or appointed to fill a vacancy shall serve for the
unexpired term of his or her predecessor in office and until his or her successor is elected and
8
qualified or until his or her earlier death, resignation, or removal. A director elected or appointed
to fill a position resulting from an increase in the number of directors shall hold office until the
next election of the class for which such director shall have been elected or appointed and until
his or her successor is elected and qualified, or until his or her earlier death, resignation, or
removal. No decrease in the authorized number of directors shall shorten the term of any
incumbent director.
Section 6.Removal and Resignation of Directors. Notwithstanding any other provision of
this Certificate, (i) prior to the Board Trigger Date, directors may be removed with or without
cause upon the affirmative vote of stockholders representing at least a majority of the Voting
Stock (as defined herein) of the Corporation, voting together as a single class and (ii) on and
after the Board Trigger Date, directors may only be removed for cause and only upon the
affirmative vote of stockholders representing at least 66 2/3% of the voting power of the then
outstanding shares of Voting Stock of the Corporation, voting together as a single class. Any
director may resign at any time upon notice in writing or by electronic transmission to the
Corporation. “Board Trigger Date” means the first date on which the Principal Stockholder and
the Principal Stockholder Affiliates (as defined herein) cease to beneficially own in the aggregate
(directly or indirectly) at least 40% of the outstanding shares of Class A Common Stock
(determined assuming that each LLC Unit owned by holders other than the Corporation were
exchanged for Class A Common Stock in accordance with the terms and conditions of the
Exchange Agreement and the LLC Agreement, as applicable). “Principal Stockholder” means
Olympus Partners, LP. “Principal Stockholder Affiliates” means (a) in respect of the Principal
Stockholder, any entity that controls, is controlled by or is under common control with such
Principal Stockholder (other than the Corporation and any entity that is controlled by the
Corporation) and any investment funds managed by such Principal Stockholder or any of its
affiliates and (b) in respect of the Corporation, any entity controlled by the Corporation.
“Control” is defined in Section 4 of ARTICLE NINE.
Section 7.Rights of Holders of Preferred Stock. Notwithstanding the provisions of this
ARTICLE FIVE, whenever the holders of one or more series of Preferred Stock shall have the
right, voting separately or together by series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other features of such
directorship shall be subject to the rights of such series of Preferred Stock. During any period
when the holders of any series of Preferred Stock, voting separately as a series or together with
one or more series, have the right to elect additional directors, then upon commencement and for
the duration of the period during which such right continues (i) the then otherwise total
authorized number of directors of the Corporation shall automatically be increased by such
specified number of directors, and the holders of such Preferred Stock shall be entitled to elect
the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such
additional director shall serve until such director’s successor shall have been duly elected and
qualified, or until such director’s right to hold such office terminates pursuant to said provisions,
whichever occurs earlier, subject to his or her earlier death, resignation, disqualification, or
removal. Except as otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such right to elect
additional directors are divested of such right pursuant to the provisions of such stock, the terms
9
of office of all such additional directors elected by the holders of such stock, or elected to fill any
vacancies resulting from the death, resignation, disqualification, or removal of such additional
directors, shall forthwith terminate (in which case each such director thereupon shall cease to be
qualified as, and shall cease to be, a director), and the total authorized number of directors of the
Corporation shall automatically be reduced accordingly.
Section 8.Advance Notice. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of the stockholders of
the Corporation shall be given in the manner provided in the Bylaws.
Section 9.Chair of the Board. So long as the Principal Stockholder beneficially owns in the
aggregate (directly or indirectly) at least 30% or more of the Voting Stock of the Corporation, the
Chair of the Board shall be designated solely by the Principal Stockholder.
ARTICLE SIX
Section 1.Limitation of Liability.
(a)To the fullest extent permitted by the DGCL as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent such
amendment permits the Corporation to provide broader exculpation than permitted prior thereto),
no director or officer of the Corporation shall be liable to the Corporation or its stockholders for
monetary damages arising from a breach of fiduciary duty as a director or officer.
(b)Any amendment, repeal, or modification of the foregoing paragraph shall
not adversely affect any right or protection of a director or officer of the Corporation existing at
the time of such amendment, repeal, or modification, with respect to any act, omission, or other
matter occurring prior to such amendment, repeal, or modification. Solely for purposes of
Sections 1(a) and 1(b) of this ARTICLE SIX, “officer” has the meaning provided in Section
102(b)(7) of the DGCL.
ARTICLE SEVEN
Section 1.Action by Written Consent. Prior to the first date on which the Principal
Stockholder and the Principal Stockholder Affiliates (as defined herein) cease to beneficially
own in the aggregate (directly or indirectly) at least 35% of the outstanding shares of Class A
Common Stock (determined assuming that each LLC Unit owned by holders other than the
Corporation were exchanged for Class A Common Stock in accordance with the terms and
conditions of the Exchange Agreement and the LLC Agreement, as applicable) (the “Consent
Trigger Date”), any action which is required or permitted to be taken by the Corporation’s
stockholders may be taken without a meeting, without prior notice, and without a vote if a
consent or consents in writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares of the Corporation’s stock entitled
to vote thereon were present and voted. On and after the Consent Trigger Date, any action
required or permitted to be taken by the Corporation’s stockholders may be taken only at a duly
10
called annual or special meeting of the Corporation’s stockholders and the power of stockholders
to act by consent in writing without a meeting is specifically denied; provided, however, that any
action required or permitted to be taken by the holders of Preferred Stock, voting separately as a
series or separately as a class with one or more other such series, may be taken without a
meeting, without prior notice, and without a vote, to the extent expressly so provided in the
resolutions creating such series of Preferred Stock.
Section 2.Special Meetings of Stockholders. Subject to the rights of the holders of any
series of Preferred Stock then outstanding and to the requirements of applicable law, special
meetings of stockholders of the Corporation may be called only (i) by or at the direction of the
Board or the Chair of the Board pursuant to a written resolution adopted by the affirmative vote
of the majority of the total number of directors that the Corporation would have if there were no
vacancies, or (ii) prior to the first date on which the Principal Stockholder and the Principal
Stockholder Affiliates cease to beneficially own in the aggregate (directly or indirectly) at least
35% of the voting power of the then outstanding Voting Stock (“Special Meeting Trigger Date”),
by the Chair of the Board at the request of the Principal Stockholder in the manner provided for
in the Bylaws. Any business transacted at any special meeting of stockholders shall be limited to
the purpose or purposes stated in the notice of the meeting.
ARTICLE EIGHT
Section 1.Certain Acknowledgments. It is hereby acknowledged that:
(a)(i) certain of the directors, partners, principals, officers, members,
managers, employees, operating partners, and/or contractors of the Principal Stockholder or the
Principal Stockholder Affiliates may serve as directors or officers of the Corporation, (ii) the
Principal Stockholder and the Principal Stockholder Affiliates engage and may continue to
engage in the same or similar activities or related lines of business as those in which the
Corporation, directly or indirectly, may engage and/or other business activities that overlap with
or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) the
Corporation and the Principal Stockholder Affiliates may engage in material business
transactions with the Principal Stockholder and the Principal Stockholder Affiliates, and the
Corporation is expected to benefit therefrom;
(b)the provisions of this ARTICLE EIGHT are set forth to regulate to the
fullest extent permitted by law certain affairs of the Corporation as they may involve the
Principal Stockholder and/or the Principal Stockholder Affiliates and/or their respective
directors, partners, principals, officers, members, managers, employees, operating partners, and/
or contractors, including any of the foregoing who serve as officers or directors of the
Corporation (the Principal Stockholder and/or the Principal Stockholder Affiliates and all such
other persons each an “Exempt Person” and collectively, the “Exempt Persons”); and
(c)this ARTICLE EIGHT constitutes the renunciation of corporate
opportunities pursuant to Section 122(17) of the DGCL, which authorizes a corporation to
renounce specified classes and categories of business opportunities.
11
Section 2.Renunciation of Corporate Opportunities. To the fullest extent permitted by the
DGCL, but subject to Section 3 of this ARTICLE EIGHT, the Corporation hereby renounces any
interest or expectancy in, or being offered an opportunity to participate in, any and all business
opportunities: (a) originated or acquired by an Exempt Person; (b) in which the Exempt Person
has an interest; or (c) that is received from any person or entity by an Exempt Person. The
business opportunities renounced under this paragraph include any actual or potential investment
or business opportunity or prospective economic advantage in which the Corporation could, but
for this paragraph, have an interest or expectancy (including, without limitation, acquisitions,
dispositions, business combinations, financings, or investment opportunities), whether or not
such opportunities are in the same or similar lines of business in which the Corporation is
engaged or intends to engage.
Section 3.Excluded Opportunities. Notwithstanding the foregoing provisions of this
ARTICLE EIGHT, but subject to Section 4 of this ARTICLE EIGHT, the Corporation does not
renounce any interest or expectancy it may have in any business opportunity that is (a) expressly
offered to a person solely in his or her capacity as a director or officer of the Corporation, and
not in any other capacity; (b) offered to, or acquired by, a person while he or she is a full-time
employee of the Corporation; or (c) that has been developed using the confidential information
of the Corporation or any of its subsidiaries.
Section 4.Certain Matters Deemed Not Corporate Opportunities. In addition to and
notwithstanding the foregoing provisions of this ARTICLE EIGHT, a corporate opportunity shall
not be deemed to belong to the Corporation if it is a business opportunity the Corporation is not
financially able or contractually permitted or legally able to undertake, or that is, from its nature,
not in the line of the Corporation’s business or is of no practical advantage to it or that is one in
which the Corporation has no interest or reasonable expectancy.
Section 5.Amendment of this Article. Notwithstanding anything to the contrary elsewhere
contained in this Certificate, subject to the rights of the holders of any series of Preferred Stock
then outstanding, and in addition to any vote required by applicable law, the affirmative vote of
the Principal Stockholder, so long as the Principal Stockholder and/or the Principal Stockholder
Affiliates continue to beneficially own any outstanding shares of Voting Stock of the
Corporation, shall be required to alter, amend, or repeal, or to adopt any provision inconsistent
with, this ARTICLE EIGHT; provided, however, that, to the fullest extent permitted by law,
neither the alteration, amendment, or repeal of this ARTICLE EIGHT nor the adoption of any
provision of this Certificate inconsistent with this ARTICLE EIGHT shall apply to or have any
effect on the liability or alleged liability of any Exempt Person for or with respect to any
activities or opportunities which such Exempt Person becomes aware of prior to such alteration,
amendment, repeal, or adoption.
Section 6.Deemed Notice. Any person or entity purchasing or otherwise acquiring or
holding any interest in any shares of the Corporation shall be deemed to have notice of and to
have consented to the provisions of this ARTICLE EIGHT.
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ARTICLE NINE
Section 1.Section 203 of the DGCL. The Corporation expressly elects not to be subject to
the provisions of Section 203 of the DGCL.
Section 2.Business Combinations with Interested Stockholders. Notwithstanding any other
provision in this Certificate to the contrary, the Corporation shall not engage in any Business
Combination (as defined herein), at any point in time at which the Common Stock is registered
under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), with any Interested Stockholder (as defined herein) for a period of three years
following the time that such stockholder became an Interested Stockholder, unless:
(a)prior to such time the Board approved either the Business Combination or
the transaction which resulted in such stockholder becoming an Interested Stockholder;
(b)upon consummation of the transaction which resulted in such stockholder
becoming an Interested Stockholder, such stockholder owned at least 85% of the Voting Stock of
the Corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the Voting Stock outstanding (but not the outstanding Voting Stock owned by such
Interested Stockholder) those shares owned (i) by Persons (as defined herein) who are directors
and also officers of the Corporation, and (ii) employee stock plans of the Corporation in which
employee participants do not have the right to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer; or
(c)at or subsequent to such time, the Business Combination is approved by
the Board and authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding Voting Stock which is not
owned by such Interested Stockholder.
Section 3.Exceptions to Prohibition on Interested Stockholder Transactions. The restrictions
contained in this ARTICLE NINE shall not apply if:
(a)a stockholder becomes an Interested Stockholder inadvertently and (i) as
soon as practicable divests itself of ownership of sufficient shares so that the stockholder ceases
to be an Interested Stockholder, and (ii) would not, at any time within the three-year period
immediately prior to a Business Combination between the Corporation and such stockholder,
have been an Interested Stockholder but for the inadvertent acquisition of ownership; or
(b)the Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the notice required
hereunder of a proposed transaction which (i) constitutes one of the transactions described in the
second sentence of this Section 3(b) of ARTICLE NINE, (ii) is with or by a Person who either
was not an Interested Stockholder during the previous three years or who became an Interested
Stockholder with the approval of the Board, and (iii) is approved or not opposed by a majority of
the directors then in office (but not less than one) who were directors prior to any Person
becoming an Interested Stockholder during the previous three years or were recommended for
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election or elected to succeed such directors by a majority of such directors. The proposed
transactions referred to in the preceding sentence are limited to: (x) a merger or consolidation of
the Corporation (except for a merger in respect of which, pursuant to Section 251(f) of the
DGCL, no vote of the stockholders of the Corporation is required); (y) a sale, lease, exchange,
mortgage, pledge, transfer, or other disposition (in one transaction or a series of transactions),
whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or
indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly
owned subsidiary or to the Corporation) having an aggregate market value equal to 50% or more
of either that aggregate market value of all of the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding Stock (as defined herein)
of the Corporation; or (z) a proposed tender or exchange offer for 50% or more of the
outstanding Voting Stock of the Corporation. The Corporation shall give not less than 20 days’
notice to all Interested Stockholders prior to the consummation of any of the transactions
described in clause (x) or (y) of the second sentence of this Section 3(b) of ARTICLE NINE.
Section 4.Definitions. As used in this ARTICLE NINE only, and unless otherwise provided
by the express terms of this ARTICLE NINE, the following terms shall have the meanings
ascribed to them as set forth in this Section 4 of ARTICLE NINE and, to the extent such terms
are defined elsewhere in this Certificate, such definitions shall not apply to this ARTICLE NINE:
(a)“Affiliate” means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, another Person;
(b)“Associate,” when used to indicate a relationship with any Person, means
(i) any corporation, partnership, unincorporated association, or other entity of which such Person
is a director, officer, or general partner or is, directly or indirectly, the owner of 20% or more of
any class of Voting Stock, (ii) any trust or other estate in which such Person has at least a 20%
beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity,
and (iii) any relative or spouse of such Person, or any relative of such spouse, who has the same
residence as such Person;
(c)“Business Combination” means:
(i)any merger or consolidation of the Corporation (other than a
merger effected pursuant to Sections 253 or 267 of the DGCL) or any direct or indirect majority-
owned subsidiary of the Corporation with (A) the Interested Stockholder, or (B) any other
corporation, partnership, unincorporated association, or entity if the merger or consolidation is
caused by the Interested Stockholder and as a result of such merger or consolidation Section 2 of
this ARTICLE NINE is not applicable to the surviving entity;
(ii)any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions), except proportionately as a
stockholder of the Corporation, to or with the Interested Stockholder, whether as part of a
dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned
subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more
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of either the aggregate market value of all the assets of the Corporation determined on a
consolidated basis or the aggregate market value of all the outstanding Stock of the Corporation;
(iii)any transaction which results in the issuance or transfer by the
Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any
Stock of the Corporation or of such subsidiary to the Interested Stockholder, except (A) pursuant
to the exercise, exchange, or conversion of securities exercisable for, exchangeable for, or
convertible into Stock of the Corporation or any such subsidiary which securities were
outstanding prior to the time that the Interested Stockholder became such; (B) pursuant to an
exchange of LLC Units into Class A Common Stock, to the extent provided in the Exchange
Agreement and the LLC Agreement, (C) pursuant to a merger under Sections 251(g), 253 or 267
of the DGCL, (D) pursuant to a dividend or distribution paid or made, or the exercise, exchange,
or conversion of securities exercisable for, exchangeable for, or convertible into Stock of the
Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class
or series of Stock of the Corporation subsequent to the time the Interested Stockholder became
such, (E) pursuant to an exchange offer by the Corporation to purchase Stock made on the same
terms to all holders of such Stock, or (F) any issuance or transfer of Stock by the Corporation;
provided, however, that in no case under items (D)-(F) of this Section 4(c)(iii) of ARTICLE
NINE shall there be an increase in the Interested Stockholder’s proportionate share of the Stock
of any class or series of the Corporation or of the Voting Stock of the Corporation;
(iv)any transaction involving the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of
increasing the proportionate share of the Stock of any class or series, or securities convertible
into the Stock of any class or series, of the Corporation or of any such subsidiary which is owned
by the Interested Stockholder, except as a result of immaterial changes due to fractional share
adjustments or as a result of any purchase or redemption of any shares of Stock not caused,
directly or indirectly, by the Interested Stockholder; or
(v)any receipt by the Interested Stockholder of the benefit, directly or
indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances,
guarantees, pledges, or other financial benefits (other than those expressly permitted in Sections
4(c)(i)-(iv) of ARTICLE NINE) provided by or through the Corporation or any direct or indirect
majority-owned subsidiary of the Corporation;
(d)“control,” including the terms “controlling,” “controlled by” and “under
common control with,” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through the ownership
of Voting Stock, by contract or otherwise. A Person who is the owner of 20% or more of the
outstanding Voting Stock of any corporation, partnership, unincorporated association, or other
entity shall be presumed to have control of such entity, in the absence of proof by a
preponderance of the evidence to the contrary; notwithstanding the foregoing, a presumption of
control shall not apply where such Person holds Voting Stock, in good faith and not for the
purpose of circumventing this ARTICLE NINE, as an agent, bank, broker, nominee, custodian,
or trustee for one or more owners who do not individually or as a group (as such term is used in
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Rule 13d-5 under the Exchange Act (“Rule 13d-5”), as such Rule 13d-5 is in effect as of the date
of this Certificate) have control of such entity;
(e)“Interested Stockholder” means any Person (other than the Corporation
and any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of
15% or more of the outstanding Voting Stock of the Corporation, or (ii) is an Affiliate or
Associate of the Corporation and was the owner of 15% or more of the outstanding Voting Stock
of the Corporation at any time within the three-year period immediately prior to the date on
which it is sought to be determined whether such Person is an Interested Stockholder, and the
Affiliates and Associates of such Person. Notwithstanding anything in this ARTICLE NINE to
the contrary, the term “Interested Stockholder” shall not include: (x) the Principal Stockholder or
any of the Principal Stockholder Affiliates, or any other Person with whom any of the foregoing
are acting as a group or in concert for the purpose of acquiring, holding, voting, or disposing of
shares of Stock of the Corporation; (y) any Person who would otherwise be an Interested
Stockholder either in connection with or because of a transfer, sale, assignment, conveyance,
hypothecation, encumbrance, or other disposition of 5% or more of the outstanding Voting Stock
of the Corporation (in one transaction or a series of transactions) by the Principal Stockholder or
any of its Affiliates or Associates to such Person; provided, however, that such Person was not
an Interested Stockholder prior to such transfer, sale, assignment, conveyance, hypothecation,
encumbrance, or other disposition; or (z) any Person whose ownership of shares in excess of the
15% limitation set forth herein is the result of action taken solely by the Corporation; provided
that, for purposes of this clause (z) only, such Person shall be an Interested Stockholder if
thereafter such Person acquires additional shares of Voting Stock of the Corporation, except as a
result of further action by the Corporation not caused, directly or indirectly, by such Person;
provided, that, for the purpose of determining whether a Person is an Interested Stockholder, the
Voting Stock of the Corporation deemed to be outstanding shall include Stock deemed to be
owned by the Person through application of this definition of “owned” but shall not include any
other unissued Stock of the Corporation which may be issuable pursuant to any agreement,
arrangement, or understanding, or upon exercise of conversion rights, warrants, or options, or
otherwise;
(f)“Owner,” including the terms “own” and “owned,” when used with
respect to any Stock, means a Person that individually or with or through any of its Affiliates or
Associates beneficially owns such Stock, directly or indirectly; or has (A) the right to acquire
such Stock (whether such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement, or understanding, or upon the exercise of conversion
rights, exchange rights, warrants, or options, or otherwise; provided, however, that a Person shall
not be deemed the owner of Stock tendered pursuant to a tender or exchange offer made by such
Person or any of such Person’s Affiliates or Associates until such tendered Stock is accepted for
purchase or exchange, (B) the right to vote such Stock pursuant to any agreement, arrangement,
or understanding; provided, however, that a Person shall not be deemed the owner of any Stock
because of such Person’s right to vote such Stock if the agreement, arrangement, or
understanding to vote such Stock arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made to 10 or more Persons, or (C) has any
agreement, arrangement, or understanding for the purpose of acquiring, holding, voting (except
16
voting pursuant to a revocable proxy or consent as described in clause (B) of this Section 4(f) of
ARTICLE NINE), or disposing of such Stock with any other Person that beneficially owns, or
whose Affiliates or Associates beneficially own, directly or indirectly, such Stock;
(g)“Person” means any individual, corporation, partnership, unincorporated
association, or other entity;
(h)“Stock” means, with respect to any corporation, any capital stock of such
corporation and, with respect to any other entity, any equity interest of such entity; and
(i)“Voting Stock” means, with respect to any corporation, Stock of any class
or series entitled to vote generally in the election of directors, and, with respect to any entity that
is not a corporation, any equity interest entitled to vote generally in the election of the governing
body of such entity. Every reference to a percentage of Voting Stock shall refer to such
percentage of the votes of such Voting Stock.
ARTICLE TEN
Section 1.Amendments to the Bylaws. Subject to the rights of holders of any series of
Preferred Stock then outstanding, in furtherance and not in limitation of the powers conferred by
law, prior to the Board Trigger Date, the Bylaws may be amended, altered, rescinded, or
repealed, in whole or in part, and new bylaws may be adopted by (i) the Board, or (ii) in addition
to any vote of the holders of any class or series of capital stock of the Corporation required
herein (including pursuant to any certificate of designation relating to any series of Preferred
Stock) and any other vote otherwise required by applicable law or the Bylaws, the affirmative
vote of the holders of at least a majority of the voting power of all of the then outstanding shares
of Voting Stock of the Corporation, voting together as a single class. On and after the Board
Trigger Date, the Bylaws may be amended, altered, rescinded, or repealed, in whole or in part,
and new bylaws may be adopted by (i) the Board, or (ii) in addition to any vote of the holders of
any class or series of capital stock of the Corporation required herein (including pursuant to any
certificate of designation relating to any series of Preferred Stock), and any other vote otherwise
required by applicable law or the Bylaws, the affirmative vote of the holders of at least 66 2/3%
of the voting power of the then outstanding Voting Stock of the Corporation, voting together as a
single class.
Section 2.Amendments to this Certificate. Subject to the rights of holders of any series of
Preferred Stock then outstanding, and in addition to any other vote required by law or this
Certificate, no provision of ARTICLE FIVE, ARTICLE SIX, ARTICLE SEVEN, ARTICLE
NINE, ARTICLE TEN, or ARTICLE ELEVEN of this Certificate may be altered, amended, or
repealed in any respect, nor may any provision of this Certificate or the Bylaws inconsistent
therewith be adopted, unless (i) prior to the Board Trigger Date, such alteration, amendment,
repeal, or adoption is approved by the affirmative vote of the holders of a majority of the voting
power of all outstanding shares of Voting Stock of the Corporation, voting together as a single
class, and (ii) on and after the Board Trigger Date, such alteration, amendment, repeal, or
adoption is approved by the affirmative vote of holders of at least 66 2/3% of the voting power of
all outstanding shares of Voting Stock of the Corporation, voting together as a single class.
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ARTICLE ELEVEN
Section 1.Exclusive Forum. Unless this Corporation consents in writing to the selection of
an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of
Chancery does not have jurisdiction, the state or federal court located in the State of Delaware
with jurisdiction) shall, to the fullest extent permitted by law, be the sole and exclusive forum for
(i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any current or former director, officer,
employee, or stockholder of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or
as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware,
the Certificate or the Bylaws, or (iv) any action asserting a claim governed by the internal affairs
doctrine; provided that, for the avoidance of doubt, this provision, including for any “derivative
action,” will not apply to suits to enforce a duty or liability created by the Securities Act of 1933,
as amended (the “Securities Act”), the Exchange Act, or any other claim for which the federal
courts have exclusive jurisdiction. Unless this Corporation consents in writing to the selection of
an alternative forum, the federal district courts of the United States shall be the exclusive forum
for the resolution of any complaint asserting a cause of action arising under the Securities Act.
Section 2.Notice. Any Person purchasing or otherwise acquiring or holding any interest in
shares of capital stock of the Corporation (including, without limitation, shares of Common
Stock) shall be deemed to have notice of and to have consented to the provisions of this
ARTICLE ELEVEN.
ARTICLE TWELVE
If any provision or provisions of this Certificate shall be held to be invalid, illegal, or
unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality,
and enforceability of such provisions in any other circumstance and of the remaining provisions
of this Certificate (including, without limitation, each portion of any paragraph of this Certificate
containing any such provision held to be invalid, illegal, or unenforceable that is not itself held to
be invalid, illegal, or unenforceable) shall not, to the fullest extent permitted by applicable law,
in any way be affected or impaired thereby.
EX-3.2 4 exhibit32-8xkxarbylaws.htm EX-3.2 Exhibit 3.2 - 8-K - A&R Bylaws
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ACCELEVATION HOLDINGS CORP.
A Delaware corporation
(Adopted as of September 29, 2026)
ARTICLE I
OFFICES
Section 1.Offices. Accelevation Holdings Corp. (the “Corporation”) may have an
office or offices other than its registered office at such place or places, either within or outside
the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from time
to time determine or the business of the Corporation may require. The registered office of the
Corporation in the State of Delaware shall be as stated in the Corporation’s certificate of
incorporation as then in effect (as amended, restated, modified, and/or supplemented from time
to time, including by any certificate of designation relating to any series of preferred stock, the
“Certificate of Incorporation”).
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.Place of Meetings. The Board may designate a place, if any, either within
or outside the State of Delaware, as the place of meeting for any annual meeting or for any
special meeting of stockholders. The Board may, in its sole discretion, determine that meetings
of stockholders shall not be held at any place, but may in addition to or instead be held solely by
means of remote communication (including virtually) in accordance with Section 211(a)(2) of
the General Corporation Law of the State of Delaware (the “DGCL”).
Section 2.Annual Meeting. An annual meeting of the stockholders shall be held at
such date and time as is specified by resolution of the Board. At the annual meeting, stockholders
shall elect directors to succeed those whose terms expire at such annual meeting and transact
such other business as properly may be brought before the annual meeting pursuant to Section 11
of this ARTICLE II of these amended and restated bylaws (as amended, restated, modified, and/
or supplemented from time to time, these “Bylaws”). The Board may postpone, reschedule, or
cancel any annual meeting of stockholders previously scheduled by the Board.
Section 3.Special Meetings. Special meetings of the stockholders may only be called
in the manner provided in the Certificate of Incorporation and may be held at such place, if any,
either within or without the State of Delaware, and at such time and date as the Board or the
Chair of the Board (the “Chair”) or the Chief Executive Officer of the Corporation (the “CEO”)
shall determine and state in the notice of such meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice. The Board may
postpone, reschedule, or cancel any special meeting of stockholders previously scheduled by the
2
Board; provided that prior to the Special Meeting Trigger Date (as defined in the Certificate of
Incorporation), any special meeting called at the request of the Principal Stockholder (as defined
herein) or any Principal Stockholder Affiliate (as defined herein) may not be postponed,
rescheduled, or canceled without the consent of the Principal Stockholder or such Principal
Stockholder Affiliate, as the case may be, at whose request the meeting was originally called.
Section 4.Notice of Meetings. Whenever stockholders are required or permitted to
take action at a meeting, notice of the meeting, which shall state the place, if any, date, and time
of the meeting of the stockholders, the means of remote communications, if any, by which
stockholders and proxyholders not physically present may be deemed to be present in person and
vote at such meeting, the record date for determining the stockholders entitled to vote at the
meeting, if such date is different from the record date for determining stockholders entitled to
notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given, not less than 10 nor more than 60 days before the date on which
the meeting is to be held, to each stockholder entitled to vote at such meeting as of the record
date for determining the stockholders entitled to notice of the meeting, except as otherwise
provided herein or required by law (meaning, here and hereinafter, as required from time to time
by the DGCL) or the Certificate of Incorporation.
(a)Form of Notice. All such notices shall be delivered in writing or by
electronic transmission in the manner provided in Section 232 of the DGCL, or in any other
manner permitted by the DGCL. If mailed, such notice shall be deemed given when deposited in
the United States mail, postage prepaid, addressed to the stockholder at his, her, or its address as
the same appears on the records of the Corporation. If delivered by courier service, notice shall
be deemed given at the earlier of when the notice is received or left at such stockholder’s address
as the same appears on the records of the Corporation. If given by electronic mail, notice shall be
deemed given when directed to such stockholder’s electronic mail address unless the stockholder
has notified the Corporation in writing or by electronic transmission of an objection to receiving
notice by electronic mail or such notice is prohibited by the DGCL. Notice to stockholders may
also be given by other forms of electronic transmission consented to by the stockholder. If given
by facsimile telecommunication, such notice shall be deemed given when directed to a number at
which the stockholder has consented to receive notice by facsimile. If given by a posting on an
electronic network together with separate notice to the stockholder of such specific posting, such
notice shall be deemed given upon the later of: (A) such posting; and (B) the giving of such
separate notice. If notice is given by any other form of electronic transmission, such notice shall
be deemed given when directed to the stockholder. An affidavit of the secretary of the
Corporation (the “Secretary”) or an assistant secretary of the Corporation (the “Assistant
Secretary”), the transfer agent of the Corporation (the “Transfer Agent”), or any other officer,
assistant officer, or agent of the Corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
(b)Waiver of Notice. Whenever notice is required to be given under any
provisions of the DGCL, the Certificate of Incorporation, or these Bylaws, a written waiver
thereof, signed by the stockholder entitled to notice, or a waiver by electronic transmission given
by the stockholder entitled to notice, whether before or after the time stated therein, shall be
3
deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders of the Corporation need be specified in any waiver of notice of such
meeting. Attendance of a stockholder of the Corporation at a meeting of such stockholders shall
constitute a waiver of notice of such meeting, except when the stockholder attends for the
express purpose of objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened and does not further participate in the
meeting.
Section 5.List of Stockholders. The Corporation shall prepare, no later than the tenth
day before each meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting; provided, however, if the record date for determining the stockholders entitled to
vote is less than ten days before the meeting date, the list shall reflect the stockholders entitled to
vote as of the tenth day before the meeting date, arranged in alphabetical order and showing the
address of each such stockholder and the number of shares registered in the name of each such
stockholder. Nothing contained in this section shall require the Corporation to include electronic
mail addresses or other electronic contact information on such list. Such list shall be open to the
examination of any stockholder for any purpose germane to the meeting for a period of ten days
prior to the meeting date: (A) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting; or (B)
during ordinary business hours, at the principal place of business of the Corporation. In the event
the Corporation determines to make the list available on an electronic network, the Corporation
may take reasonable steps to ensure that such information is available only to stockholders of the
Corporation. Except as otherwise provided by law, the list shall be the only evidence as to who
are the stockholders entitled to examine the list of stockholders required by this Section 5 or to
vote in person or by proxy at any meeting of stockholders.
Section 6.Quorum. The holders of a majority in voting power of the outstanding
capital stock entitled to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise provided by law, by
the Certificate of Incorporation or these Bylaws. If a quorum is not present, the chair of the
meeting or the holders of a majority of the voting power present in person or represented by
proxy at the meeting and entitled to vote thereon may adjourn the meeting to another time and/or
place from time to time until a quorum shall be present in person or represented by proxy. When
a specified item of business requires a vote by a class or series (if the Corporation shall then have
outstanding shares of more than one class or series) voting as a separate class or series, the
holders of a majority in voting power of the outstanding stock of such class or series shall
constitute a quorum (as to such class or series) for the transaction of such item of business. A
quorum once established at a meeting shall not be broken by the withdrawal of enough votes to
leave less than a quorum.
Section 7.Adjourned Meetings. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place. When a meeting is
adjourned to another time or place (including an adjournment taken to address a technical failure
to convene or continue a meeting using remote communication), notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if
4
any, by which stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are (i) announced at the meeting at which the adjournment is taken, (ii)
displayed, during the time scheduled for the meeting, on the same electronic network used to
enable stockholders and proxy holders to participate in the meeting by means of remote
communication or (iii) set forth in the notice of meeting given in accordance with these Bylaws.
At the adjourned meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for stockholders entitled to vote is fixed for the
adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in
accordance with these Bylaws, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for
notice of such adjourned meeting.
Section 8.Vote Required. Subject to the rights of the holders of any series of
preferred stock then-outstanding, when a quorum has been established, all matters other than the
election of directors shall be determined by the affirmative vote of the majority of voting power
of capital stock present in person or represented by proxy at the meeting and entitled to vote on
the subject matter, unless by express provisions of the DGCL or other applicable law, the rules of
any stock exchange upon which the Corporation’s securities are listed, any regulation applicable
to the Corporation or its securities, the Certificate of Incorporation, or these Bylaws a minimum
or different vote is required, in which case such minimum or different vote shall be the required
vote for such matter. Except as otherwise provided in the Certificate of Incorporation, directors
shall be elected by a plurality of the votes cast.
Section 9.Voting Rights. Subject to the rights of the holders of any series of
preferred stock then-outstanding, except as otherwise provided by the DGCL or the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled
to one vote in person or by proxy for each share of capital stock held by such stockholder which
has voting power upon the matter in question. Voting at meetings of stockholders need not be by
written ballot.
Section 10.Proxies. Each stockholder entitled to vote at a meeting of stockholders or
to express consent to corporate action without a meeting may authorize another person or
persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
5
Section 11.Advance Notice of Stockholder Business and Director Nominations.
(a)Nominations of Directors and Other Business at Annual Meetings of
Stockholders.
(i)Only such business, including nominations of persons for election
to the Board, shall be conducted at an annual meeting of the stockholders as shall
have been brought before the meeting: (A) as specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board or any duly
authorized committee thereof; (B) by or at the direction of the Board or any duly
authorized committee thereof; or (C) by any stockholder of the Corporation who
(1) was a stockholder of record at the time of giving of notice provided for in
Section 11(a)(iii) of this ARTICLE II, on the record date for determination of
stockholders of the Corporation entitled to vote at the meeting, and at the time of
the annual meeting, (2) at the time of the meeting, is entitled to vote at the
meeting, and (3) complies with the notice procedures set forth in Section 11(a) of
this ARTICLE II. For the avoidance of doubt, the foregoing clause (C) of this
Section 11(a)(i) of ARTICLE II shall be the exclusive means for a stockholder to
make nominations or propose such business before an annual meeting of
stockholders. Notwithstanding the foregoing or any other provisions in this
Section 11 to the contrary, at any time prior to the date that Olympus Partners, LP
(the “Principal Stockholder”) and any entity that controls, is controlled by or is
under common control with such Principal Stockholder (other than the
Corporation and any entity that is controlled by the Corporation) and any
investment funds managed by such Principal Stockholder or any of its affiliates
(“Principal Stockholder Affiliates”) cease to beneficially own in the aggregate
(directly or indirectly) at least 10% of the voting power of the then outstanding
shares of capital stock of the Corporation then entitled to vote generally in the
election of directors (the “Advance Notice Trigger Date”), none of the notice,
information, or compliance requirements of this Section 11 shall apply to any
nominations or business brought before any annual or special meeting of
stockholders by the Principal Stockholder or Principal Stockholder Affiliates, and
such nominations or business shall be deemed properly brought before such
meeting.
(ii)For nominations or other business to be properly brought before an
annual meeting by a stockholder (any such stockholder of record, as required by
Section 11(a)(i) of this ARTICLE II, proposing business or nominating persons
for election to the Board at a meeting of stockholders, the “Noticing
Stockholder”), the Noticing Stockholder must have given timely notice thereof in
proper written form as described in Section 11(a)(iii) of this ARTICLE II to the
Secretary; any such proposed business other than nominations of persons for
election to the Board must be a proper matter for stockholder action; and the
Noticing Stockholder and any other stockholder, if any, on whose behalf the
business is being proposed or the nomination is being made (collectively with the
6
Noticing Stockholder, the “Holders” and each a “Holder”) must have acted in
accordance with the representations set forth in the Solicitation Statement (as
defined in Section 11(a)(iii) of this ARTICLE II) required by these Bylaws and
otherwise complied with the requirements with respect to such nominations or
business set forth in this ARTICLE II of these Bylaws. To be timely, a
stockholder’s notice for such nominations or other business must be delivered to
and received by the Secretary at the principal executive offices of the Corporation
in proper written form not less than 90 days and not more than 120 days prior to
the first anniversary of the preceding year’s annual meeting of stockholders
(which date shall, for purposes of the Corporation’s first annual meeting of
stockholders after its shares of Class A common stock, par value $0.0001 per
share (the “Class A Common Stock”), are first publicly traded, be deemed to have
occurred on September 29, 2026); provided, however, that if and only if the
annual meeting is not scheduled to be held within a period that commences 30
days before such anniversary date and ends 70 days after such anniversary date, or
if no annual meeting was held in the preceding year (other than for purposes of
the Corporation’s first annual meeting of stockholders after its shares of Class A
Common Stock are first publicly traded), such stockholder’s notice must be
delivered not earlier than the 120th day prior to the date of such annual meeting
and by the later of: (A) the 10th day following the day the Public Announcement
(as defined in Section 11(i) of this ARTICLE II) of the date of the annual meeting
is first made; or (B) the date which is 90 days prior to the date of the annual
meeting. In no event shall any adjournment or postponement of an annual meeting
or the announcement thereof commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described above. Notices
delivered pursuant to Section 11(a) of this ARTICLE II will be deemed received
on any given day only if received prior to the Close of Business (as defined in
Section 11(i) of this ARTICLE II) on such day (and otherwise shall be deemed
received on the next succeeding Business Day (as defined in Section 11(i) of this
ARTICLE II)). The number of nominees a stockholder may nominate for election
at the annual meeting on its own behalf (or in the case of one or more
stockholders giving the notice on behalf of a beneficial owner, the number of
nominees such stockholders may collectively nominate for election at the annual
meeting on behalf of such beneficial owner) shall not exceed the number of
directors to be elected at such annual meeting.
(iii)To be in proper written form, a Noticing Stockholder’s notice to
the Secretary must set forth:
(A)as to any business that the Noticing Stockholder (as defined
below) proposes to bring before the meeting:
(1)a brief description of the business desired to be
brought before the meeting;
7
(2)the reasons for conducting such business at the
meeting;
(3)a description of any direct or indirect material
interest of any Holder or Stockholder Associated Person of such
Holder in such business (whether by holdings of securities, or by
virtue of being a creditor or contractual counterparty of the
Corporation or of a third party, or otherwise);
(4)the text of the proposal or business (including the
specific text of any resolutions or actions proposed for
consideration and if such business includes a proposal to amend
these Bylaws, the specific language of the proposed amendment),
which business must be a proper subject for stockholder action;
and
(5)a description of all agreements, arrangements, and
understandings between each Holder and any Stockholder
Associated Person of such Holder and any other person or persons
(including their names) in connection with the proposal of such
business by the Noticing Stockholder;
(B)as to each Holder:
(1)the name, age, citizenship, and address of the
Noticing Stockholder, as they appear on the Corporation’s books,
and, if different from the Corporation’s books, the name and
address of the Noticing Stockholder;
(2)the name, age, citizenship, and address of such
Holder and each Stockholder Associated Person of such Holder;
(3)as of the date of the notice (which information, for
the avoidance of doubt, shall be updated and supplemented
pursuant to Section 11(d)):
a.the class or series and number of shares of
stock of the Corporation which are directly or indirectly
held of record or beneficially owned by such Holder and
each Stockholder Associated Person of such Holder
(provided that, for the purposes of this Section
11(a)(iii)(B)(3), any such person shall in all events be
deemed to beneficially own any shares of stock of the
Corporation as to which such person has a right to acquire
beneficial ownership at any time in the future (whether
8
such right is exercisable immediately or only after the
passage of time or the fulfillment of a condition or both)),
b.a description of all agreements,
arrangements, or understandings between such Holder and
each Stockholder Associated Person of such Holder, on the
one hand, and any other person or persons (naming such
person or persons), on the other hand, in connection with
such proposal of business and/or nomination, excluding
engagements with financial, legal, strategic or other
advisors in the ordinary course of business;
c.a description of any Derivative Instrument
(as defined in Section 11(i) of this ARTICLE II) directly or
indirectly held or beneficially held by such Holder and any
Stockholder Associated Person of such Holder;
d.whether and to the extent to which a
Hedging Transaction (as defined in Section 11(i) of this
ARTICLE II) has been entered into by or on behalf of such
Holder or any Stockholder Associated Person of such
Holder;
e.a description of any proxy, contract,
arrangement, understanding, or relationship (other than a
revocable proxy given in response to a public proxy
solicitation made pursuant to, and in accordance with, the
Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), pursuant to which each Holder and any
Stockholder Associated Person of such Holder has any
right to vote or has granted a right to vote any shares of
stock or any other security of the Corporation;
f.a description of any agreement,
arrangement, or understanding with respect to any rights to
dividends or payments in lieu of dividends on the shares of
the Corporation owned beneficially by each Holder or any
Stockholder Associated Person of such Holder that are
separated or separable pursuant to such agreement,
arrangement, or understanding from the underlying shares
of stock or other security of the Corporation;
g.any direct or indirect legal, economic, or
financial interest (including Short Interest) of each Holder
and each Stockholder Associated Person, if any, of such
Holder in the outcome of any (x) vote to be taken at any
9
annual or special meeting of stockholders of the
Corporation or (y) any meeting of stockholders of any other
entity with respect to any matter that is related, directly or
indirectly, to any nomination or business proposed by any
Holder under these Bylaws; and
h.any material pending or threatened action,
suit, or proceeding (whether civil, criminal, investigative,
administrative, or otherwise) in which any Holder or any
Stockholder Associated Person of such Holder is, or is
reasonably expected to be made, a party or material
participant involving the Corporation or any of its officers,
directors, or employees, or any Affiliate of the Corporation,
or any officer, director, or employee of such Affiliate (the
information required by this subclause (3) shall be referred
to as the “Specified Information”); provided, however, that
the Specified Information shall not include any such
disclosures with respect to the ordinary course business
activities of any broker, dealer, commercial bank, trust
company, or other nominee who otherwise would be
required to disclose Specified Information hereunder solely
as a result of being the stockholder directed to prepare and
submit the notice required by this Section 11(a) on behalf
of a beneficial owner;
(4)a representation by the Noticing Stockholder that
such stockholder is a stockholder of record of the Corporation
entitled to vote at such meeting on the nominations or other
business proposed, that the Noticing Stockholder will continue to
be a stockholder of record of the Corporation entitled to vote at
such meeting on the matter proposed through the date of such
meeting and that such Noticing Stockholder intends to appear in
person or by proxy at such meeting to make such nominations or
propose such business;
(5)all information that would be required to be set
forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or an
amendment pursuant to Rule 13d-2(a) if such a statement were
required to be filed under the Exchange Act and the rules and
regulations promulgated thereunder by each Holder and each
Stockholder Associated Person, if any, of such Holder;
(6)any other information relating to each Holder and
each Stockholder Associated Person, if any, of such Holder that
would be required to be disclosed in a proxy statement and form of
10
proxy or other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder;
(7)a representation by the Noticing Stockholder as to
whether any Holder and/or any Stockholder Associated Person of
such Holder intends or is part of a group which intends (x) to
deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital stock
required to elect the proposed nominee or approve or adopt the
other business being proposed and/or (y) otherwise to solicit
proxies or votes from stockholders in support of such nomination
or other business (such representation, a “Solicitation Statement”);
(8)in connection with a nomination for any persons for
election as director, a representation by the Noticing Stockholder
whether any Holder intends, or is part of a group which intends, (x)
to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding shares of
capital stock required to approve or adopt the proposal or elect the
nominee and/or (y) otherwise to solicit proxies or votes from
stockholders in support of such proposal or nomination; and, if
applicable, (z) to solicit proxies in support of any proposed
nominee in accordance with Rule 14a-19 promulgated under the
Exchange Act;
(9)a certification by the Noticing Stockholder that each
Holder and any Stockholder Associated Person of such Holder has
complied with all applicable federal, state and other legal
requirements in connection with its acquisition of shares of capital
stock or other securities of the Corporation and/or such person’s
acts or omissions as a stockholder of the Corporation;
(10)with respect to a nomination, the information and
statement required by Rule 14a-19(b) of the Exchange Act (or any
successor provision);
(11)to the extent known after reasonable investigation,
the names and addresses of other stockholders (including
beneficial owners) known by any Holder or Stockholder
Associated Person of such Holder to provide financial support with
respect to such proposal(s) or nomination(s) (it being understood
that delivery of a revocable proxy with respect to such proposal or
nomination shall not in itself require disclosure under this
subclause (11)) and, to the extent known, the class and number of
11
all shares of the Corporation’s capital stock owned beneficially or
of record by such other stockholder(s) or other beneficial owner(s);
and
(12)a representation by the Noticing Stockholder as to
the accuracy of the information set forth in the notice.
(C)as to each person whom the Noticing Stockholder proposes
to nominate for election or re-election as a director:
(1)the name, age, citizenship and address (business and
residential) of such person;
(2)a complete biography and statement of such
person’s qualifications, including the principal occupation or
employment of such person (at present and for the past five years);
(3)the Specified Information for such person as if such
person were a Holder (except that no disclosure will be required
hereunder with respect to any Stockholder Associated Person of
any proposed nominee unless such Stockholder Associated Person
is also a Stockholder Associated Person of any Holder);
(4)a complete and accurate description of all
agreements, arrangements, and understandings between each
Holder and any Stockholder Associated Person of such Holder, on
the one hand, and such person, on the other hand, (at present and
for the past three years) including, without limitation, a complete
and accurate description of all direct and indirect compensation
and other monetary agreements, arrangements, and understandings
at present and for the past three years between such person and
such Holder(s) and any Stockholder Associated Person(s) of such
Holder(s) (including all biographical, related party transaction and
other information that would be required to be disclosed pursuant
to the federal and state securities laws, including Item 404
promulgated under Regulation S-K (“Regulation S-K”) under the
Securities Act of 1933, as amended (the “Securities Act”) (or any
successor provision), if any Holder or such Stockholder Associated
Person were the “registrant” for purposes of such rule and such
person were a director or executive officer of such registrant);
(5)any other information relating to such person that
would be required to be disclosed in a proxy statement or any other
filings required to be made in connection with solicitation of
proxies for the election of directors in a contested election or that is
otherwise required pursuant to and in accordance with Section 14
12
of the Exchange Act, and the rules and regulations promulgated
thereunder (including such person’s written consent to being
named in the Corporation’s proxy statements and any
accompanying proxy cards as a proposed nominee of the Noticing
Stockholder and to serving as a director if elected); and
(6)a completed and signed questionnaire,
representation, and agreement and any and all other information
required by Section 11(d) of this ARTICLE II.
In addition, any Noticing Stockholder who submits a notice pursuant to Section
11(a) of this ARTICLE II is required to update and supplement the information
disclosed in such notice, if necessary, in accordance with Section 11(c) of this
ARTICLE II.
(iv)Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted or nominations made at an annual meeting except in
accordance with the procedures set forth in Section 11(a) of this ARTICLE II;
provided that the foregoing shall not apply to any nominations or business
brought by the Principal Stockholder or any Principal Stockholder Affiliate at any
time prior to the Advance Notice Trigger Date.
(v)Notwithstanding anything in Section 11(a)(ii) of this ARTICLE II
to the contrary, if the number of directors to be elected to the Board is increased
effective after the time period for which nominations would otherwise be due
under Section 11(a)(ii) of this ARTICLE II and there is no Public Announcement
naming the nominees for additional directorships at least 10 days prior to the last
day a stockholder may deliver a notice of nomination in accordance with Section
11(a)(ii) of this ARTICLE II, a stockholder’s notice required by Section 11(a)(ii)
of this ARTICLE II shall also be considered timely, but only with respect to
nominees for the additional directorships, if it shall be received by the Secretary at
the principal executive offices of the Corporation not later than the Close of
Business on the 10th day following the day on which such Public Announcement
is first made by the Corporation.
(b)Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the meeting pursuant to
the notice of meeting. Only persons who are nominated in accordance and compliance with the
procedures set forth in this Section 11(b) of ARTICLE II shall be eligible for election to the
Board at a special meeting of stockholders at which directors are to be elected. Nominations of
persons for election to the Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the notice of meeting only: (i) by or at the direction of the
Board, any duly authorized committee thereof, or stockholders (if stockholders are permitted to
call a special meeting of stockholders pursuant to Section 2 of ARTICLE SEVEN of the
Certificate of Incorporation); or (ii) provided that the Board or stockholders (if stockholders are
permitted to call a special meeting of stockholders pursuant to Section 2 of ARTICLE SEVEN of
13
the Certificate of Incorporation) has determined that directors are to be elected at such special
meeting, by any stockholder of the Corporation who: (A) was a stockholder of record at the time
of giving of notice provided for in this Section 11(b) of ARTICLE II, and at the time of the
special meeting; (B) is entitled to vote at the meeting; and (C) complies with the notice
procedures provided for in this Section 11(b) of ARTICLE II. For nominations to be properly
brought by a stockholder at a special meeting of stockholders, the stockholder must have given
timely notice thereof in proper written form as described in this Section 11(b) of ARTICLE II to
the Secretary. To be timely, a stockholder’s notice for the nomination of persons for election to
the Board must be delivered to and received by the Secretary at the principal executive offices of
the Corporation not earlier than the 120th day prior to such special meeting and not later than the
Close of Business on the later of the 90th day prior to such special meeting or the 10th day
following the day on which a Public Announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such meeting. In no event
shall any adjournment or postponement of a special meeting or the announcement thereof
commence a new time period (or extend any time period) for the giving of a stockholder’s notice
as described above. Notices delivered pursuant to this Section 11(b) of ARTICLE II will be
deemed received on any given day if received prior to the Close of Business on such day (and
otherwise, on the next succeeding day). To be in proper written form, such stockholder’s notice
shall set forth all of the information required by, and otherwise be in compliance with, Section
11(a)(iii) of this ARTICLE II. In addition, any stockholder who submits a notice pursuant to this
Section 11(b) of ARTICLE II is required to update and supplement the information disclosed in
such notice, if necessary, in accordance with Section 11(c) of this ARTICLE II and shall comply
with Section 11(e) of this ARTICLE II. The number of nominees a stockholder may nominate
for election at the special meeting on its own behalf (or in the case of one or more stockholders
giving the notice on behalf of a beneficial owner, the number of nominees such stockholders may
collectively nominate for election at the special meeting on behalf of such beneficial owner) shall
not exceed the number of directors to be elected at such special meeting. Notwithstanding the
foregoing or anything else in this Section 11(b), at any time prior to the Advance Notice Trigger
Date, the Principal Stockholder and any Principal Stockholder Affiliate may make nominations
at any special meeting of stockholders at which directors are to be elected without compliance
with the notice, information, or other requirements of this Section 11(b), and any such
nominations shall be deemed properly brought before such meeting
(c)Update and Supplement of Stockholder’s Notice. Any stockholder who
submits a notice of proposal for business or nomination for election pursuant to this Section 11
of ARTICLE II is required to update and supplement the information disclosed in such notice, if
necessary, so that the information provided or required to be provided in such notice shall be true
and correct as of the record date for the meeting of stockholders and as of the date that is 10
Business Days prior to the meeting of stockholders or any adjournment, recess, rescheduling, or
postponement thereof, and such update and supplement shall be delivered to and received by the
Secretary at the principal executive offices of the Corporation not later than five Business Days
after the record date for the meeting of stockholders in the case of the update and supplement
required to be made as of the record date, and not later than eight Business Days prior to the date
for the meeting of stockholders or any adjournment, recess, rescheduling or postponement
thereof in the case of the update and supplement required to be made as of 10 Business Days
14
prior to the meeting of stockholders or any adjournment, recess, rescheduling, or postponement
thereof. In addition, if the Noticing Stockholder has delivered to the Corporation a notice relating
to the nomination of directors, the Noticing Stockholder shall deliver to the Corporation not later
than eight Business Days prior to the date of the meeting or any adjournment, recess,
rescheduling, or postponement thereof (or, if not practicable, on the first practicable date prior to
the date to which the annual meeting has been adjourned or postponed) reasonable evidence that
it has complied with the requirements of Rule 14a-19 of the Exchange Act (or any successor
provision). For the avoidance of doubt, the obligation to update and supplement set forth in this
paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with
respect to any deficiencies in any notice provided by a stockholder, extend any applicable
deadlines hereunder or enable or be deemed to permit a stockholder who has previously
submitted notice hereunder to amend or update any proposal or to submit any new proposal,
including by changing or adding nominees, matters, business and/or resolutions proposed to be
brought before a meeting of the stockholders.
(d)Submission of Questionnaire, Representation, and Agreement. To be
qualified to be a nominee for election or re-election as a director of the Corporation, a person
must deliver (in the case of a person nominated by a stockholder in accordance with Sections
11(a) or 11(b) of this ARTICLE II, in accordance with the time periods prescribed for delivery of
notice under such sections) to the Secretary at the principal executive offices of the Corporation a
written questionnaire with respect to the background and qualification of such person and the
background of any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request of any stockholder of
record identified by name within five Business Days of such written request) and a written
representation and agreement (in the form provided by the Secretary upon written request of any
stockholder of record identified by name within five Business Days of such written request) that
such person: (i) is not and will not become a party to: (A) any agreement, arrangement, or
understanding (whether written or oral) with, and has not given any commitment or assurance to,
any person or entity as to how such person, if elected as a director of the Corporation, will act or
vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation; or (B) any Voting Commitment that could limit or interfere with such person’s
ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties
under applicable law; (ii) is not and will not become a party to any agreement, arrangement, or
understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement, or indemnification in connection with service or action as
a director that has not been disclosed to the Corporation; and (iii) would be in compliance, and if
elected as a director of the Corporation will comply, with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality, and stock ownership and trading
policies and guidelines of the Corporation that are publicly available.
(e)Update and Supplement of Nominee Information. The Corporation may
also, as a condition to any such nomination or business being deemed properly brought before an
annual meeting of stockholders, require any Holder or any proposed nominee to deliver to the
Secretary, within five Business Days of any such request, such other information as may
reasonably be required by the Board to determine whether such proposed nominee is eligible
15
under the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock
exchange applicable to the Corporation, or any law or regulation applicable to the Corporation to
serve as a director or independent director of the Corporation.
(f)Authority of Chair; General Provisions. Except as otherwise provided by
applicable law, the Certificate of Incorporation, or these Bylaws and subject to the supervision of
the Board, the chair of the meeting shall have the power and duty to determine whether any
nomination or other business proposed to be brought before the meeting was made or brought in
accordance with the procedures set forth in these Bylaws (including whether the Noticing
Stockholder or Stockholder Associated Person or other person, if any, on whose behalf the
nomination or proposal is made or solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies or votes in support of such Noticing Stockholder’s nominee
or proposal in compliance with such Noticing Stockholder’s representation as required by
Section 11(a)(iii)(B)(8) of this ARTICLE II) and, if any nomination or other business is not
made or brought in compliance with these Bylaws, to declare that such nomination or proposal of
other business be disregarded and not acted upon; provided, however, that the foregoing shall not
apply to, and the chair of the meeting shall have no authority to disregard, any nomination or
business brought by the Principal Stockholder or any Principal Stockholder Affiliate at any time
prior to the Advance Notice Trigger Date.
(g)Effect on Other Rights. Nothing in these Bylaws shall be deemed to: (A)
confer upon any stockholder a right to have a nominee or any proposed business included in the
Corporation’s proxy statement, except as set forth in the Certificate of Incorporation or these
Bylaws; (B) affect any rights of the holders of any series of preferred stock to elect directors
pursuant to any applicable provisions of the Certificate of Incorporation; or (C) limit the
exercise, the method, or timing of the exercise of the rights of the Principal Stockholder and the
Principal Stockholder Affiliates granted by the Corporation to nominate directors (pursuant to
that Director Nomination Agreement, dated as of on or about September 29, 2026 (as amended,
restated, modified, and/or supplemented from time to time, the “Director Nomination
Agreement”), by and among the Corporation and the investors named therein), which rights may
be exercised without compliance with the provisions of Section 11 of this ARTICLE II.
(h)Definitions. For purposes of this Section 11 of ARTICLE II, the term:
(i)“Affiliate” has the meaning attributed to such term in Rule 12b-2
under the Exchange Act;
(ii)“Associate” has the meaning attributed to such term in Rule 12b-2
under the Exchange Act;
(iii)“Business Day” shall mean each Monday, Tuesday, Wednesday,
Thursday, and Friday that is not a day on which banking institutions in
Miamisburg, OH or New York, NY are authorized or obligated by law or
executive order to close;
16
(iv)“Close of Business” shall mean 5:00 p.m. local time at the
principal executive offices of the Corporation, and if an applicable deadline falls
on the Close of Business on a day that is not a Business Day, then the applicable
deadline shall be deemed to be the Close of Business on the immediately
preceding Business Day;
(v)“Derivative Instrument” means any short position, profits interest,
option, warrant, convertible security, stock appreciation right, or similar right with
an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the Corporation or with a value
derived in whole or in part from the value of any class or series of shares of the
Corporation, or any derivative or synthetic arrangement having the characteristics
of a long position in any class or series of shares of the Corporation, or any
contract, derivative, swap, or other transaction or series of transactions designed
to produce economic benefits and risks that correspond substantially to the
ownership of any class or series of shares of the Corporation, including due to the
fact that the value of such contract, derivative, swap, or other transaction or series
of transactions is determined by reference to the price, value, or volatility of any
class or series of shares of the Corporation, whether or not such instrument,
contract, or right shall be subject to settlement in the underlying class or series of
shares of the Corporation, through the delivery of cash or other property, or
otherwise, and without regard to whether the stockholder and any Stockholder
Associated Person may have entered into transactions that hedge or mitigate the
economic effect of such instrument, contract, or right, or any other direct or
indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation;
(vi)“Hedging Transaction” means, with respect to a stockholder or any
Stockholder Associated Person, any hedging or other transaction (such as
borrowed or loaned shares) or series of transactions, or any other agreement,
arrangement, or understanding, the effect or intent of which is to increase or
decrease the voting power or economic or pecuniary interest of such stockholder
or any Stockholder Associated Person with respect to the Corporation’s securities;
(vii)“Public Announcement” means disclosure (a) in a press release
released by the Corporation, provided such press release is released by the
Corporation following its customary procedures, as reported by the Dow Jones
News Service, Associated Press, Business Wire, PR Newswire or a comparable
news service, or is generally available on internet news sites, or (b) in a document
publicly filed by the Corporation with the SEC pursuant to Sections 13, 14 or
15(d) of the Exchange Act;
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(viii)“Stockholder Associated Person” means, with respect to any
Holder:
(A)any participant (as defined in paragraphs (a)(ii)-(vi) of
Instruction 3 to Item 4 of Schedule 14A of the Exchange Act, or any
successor instructions) with such Holder in a solicitation of proxies in
respect of any business or director nomination proposed by such
stockholder;
(B)any Affiliate or Associate of such Holder; and
(C)any person who is a member of a “group” (as such term is
used in Rule 13d-5 under the Exchange Act (or any successor provision))
with such Holder; and
(ix)“Short Interest” means any agreement, arrangement,
understanding, relationship, or otherwise, including any repurchase or similar so-
called “stock borrowing” agreement or arrangement, involving any stockholder or
any Stockholder Associated Person, the purpose or effect of which is to mitigate
loss to, reduce the economic risk (of ownership or otherwise) of any class or
series of the shares of the Corporation by, manage the risk of share price changes
for, or increase or decrease the voting power of, such stockholder or any
Stockholder Associated Person with respect to any class or series of the shares or
other securities of the Corporation, or which provides, directly or indirectly, the
opportunity to profit or share in any profit derived from any decrease in the price
or value of any class or series of the shares or other securities of the Corporation;
and
(x)For purposes of these Bylaws, the words “include,” “includes” or
“including” are deemed to be followed by the words “without limitation.” Where
a reference in these Bylaws is made to any statute or regulation, such reference
shall be to (1) the statute or regulation as amended from time to time (except as
context may otherwise require) and (2) any rules or regulations promulgated
thereunder.
(i)Proxy Card. Any stockholder directly or indirectly soliciting proxies from
other stockholders must use a proxy card color other than white, which shall be reserved for the
exclusive use by the Board.
Section 12.Requirement to Appear. Notwithstanding anything to the contrary
contained in Section 11, if the Noticing Stockholder that has provided timely notice of a
nomination or item of business in accordance with Section 11 (or a qualified representative of the
Noticing Stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present such nomination or item of business, such proposed business shall not be
transacted and such nomination shall be disregarded, notwithstanding that such proposed
business or such nomination is set forth in the notice of meeting or other proxy materials and
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notwithstanding that proxies or votes in respect of such vote may have been received by the
Corporation. For purposes of these Bylaws, to be considered a qualified representative of the
Noticing Stockholder, a person must be a duly authorized officer, manager or partner of such
Noticing Stockholder or must be authorized by a writing executed by such Noticing Stockholder
or an electronic transmission delivered by such Noticing Stockholder to act for such Noticing
Stockholder as proxy at the meeting of stockholders and such person must produce such writing
or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
Section 13.Fixing a Record Date for Stockholder Meetings. In order that the
Corporation may determine the stockholders entitled to notice of any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the Board, and which
record date shall not be more than 60 days nor less than 10 days before the date of such meeting.
If the Board so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes
such record date, that a later date on or before the date of the meeting shall be the date for
making such determination. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the
close of business on the day next preceding the day on which notice is first given, or, if notice is
waived, at the close of business on the day next preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board
may fix a new record date for the adjourned meeting in conformity herewith; and in such case
shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the
same or an earlier date as that fixed for determination of stockholders entitled to vote in
accordance with the foregoing provisions of this Section 13 of ARTICLE II at the adjourned
meeting.
Section 14.Action by Stockholders Without a Meeting. So long as stockholders of the
Corporation have the right to act by written consent in accordance with Section 1 of ARTICLE
SEVEN of the Certificate of Incorporation, the following provisions shall apply:
(a)Record Date. For the purpose of determining the stockholders entitled to
consent to corporate action without a meeting as may be permitted by the Certificate of
Incorporation or the certificate of designation relating to any outstanding class or series of
preferred stock, the Board may fix a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted by the Board, and which record date shall
not be more than 10 (or the maximum number permitted by applicable law) days after the date on
which the resolution fixing the record date is adopted by the Board. Any stockholder of record
seeking to have the stockholders authorize or take action by consent in lieu of a meeting shall, by
written notice delivered to the Secretary at the Corporation’s principal place of business during
regular business hours, request that the Board fix a record date, which notice shall include the
text of any proposed resolutions. Notices delivered pursuant to this Section 14(a) of ARTICLE II
will be deemed received on any given day only if received prior to the close of business on such
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day (and otherwise, shall be deemed received on the next succeeding Business Day). The Board
shall promptly, but in all events within 10 days after the date on which such written notice is
properly delivered to and deemed received by the Secretary, adopt a resolution fixing the record
date (unless a record date has previously been fixed by the Board pursuant to the first sentence of
this Section 14(a) of ARTICLE II). If no record date has been fixed by the Board pursuant to this
Section 14(a) or otherwise within 10 days of receipt of a valid request by a stockholder, the
record date for determining stockholders entitled to consent to corporate action without a
meeting, when no prior action by the Board is required pursuant to applicable law, shall be the
first date after the expiration of such 10 day time period on which a signed consent setting forth
the action taken or proposed to be taken is delivered to the Corporation pursuant to Section 14(b)
of this ARTICLE II; provided, however, that if prior action by the Board is required by
applicable law, the record date for determining stockholders entitled to consent to corporate
action without a meeting shall in such an event be at the close of business on the day on which
the Board adopts the resolution taking such prior action.
(b)Generally. No consent shall be effective to take the corporate action
referred to therein unless consents signed by a sufficient number of stockholders to take such
action are delivered to the Corporation, in the manner required by this Section 14 of ARTICLE
II, within 60 (or the maximum number permitted by applicable law) days of the first date on
which a consent is delivered to the Corporation in the manner required by applicable law. The
validity of any consent executed by a proxy for a stockholder pursuant to an electronic
transmission transmitted to such proxy holder by or upon the authorization of the stockholder
shall be determined by or at the direction of the Secretary. A written record of the information
upon which the person making such determination relied shall be made and kept in the records of
the proceedings of the stockholders. Any such consent shall be inserted in the minute book as if
it were the minutes of a meeting of stockholders. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous consent shall be given by the Corporation (at its
expense) to those stockholders as of the record date for the action by consent who have not
consented and who would have been entitled to notice of the meeting if the action had been taken
at such meeting and the record date for the notice of such meeting were the record date for the
action by consent. A consent permitted by this Section 14 shall be delivered: (i) to the principal
place of business of the Corporation; (ii) to an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded; (iii) to the registered
office of the Corporation in the State of Delaware by hand or by certified or registered mail,
return receipt requested; or (iv) subject to the next sentence, in accordance with Section 116 of
the DGCL to an information processing system, if any, designated by the Corporation for
receiving such consents. In the case of delivery pursuant to the foregoing clause (iv), such
consent must set forth or be delivered with information that enables the Corporation to determine
the date of delivery of such consent and the identity of the person giving such consent, and, if
such consent is given by a person authorized to act for a stockholder or member as proxy, such
consent must comply with the applicable provisions of Sections 212(c)(2) and (3) of the DGCL.
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Section 15.Conduct of Meetings.
(a)Generally. Meetings of stockholders shall be presided over by the Chair, if
any, or in the Chair’s absence or disability, by the CEO (if the CEO is not also the Chair), or in
the CEO’s absence or disability, by the President of the Corporation (the “President”), or in the
President’s absence or disability, by a Vice President of the Corporation (the “Vice President”)
(in the order as determined by the Board), or in the absence or disability of the foregoing
persons, by a director or officer designated by the Board, or in the absence or disability of such
person, by a chair chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in the Secretary’s absence or disability, the chair of the meeting may appoint any person to act as
secretary of the meeting.
(b)Rules, Regulations, and Procedures. The Board may adopt by resolution
such rules, regulations, and procedures for the conduct of any meeting of stockholders of the
Corporation as it shall deem appropriate including, without limitation, such guidelines and
procedures as it may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a meeting. Except to
the extent inconsistent with such rules, regulations, and procedures as adopted by the Board, the
chair of any meeting of stockholders shall have the right and authority to prescribe such rules,
regulations, and procedures and to do all such acts as, in the judgment of such chair, are
appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures,
whether adopted by the Board or prescribed by the chair of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies, or such other persons as the chair of
the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; (v) limitations on the time allotted to questions or comments by
participants; and (vi) restrictions on the use of mobile phones, audio or video recording devices,
and similar devices at the meeting. The chair of the meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a nomination or matter or business
was not properly brought before the meeting and if such chair should so determine, such chair
shall so declare to the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent determined by the Board
or the chair of the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The chair of the meeting shall announce at
the meeting when the polls for each matter to be voted upon at the meeting will be opened and
closed. After the polls close, no ballots, proxies, or votes or any revocations or changes thereto
may be accepted. The chair of the meeting shall have the power, right, and authority, for any or
no reason, to convene, recess, and/or adjourn any meeting of stockholders.
(c)Inspectors of Elections. The Corporation may, and to the extent required
by law shall, in advance of any meeting of stockholders, appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more other persons may
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be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the chair of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be
officers, employees, or agents of the Corporation. No person who is a candidate for an office at
an election may serve as an inspector at such election. Each inspector, before entering upon the
discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of such inspector’s ability. The
inspector shall have the duties prescribed by law and, when the vote is completed, shall make a
certificate of the result of the vote taken and of such other facts as may be required by law.
Section 16.Remote Communication. If authorized by the Board in its sole discretion,
and subject to such guidelines and procedures as the Board may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means of remote
communication:
(a)participate in a meeting of stockholders; and
(b)be deemed present in person and vote at a meeting of stockholders
whether such meeting is to be held at a designated place or solely by means of remote
communication;
provided that
(c)the Corporation shall implement reasonable measures to verify that each
person deemed present and permitted to vote at the meeting by means of remote communication
is a stockholder or proxyholder;
(d)the Corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote
on matters submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings; and
(e)if any stockholder or proxyholder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
ARTICLE III
DIRECTORS
Section 1.General Powers. Except as otherwise provided in this Certificate of
Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or
under the direction of the Board.
Section 2.Regular Meetings and Special Meetings. Regular meetings of the Board
may be held without notice at such time and at such place as shall from time to time be
determined by resolution of the Board and publicized among all directors. Special meetings of
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the Board may be called by: (i) the Chair, if any; (ii) by the Secretary upon the written request of
a majority of the directors then in office; or (iii) if the Board then includes a director nominated
or designated for nomination by the Principal Stockholder or any Principal Stockholder Affiliate,
by any director so nominated or designated, and in each case shall be held at the place, if any, on
the date and at the time as he, she, or they shall fix. Any and all business may be transacted at a
special meeting of the Board.
Section 3.Notice of Meetings. Notice of regular meetings of the Board need not be
given except as otherwise required by law or these Bylaws. Notice of each special meeting of the
Board, and of each regular and annual meeting of the Board for which notice is required, shall be
given by the Secretary as hereinafter provided in this Section 3 of this ARTICLE III. Such notice
shall state the date, time, and place, if any, of the meeting. Notice of any special meeting, and of
any regular or annual meeting for which notice is required, shall be given to each director at
least: (A) 24 hours before the meeting if by telephone or by being personally delivered or sent by
overnight courier, telecopy, electronic transmission, email, or similar means; or (B) five days
before the meeting if delivered by mail to the director’s residence or usual place of business.
Such notice shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage prepaid, or when transmitted if sent by telex, telecopy, electronic
transmission, email, or similar means. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board need be specified in the notice or waiver of notice of such
meeting.
Section 4.Waiver of Notice. Any director may waive notice of any meeting of
directors by a writing signed by the director or by electronic transmission. Any member of the
Board or any committee thereof who is present at a meeting shall have waived notice of such
meeting except when such member attends for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not lawfully called or
convened and does not further participate in the meeting. Such member shall be conclusively
presumed to have assented to any action taken unless his or her dissent shall be entered in the
minutes of the meeting or unless his or her written dissent to such action shall be filed with the
person acting as the secretary of the meeting before the adjournment thereof or shall be
forwarded by registered mail to the Secretary immediately after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor of such action.
Section 5.Chair of the Board, Quorum, Required Vote, and Adjournment. Subject to
the provisions regarding the appointment of the Chair in the Certificate of Incorporation, the
Board may elect the Chair. The Chair must be a director and may be a director who is also
currently an officer of the Corporation. Subject to the provisions of these Bylaws and the
direction of the Board, he, she, or they shall perform all duties and have all powers which are
commonly incident to the position of Chair or which are delegated to him or her by the Board,
preside at all meetings of the stockholders and Board at which he or she is present and have such
powers and perform such duties as the Board may from time to time prescribe. If the Chair is not
present at a meeting of the Board, the CEO (if the CEO is a director and is not also the Chair)
shall preside at such meeting, and, if the CEO is not present at such meeting, a majority of the
directors present at such meeting shall elect one of the directors present at the meeting to so
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preside. At all meetings of the Board, a majority of the directors then in office shall constitute a
quorum for the transaction of business, provided, however, that a quorum shall never be less than
one-third the total number of directors. Unless by express provision of an applicable law, the
Certificate of Incorporation, or these Bylaws a different vote is required, the vote of a majority of
directors present at a meeting at which a quorum is present shall be the act of the Board. At any
meeting of the Board, business shall be transacted in such order and manner as the Board may
from time to time determine. If a quorum shall not be present at any meeting of the Board, the
directors present thereat may, to the fullest extent permitted by law, adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6.Committees.
(a)The Board may designate one or more committees, including an executive
committee, consisting of one or more of the directors of the Corporation, and any committees
required by the rules and regulations of such exchange as any securities of the Corporation are
listed. The Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the committee. Except to
the extent restricted by applicable law or the Certificate of Incorporation, each such committee,
to the extent provided by the DGCL and in the resolution creating it, shall have and may exercise
all the powers and authority of the Board. Each such committee shall serve at the pleasure of the
Board. Each committee shall keep regular minutes of its meetings and report the same to the
Board upon request.
(b)Each committee of the Board may fix its own rules of procedure and shall hold its
meetings as provided by such rules, except as may otherwise be provided by a resolution of the
Board designating such committee. Unless otherwise provided in such a resolution, the presence
of at least a majority of the members of the committee shall be necessary to constitute a quorum.
All matters shall be determined by a majority vote of the members present at a meeting at which
a quorum is present. Unless otherwise provided in such a resolution, in the event that a member
and that member’s alternate, if alternates are designated by the Board, of such committee is or
are absent or disqualified, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in place of any such absent or
disqualified member.
Section 7.Action by Written Consent. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of
the Board, or of any committee thereof, may be taken without a meeting if all members of the
Board or such committee, as the case may be, consent thereto in writing or by electronic
transmission. After the action is taken, the consent or consents relating thereto shall be filed with
the minutes of proceedings of the Board or committee in the same paper form or electronic form
as the minutes are maintained.
Section 8.Compensation. The Board shall have the authority to fix the
compensation, including fees, reimbursement of expenses, and equity compensation, of directors
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for services to the Corporation in any capacity, including for attendance of meetings of the Board
or participation on any committees. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 9.Reliance on Books and Records. A member of the Board, or a member of
any committee designated by the Board, shall, in the performance of such member’s duties, be
fully protected in relying in good faith upon records of the Corporation and upon such
information, opinions, reports, or statements presented to the Corporation by any of the
Corporation’s officers or employees, or committees of the Board, or by any other person as to
matters the member reasonably believes are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 10.Telephonic and Other Meetings. Unless restricted by the Certificate of
Incorporation, any one or more members of the Board or any committee thereof may participate
in a meeting of the Board or such committee by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
Section 1.Number and Election. Subject to the authority of the CEO to appoint
officers as set forth in Section 11 of this ARTICLE IV, the officers of the Corporation shall be
elected by the Board and may consist of a CEO, a President, one or more Vice Presidents, a
Secretary, a Chief Financial Officer (the “CFO”), a Treasurer (the “Treasurer”), and such other
officers and assistant officers as may be deemed necessary or desirable by the Board. Any
number of offices may be held by the same person. In its discretion, the Board may choose not to
fill any office for any period as it may deem advisable.
Section 2.Term of Office. Each officer shall hold office until a successor is duly
elected and qualified or until his or her earlier death, resignation, or removal as hereinafter
provided.
Section 3.Removal. Any officer or agent of the Corporation may be removed with or
without cause by the Board, a duly authorized committee thereof or by such officers as may be
designated by a resolution of the Board, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer appointed by the CEO in
accordance with Section 11 of this ARTICLE IV may also be removed by the CEO in his or her
sole discretion.
Section 4.Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification, or otherwise may be filled by the Board or the CEO in
accordance with Section 11 of this ARTICLE IV.
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Section 5.Compensation. Compensation of all executive officers shall be approved
by the Board or a duly authorized committee thereof, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a director of the Corporation.
Section 6.Chief Executive Officer. The CEO shall have the powers and perform the
duties incident to that position. The CEO shall, in the absence of the Chair (if the CEO is not also
the Chair), or if a Chair shall not have been elected, preside at each meeting of (a) the Board if
the CEO is a director and (b) the stockholders. Subject to the powers of the Board and the Chair,
the CEO shall be in general and active charge of the entire business and affairs of the
Corporation and shall be its chief policy-making officer. The CEO shall have such other powers
and perform such other duties as may be prescribed by the Board or provided in these Bylaws.
The CEO is authorized to execute bonds, mortgages, and other contracts requiring a seal under
the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be expressly delegated by
the Board to some other officer or agent of the Corporation. Whenever the President is unable to
serve, by reason of sickness, absence, or otherwise, the CEO shall perform all the duties and
responsibilities and exercise all the powers of the President.
Section 7.President. The President of the Corporation shall, subject to the powers of
the Board, the Chair, and the CEO, have general charge of the business, affairs, and property of
the Corporation, and, in the absence of the CEO, control over its officers, agents, and employees.
The President shall see that all orders and resolutions of the Board are carried into effect. The
President is authorized, in the absence of the CEO, to execute bonds, mortgages, and other
contracts requiring a seal under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent of the Corporation. The
President shall, in the absence of the CEO, act with all of the powers and be subject to all of the
restrictions of the CEO. The President shall have such other powers and perform such other
duties as may be prescribed by the Chair, the CEO, the Board, or as may be provided in these
Bylaws or otherwise are incident to the position of President.
Section 8.Vice Presidents. The Vice President, or if there shall be more than one, the
Vice Presidents, in the order determined by the Board or the Chair, shall, perform such duties
and have such powers as the Board, the Chair, the CEO, the President, or these Bylaws may,
from time to time, prescribe or which otherwise are incident to the position of Vice President.
The Vice Presidents may also be designated as Executive Vice Presidents or Senior Vice
Presidents, as the Board may from time to time prescribe.
Section 9.Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the Board (other than executive sessions thereof) and all meetings of the
stockholders and record all the proceedings of the meetings in a book or books to be kept for that
purpose or shall ensure that his or her designee attends each such meeting to act in such capacity.
Under the Board’s supervision, the Secretary shall give, or cause to be given, all notices required
to be given by these Bylaws or by law; shall have such powers and perform such duties as the
Board, the Chair, the CEO, the President, or these Bylaws may, from time to time, prescribe or
26
which otherwise are incident to the position of Secretary; and shall have custody of the corporate
seal of the Corporation. The Secretary, or an Assistant Secretary, shall have authority to affix the
corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such Assistant Secretary. The Board may give general authority
to any other officer to affix the seal of the Corporation and to attest the affixing by his or her
signature. The Assistant Secretary, or if there be more than one, any of the Assistant Secretaries,
shall in the absence or disability of the Secretary, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as the Board, the
Chair, the CEO, the President, or Secretary may, from time to time, prescribe.
Section 10.Chief Financial Officer and Treasurer. The CFO shall have the custody of
the corporate funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation as shall be necessary or desirable in
accordance with applicable law or generally accepted accounting principles; shall deposit all
monies and other valuable effects in the name and to the credit of the Corporation as may be
ordered by the Chair or the Board; shall receive, and give receipts for, moneys due and payable
to the Corporation from any source whatsoever; shall cause the funds of the Corporation to be
disbursed when such disbursements have been duly authorized, taking proper vouchers for such
disbursements; and shall render to the Board, at its regular meeting or when the Board so
requires, an account of the financial condition and operations of the Corporation; shall have such
powers and perform such duties as the Board, the Chair, the CEO, the President, or these Bylaws
may, from time to time, prescribe or which otherwise are incident to the position of CFO. The
Treasurer shall in the absence or disability of the CFO, perform the duties and exercise the
powers of the CFO, subject to the power of the Board. The Treasurer, if any, shall perform such
other duties and have such other powers as the Board may, from time to time, prescribe.
Section 11.Appointed Officers. In addition to officers designated by the Board in
accordance with this ARTICLE IV, the CEO shall have the authority to appoint other officers below
the level of Board-appointed Vice President as the CEO may from time to time deem expedient and
may designate for such officers titles that appropriately reflect their positions and responsibilities.
Such appointed officers shall have such powers and shall perform such duties as may be assigned to
them by the CEO or the senior officer to whom they report, consistent with corporate policies. An
appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal
by the CEO or the Board at any time, either with or without cause.
Section 12.Other Officers, Assistant Officers, and Agents. Officers, assistant officers,
and agents, if any, other than those whose duties are provided for in these Bylaws, shall have
such authority and perform such duties as may from time to time be prescribed by resolution of
the Board and, to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board.
Section 13.Officers’ Bonds or Other Security. If required by the Board, any officer of
the Corporation shall give a bond or other security for the faithful performance of such officer’s
duties, in such amount and with such surety as the Board may require.
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Section 14.Delegation of Authority. The Board may by resolution delegate the
powers and duties of such officer to any other officer or to any director, or to any other person
whom it may select.
ARTICLE V
CERTIFICATES OF STOCK
Section 1.Form. The shares of stock of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution that some or all of any or all
classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the Corporation. If
shares are represented by certificates, the certificates shall be in such form as required by
applicable law and as determined by the Board. Each certificate shall certify the number of
shares owned by such holder in the Corporation and shall be signed by, or in the name of the
Corporation by two authorized officers of the Corporation including, but not limited to, the Chair
(if an officer), the CEO (if the CEO is not also the Chair), the President, a Vice President, the
CFO, the Treasurer, the Secretary, and an Assistant Secretary. Any or all signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed, or
whose facsimile signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer, transfer agent, or registrar of the Corporation whether because of
death, resignation, or otherwise before such certificate or certificates have been issued by the
Corporation, such certificate or certificates may nevertheless be issued as though the person or
persons who signed such certificate or certificates or whose facsimile signature or signatures
have been used thereon had not ceased to be such officer, transfer agent, or registrar of the
Corporation at the date of issue. All certificates for shares shall be consecutively numbered or
otherwise identified. The Board may appoint a bank or trust company organized under the laws
of the United States or any state thereof to act as its transfer agent, registrar, or both in
connection with the transfer of any class or series of securities of the Corporation. The
Corporation, or its designated transfer agent or other agent, shall keep a book or set of books to
be known as the stock transfer books of the Corporation, containing the name of each holder of
record, together with such holder’s address and the number and class or series of shares held by
such holder and the date of issue. When shares are represented by certificates, the Corporation
shall issue and deliver to each holder to whom such shares have been issued or transferred,
certificates representing the shares owned by such holder, and shares of stock of the Corporation
shall only be transferred on the books of the Corporation by the holder of record thereof or by
such holder’s attorney duly authorized in writing, upon surrender to the Corporation or its
designated transfer agent or other agent of the certificate or certificates for such shares endorsed
by the appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization, and other matters as the Corporation may reasonably
require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty
of the Corporation to issue a new certificate to the person entitled thereto, cancel the old
certificate or certificates, and record the transaction on its books. When shares are not
represented by certificates, shares of stock of the Corporation shall only be transferred on the
books of the Corporation by the holder of record thereof or by such holder’s attorney duly
authorized in writing, with such evidence of the authenticity of such transfer, authorization, and
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other matters as the Corporation may reasonably require, and accompanied by all necessary stock
transfer stamps, and within a reasonable time after the issuance or transfer of such shares, the
Corporation shall, if required by applicable law, send the holder to whom such shares have been
issued or transferred a written statement of the information required by applicable law. Unless
otherwise provided by applicable law, the Certificate of Incorporation, these Bylaws, or any
other instrument, the rights and obligations of the holders of uncertificated stock, and the rights
and obligations of the holders of certificates representing stock of the same class and series shall
be identical.
Section 2.Lost Certificates. The Corporation may issue or direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate or certificates
previously issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the
making of an affidavit of that fact by the owner of the lost, stolen, or destroyed certificate. When
authorizing such issue of a new certificate or certificates or uncertificated shares, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give
the Corporation a bond in such sum as it may direct, sufficient to indemnify the Corporation
against any claim that may be made against the Corporation on account of the alleged loss, theft,
or destruction of any such certificate or the issuance of such new certificate or uncertificated
shares.
Section 3.Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its records as the owner of shares of stock to receive
dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of
an owner, except as otherwise required by applicable law. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of stock on the part of
any other person, whether or not it shall have express or other notice thereof, except as otherwise
required by applicable law.
Section 4.Fixing a Record Date for Purposes Other Than Stockholder Meetings or
Actions by Written Consent. In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend, other distribution or allotment, or any rights, or the
stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of
stock, or for the purposes of any other lawful action (other than stockholder meetings and
stockholder consents which are expressly governed by Sections 12, 13, 14, and 15 of ARTICLE
II hereof), the Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date shall be not more
than 60 days prior to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
ARTICLE VI
GENERAL PROVISIONS
Section 1.Dividends. Subject to and in accordance with applicable law, the
Certificate of Incorporation and any certificate of designation relating to any series of preferred
29
stock, dividends upon the shares of capital stock of the Corporation may be declared and paid by
the Board in accordance with applicable law. Dividends may be paid in cash, in property, or in
shares of the Corporation’s capital stock, subject to the provisions of applicable law and the
Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends a reserve or reserves for any proper purpose.
The Board may modify or abolish any such reserves in the manner in which they were created.
Section 2.Checks, Notes, Drafts, Etc. All checks, notes, drafts, or other orders for the
payment of money of the Corporation shall be signed, endorsed, or accepted in the name of the
Corporation by such officer, officers, person, or persons as from time to time may be designated
by the Board, or by an officer or officers authorized by the Board to make such designation.
Section 3.Contracts. In addition to the powers otherwise granted to officers pursuant
to ARTICLE IV, the Board may authorize any officer or officers, or any agent or agents, in the
name and on behalf of the Corporation to enter into or execute and deliver any and all deeds,
bonds, mortgages, contracts, and other obligations or instruments, and such authority may be
general or confined to specific instances.
Section 4.Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution
of the Board.
Section 5.Corporate Seal. The Board may provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the Corporation and the words
“Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. Notwithstanding the foregoing, no seal shall be
required by virtue of Section 5 of this ARTICLE VI.
Section 6.Voting Securities Owned By Corporation. Voting securities in any other
corporation or entity held by the Corporation shall be voted by the Chair, CEO, the President, or
the CFO, unless the Board specifically confers authority to vote with respect thereto, which
authority may be general or confined to specific instances, upon some other person or officer.
Any person authorized to vote securities shall have the power to appoint proxies, with general
power of substitution.
Section 7.Facsimile/Electronic Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws, Docusign, facsimile, and
other forms of electronic signatures of any officer or director of the Corporation may be used to
the fullest extent permitted by applicable law.
Section 8.Section Headings. Section headings in these Bylaws are for convenience
of reference only and shall not be given any substantive effect in limiting or otherwise construing
any provision herein.
Section 9.Inconsistent Provisions. In the event that any provision (or part thereof) of
these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation,
the DGCL, any other applicable law, or the Director Nomination Agreement, the provision (or
30
part thereof) of these Bylaws shall be construed to be consistent with such other provision or
provisions, and to the extent such provision may not be so construed, such provision shall be
deemed amended to incorporate such other provision so as to eliminate any such inconsistency
and as so amended shall be given full force and effect.
ARTICLE VII
INDEMNIFICATION
Section 1.Right to Indemnification and Advancement. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved (including
involvement, without limitation, as a witness) in any actual or threatened action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (a “proceeding”), by reason
of the fact that he or she is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation as a director,
manager, officer, employee, or agent of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to an employee benefit plan (an
“indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or officer, shall be
indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL,
as the same exists or may hereafter be amended, against all expense, liability, and loss (including
attorneys’ fees and related disbursements, judgments, fines, excise taxes, or penalties under the
Employee Retirement Income Security Act of 1974, as amended from time to time (“ERISA”)
and any other penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith, and such indemnification shall continue as
to an indemnitee who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the indemnitee’s heirs, executors, and administrators; provided, however, that,
except as provided in Section 2 of this ARTICLE VII with respect to proceedings to enforce
rights to indemnification and advance of expenses (as defined herein), the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was authorized in the specific case by
the Board of the Corporation. In addition to the right to indemnification conferred herein, an
indemnitee shall also have the right, to the fullest extent not prohibited by law, to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of its final
disposition (an “advance of expenses”); provided, however, that if and to the extent that the
DGCL requires, an advance of expenses shall be made only upon delivery to the Corporation of
an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (a “final adjudication”) that such indemnitee is not entitled to be
indemnified for such expenses under Section 1 of this ARTICLE VII or otherwise. The
Corporation may also, by action of its Board, provide indemnification and advancement to
employees and agents of the Corporation. Any reference to an officer of the Corporation in this
ARTICLE VII shall be deemed to refer exclusively to the Chair, CEO, President, CFO,
Secretary, and Treasurer appointed pursuant to ARTICLE IV, and to any Vice President,
Assistant Secretary, assistant treasurer, or other officer of the Corporation appointed by the
Board or the CEO pursuant to ARTICLE IV of these Bylaws, and any reference to an officer of
31
any other enterprise shall be deemed to refer exclusively to an officer appointed by the Board or
equivalent governing body of such other entity pursuant to the certificate of incorporation and
bylaws or equivalent organizational documents of such other enterprise. The fact that any person
who is or was an employee of the Corporation or an employee of any other enterprise has been
given or has used the title of “Vice President” or any other title, including any title granted to
such person by the CEO pursuant to Section 11 of ARTICLE IV, that could be construed to
suggest or imply that such person is or may be an officer of the Corporation or of such other
enterprise shall not result in such person being constituted as, or being deemed to be, an officer
of the Corporation or of such other enterprise for purposes of this ARTICLE VII unless such
person’s appointment to such office was approved by the Board pursuant to ARTICLE IV.
Section 2.Procedure for Indemnification. Any claim for indemnification or advance
of expenses by an indemnitee under Section 2 of this ARTICLE VII shall be made promptly, and
in any event within 45 days (or, in the case of an advance of expenses, 20 days, provided that the
director or officer has delivered the undertaking contemplated by Section 1 of this ARTICLE VII
if required), upon the written request of the indemnitee. If the Corporation denies a written
request for indemnification or advance of expenses, in whole or in part, or if payment in full
pursuant to such request is not made within 45 days (or, in the case of an advance of expenses,
20 days, provided that the indemnitee has delivered the undertaking contemplated by Section 1
of this ARTICLE VII if required), the right to indemnification or advances as granted by this
ARTICLE VII shall be enforceable by the indemnitee in any court of competent jurisdiction.
Such person’s costs and expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation to the fullest extent permitted by applicable law. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of expenses where the
undertaking required pursuant to Section 1 of this ARTICLE VII, if any, has been tendered to the
Corporation) that the claimant has not met the applicable standard of conduct which makes it
permissible under the DGCL for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proof shall be on the Corporation to the fullest extent permitted by
law. Neither the failure of the Corporation (including the Board, a committee thereof,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including the Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3.Insurance. The Corporation may purchase and maintain insurance on its
own behalf and on behalf of any person who is or was or has agreed to become a director,
officer, employee, or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, partner, member, trustee, administrator, employee, or agent of
another corporation, partnership, joint venture, limited liability company, trust, or other
enterprise against any expense, liability, or loss asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as such, whether or not the
32
Corporation would have the power to indemnify such person against such expenses, liability, or
loss under the DGCL.
Section 4.Service for Subsidiaries. Any person serving as a director, officer, partner,
member, trustee, administrator, employee, or agent of another corporation, partnership, limited
liability company, joint venture, trust, or other enterprise, at least 50% of whose equity interests
are owned by the Corporation (a “subsidiary” for purposes of this ARTICLE VII) shall be
conclusively presumed to be serving in such capacity at the request of the Corporation.
Section 5.Reliance. Persons who after the date of the adoption of this provision
become or remain directors or officers of the Corporation or who, while a director or officer of
the Corporation, become or remain a director, manager, officer, employee, or agent of a
subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of
expenses, and other rights contained in this ARTICLE VII in entering into or continuing such
service. To the fullest extent permitted by law, the rights to indemnification and to the advance
of expenses conferred in this ARTICLE VII shall apply to claims made against an indemnitee
arising out of acts or omissions which occurred or occur both prior and subsequent to the
adoption hereof. Any amendment, alteration, or repeal of this ARTICLE VII that adversely
affects any right of an indemnitee or its successors shall be prospective only and shall not limit,
eliminate, or impair any such right with respect to any proceeding involving any occurrence or
alleged occurrence of any action or omission to act that took place prior to such amendment or
repeal.
Section 6.Non-Exclusivity of Rights; Continuation of Rights of Indemnification.
The rights to indemnification and to the advance of expenses conferred in this ARTICLE VII
shall not be exclusive of any other right which any person may have or hereafter acquire under
the Certificate of Incorporation or under any statute, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. All rights to indemnification under this ARTICLE VII shall
be deemed to be a contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this ARTICLE VII is in
effect. Any repeal or modification of this ARTICLE VII or repeal or modification of relevant
provisions of the DGCL or any other applicable laws shall not in any way diminish any rights to
indemnification and advancement of expenses of such director or officer or the obligations of the
Corporation arising hereunder with respect to any proceeding arising out of, or relating to, any
actions, transactions, or facts occurring prior to the final adoption of such repeal or modification.
Section 7.Merger or Consolidation. For purposes of this ARTICLE VII, references
to the “Corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify
its directors, officers, employees, or agents, so that any person who is or was a director, officer,
employee, or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall stand in the same position under this
33
ARTICLE VII with respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence had continued.
Section 8.Savings Clause. To the fullest extent permitted by law, if this ARTICLE
VII or any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify and advance expenses to each
person entitled to indemnification under Section 1 of this ARTICLE VII as to all expense,
liability, and loss (including attorneys’ fees and related disbursements, judgments, fines, ERISA
excise taxes and penalties, and any other penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred or suffered by such person and for which indemnification and
advancement of expenses is available to such person pursuant to this ARTICLE VII to the fullest
extent permitted by any applicable portion of this ARTICLE VII that shall not have been
invalidated.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended, altered, changed, or repealed or new Bylaws adopted
only in accordance with Section 1 of ARTICLE TEN of the Certificate of Incorporation.
*    *    *    *    *
EX-4.1 5 exhibit41-8xkxrra.htm EX-4.1 Exhibit 4.1 - 8-K - RRA
Exhibit 4.1
ACCELEVATION HOLDINGS CORP.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of
September 29, 2026 among Accelevation Holdings Corp., a Delaware corporation (the “Company”), each
of the investors listed on the signature pages hereto under the caption “Sponsor Investors” (collectively,
the “Sponsor Investors”), each Person who executes a Joinder as an “Other Investor” (collectively, the
“Other Investors”) and each of the executives who executes a Joinder as an “Executive” (collectively, the
“Executives”). Except as otherwise specified herein, all capitalized terms used in this Agreement are
defined in Exhibit A attached hereto.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
Section 1Demand Registrations.
(a)Requests for Registration.  At any time and from time to time, the Sponsor
Investors may request registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration statement (“Long-Form Registrations”) or on
Form S-3 or any similar short-form registration statement (“Short-Form Registrations”), if available (any
such requested registration, a “Demand Registration”).  The Sponsor Investors may request that any
Demand Registration be made pursuant to Rule 415 under the Securities Act (a “Shelf Registration”) and
(if the Company is a WKSI at the time any such request is submitted to the Company or will become one
by the time of the filing of such Shelf Registration) that such Shelf Registration be an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration
Statement”).  Each request for a Demand Registration must specify the approximate number or dollar
value of Registrable Securities requested to be registered by the requesting Holders and (if known) the
intended method of distribution.  The Sponsor Investors will be entitled to request an unlimited number of
Demand Registrations. The Company will pay all Expenses (as defined and described in Section 5),
whether or not any such registration is consummated.
(b)Notice to Other Holders.  Within four (4) Business Days after receipt of any such
request, the Company will give written notice of the Demand Registration to all other Holders and,
subject to the terms of Section 1(e), will include in such Demand Registration (and in all related
registrations and qualifications under state blue sky laws and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for inclusion therein within
ten (10) days after the receipt of the Company’s notice; provided that, with the written consent of the
Sponsor Investors, the Company may, or at the written request of the Sponsor Investors, the Company
shall, instead provide notice of the Demand Registration to all other Holders within three (3) Business
Days following the non-confidential filing of the registration statement with respect to the Demand
Registration so long as such registration statement is not an Automatic Shelf Registration Statement. 
(c)Form of Registrations.  All Long-Form Registrations will be underwritten
registrations unless otherwise approved by the Sponsor Investors. Demand Registrations will be Short-
Form Registrations whenever the Company is permitted to use any applicable short form unless otherwise
requested by the Sponsor Investors.
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(d)Shelf Registrations.
(i)For so long as a registration statement for a Shelf Registration (a “Shelf
Registration Statement”) is and remains effective, the Sponsor Investors will have the right at any
time or from time to time to elect to sell pursuant to an offering (including an underwritten
offering) Registrable Securities available for sale pursuant to such registration statement (“Shelf
Registrable Securities”).  If the Sponsor Investors desire to sell Registrable Securities pursuant to
an underwritten offering, then the Sponsor Investors may deliver to the Company a written notice
(a “Shelf Offering Notice”) specifying the number of Shelf Registrable Securities that the
Sponsor Investors desire to sell pursuant to such underwritten offering (the “Shelf Offering”).  As
promptly as practicable, but in no event later than two (2) Business Days after receipt of a Shelf
Offering Notice, the Company will give written notice of such Shelf Offering Notice to all other
Holders of Shelf Registrable Securities that have been identified as selling stockholders in such
Shelf Registration Statement and are otherwise permitted to sell in such Shelf Offering, which
such notice shall request that each such Holder specify, within seven (7) days after the
Company’s receipt of the Shelf Offering Notice, the maximum number of Shelf Registrable
Securities such Holder desires to be disposed of in such Shelf Offering.  The Company, subject to
Section 1(e) and Section 7, will include in such Shelf Offering all Shelf Registrable Securities
with respect to which the Company has received timely written requests for inclusion.  The
Company will, as expeditiously as possible (and in any event within fourteen (14) days after the
receipt of a Shelf Offering Notice), but subject to Section 1(e), use its best efforts to consummate
such Shelf Offering.
(ii)If the Sponsor Investors desire to engage in an underwritten block trade
or bought deal pursuant to a Shelf Registration Statement (either through filing an Automatic
Shelf Registration Statement or through a take-down from an already existing Shelf Registration
Statement) (each, an “Underwritten Block Trade”), then notwithstanding the time periods set
forth in Section 1(d)(i), the Sponsor Investors may notify the Company of the Underwritten Block
Trade not less than two (2) Business Days prior to the day such offering is first anticipated to
commence.  If requested by the Sponsor Investors, the Company will promptly notify other
Holders of such Underwritten Block Trade and such notified Holders (each, a “Potential
Participant”) may elect whether or not to participate no later than the next Business Day (i.e. one
(1) Business Day prior to the day such offering is to commence) (unless a longer period is agreed
to by the Sponsor Investors), and the Company will as expeditiously as possible use its best
efforts to facilitate such Underwritten Block Trade (which may close as early as two (2) Business
Days after the date it commences); provided further that, notwithstanding the provisions of
Section 1(d)(i), no Holder (other than Holders of Sponsor Investor Registrable Securities) will be
permitted to participate in an Underwritten Block Trade without the written consent of the
Sponsor Investors.  Any Potential Participant’s request to participate in an Underwritten Block
Trade shall be binding on the Potential Participant.
(iii)All determinations as to whether to complete any Shelf Offering and as
to the timing, manner, price and other terms of any Shelf Offering contemplated by this Section
1(d) shall be determined by the Sponsor Investors, and the Company shall use its best efforts to
cause any Shelf Offering to occur in accordance with such determinations as promptly as
practicable.
(iv)The Company will, at the request of the Sponsor Investors, file any
prospectus supplement or any post-effective amendments and otherwise take any action necessary
-3-
to include therein all disclosure and language deemed necessary or advisable by the Sponsor
Investors to effect such Shelf Offering.
(e)Priority on Demand Registrations and Shelf Offerings.  The Company will not
include in any Demand Registration any securities that are not Registrable Securities without the prior
written consent of the Sponsor Investors.  If a Demand Registration or a Shelf Offering is an underwritten
offering and the managing underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and (if permitted hereunder) other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities (if any), which can be sold
therein without adversely affecting the marketability, proposed offering price, timing or method of
distribution of the offering, then the Company will include in such offering (prior to the inclusion of any
securities which are not Registrable Securities) the number of Registrable Securities requested to be
included by any Holder which, in the opinion of such underwriters, can be sold, without any such adverse
effect, pro rata among such Holders on the basis of the number of Registrable Securities owned by each
such Holder.
(f)Restrictions on Demand Registration and Shelf Offerings.
(i)The Company may postpone, for up to 60 days (or with the consent of
the Sponsor Investors, a longer period) from the date of the request (the “Suspension Period”), the
filing or the effectiveness of a registration statement for a Demand Registration or suspend the
use of a prospectus that is part of a Shelf Registration Statement (and therefore suspend sales of
the Shelf Registrable Securities) by providing written notice to the Holders if the following
conditions are met: (A) the Company determines that the offer or sale of Registrable Securities
would reasonably be expected to have a material adverse effect on any proposal or plan by the
Company or any Subsidiary to engage in any material acquisition of assets or stock (other than in
the ordinary course of business) or any material merger, consolidation, tender offer,
recapitalization, reorganization, financing or other transaction involving the Company and (B)
upon advice of counsel, the sale of Registrable Securities pursuant to the registration statement
would require disclosure of material non-public information not otherwise required to be
disclosed under applicable law, and either (x) the Company has a bona fide business purpose for
preserving the confidentiality of such transaction or (y) such transaction renders the Company
unable to comply with SEC requirements, in each case under circumstances that would make it
impractical or inadvisable to cause the registration statement (or such filings) to become effective
or to promptly amend or supplement the registration statement on a post effective basis, as
applicable.  The Company may delay or suspend the effectiveness of a Demand Registration or
Shelf Registration Statement pursuant to this Section 1(f)(i) only once in any twelve (12)-month
period (for avoidance of doubt, in addition to the Company’s rights and obligations under Section
4(a)(vi)) unless additional delays or suspensions are approved by the Sponsor Investors.
(ii)In the case of an event that causes the Company to suspend the use of a
Shelf Registration Statement as set forth in Section 1(f)(i) above or pursuant to Section 4(a)(vi) (a
“Suspension Event”), the Company will give a notice to the Holders whose Registrable Securities
are registered pursuant to such Shelf Registration Statement (a “Suspension Notice”) to suspend
sales of the Registrable Securities and such notice must state generally the basis for the notice and
that such suspension will continue only for so long as the Suspension Event or its effect is
continuing.  Each Holder agrees not to effect any sales of its Registrable Securities pursuant to
such Shelf Registration Statement (or such filings) at any time after it has received a Suspension
Notice from the Company and prior to receipt of an End of Suspension Notice.  A Holder may
recommence effecting sales of the Registrable Securities pursuant to the Shelf Registration
-4-
Statement (or such filings) following further written notice to such effect (an “End of Suspension
Notice”) from the Company, which End of Suspension Notice will be given by the Company to
the Holders promptly following the conclusion of any Suspension Event (and in any event during
the permitted Suspension Period).
(g)Selection of Counsel and Underwriters.  The Sponsor Investors shall select each
of the legal counsel to the Company, the investment banker(s) and manager(s) to administer any
underwritten offering in connection with any Demand Registration or Shelf Offering.
(h)Other Registration Rights.  Except as provided in this Agreement, the Company
will not grant to any Person(s) the right to request the Company or any Subsidiary to register any equity
securities of the Company or any Subsidiary, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of the Sponsor Investors; provided that,
with the prior approval of the Sponsor Investors, the Company may grant rights to employees of the
Company and its Subsidiaries to participate in Piggyback Registrations so long as they sign a Joinder as
an “Executive”  and Holder of “Executive Registrable Securities” hereunder.
(i)Revocation of Demand Notice or Shelf Offering Notice.  At any time prior to the
effective date of the registration statement relating to a Demand Registration or the “pricing” of any
offering relating to a Shelf Offering Notice, the Sponsor Investors who initiated such Demand
Registration or Shelf Offering may revoke or withdraw such notice of a Demand Registration or Shelf
Offering Notice on behalf of all Holders participating in such Demand Registration or Shelf Offering
without liability to such Holders (including, for the avoidance of doubt, the other Participating Sponsor
Investors), in each case by providing written notice to the Company.
(j)Confidentiality.  Each Holder agrees to treat as confidential the receipt of any
notice hereunder (including notice of a Demand Registration, a Shelf Offering Notice and a Suspension
Notice) and the information contained therein, and not to disclose or use the information contained in any
such notice (or the existence thereof) without the prior written consent of the Company until such time as
the information contained therein is or becomes available to the public generally (other than as a result of
disclosure by such Holder in breach of the terms of this Agreement).
Section 2Piggyback Registrations.
(a)Right to Piggyback.  Whenever the Company proposes to register any of its
equity securities under the Securities Act (including primary and secondary registrations, and other than
pursuant to an Excluded Registration) (a “Piggyback Registration”), the Company will give prompt
written notice (and in any event within three (3) Business Days after the public filing of the registration
statement relating to the Piggyback Registration) to all Holders of its intention to effect such Piggyback
Registration and, subject to the terms of Section 2(b) and Section 2(c), will include in such Piggyback
Registration (and in all related registrations or qualifications under blue sky laws and in any related
underwriting) all Registrable Securities with respect to which the Company has received written requests
for inclusion therein within ten (10) days after delivery of the Company’s notice; provided that the
Company shall not be required to provide such notice or include any Registrable Securities in such
registration if the Sponsor Investors elect not to include any Sponsor Investor Registrable Securities in
such registration, unless the Sponsor Investors otherwise consent in writing. Any Participating Sponsor
Investor may withdraw its request for inclusion at any time prior to executing the underwriting agreement,
or if none, prior to the applicable registration statement becoming effective.
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(b)Priority on Primary Registrations. Other than the securities the Company
proposes to register on its own behalf, the Company will not include in any Piggyback Registration any
securities that are not Registrable Securities without the prior written consent of the Sponsor Investors. If
a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability, proposed offering price, timing or method of distribution of
the offering, the Company will include in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Registrable Securities requested to be included in such registration by any Holder
which, in the opinion of such underwriters, can be sold,  without any such adverse effect, pro rata among
such Holders on the basis of the number of Registrable Securities owned by each such Holder and (iii)
third, other securities requested to be included in such registration which, in the opinion of the
underwriters, can be sold without any such adverse effect.
(c)Priority on Secondary Registrations. Other than the securities the Company
proposes to register on its own behalf, the Company will not include in any Piggyback Registration any
securities that are not Registrable Securities without the prior written consent of the Sponsor Investors. If
a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s
equity securities (other than pursuant to Section 1 hereof), and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without adversely affecting the
marketability, proposed offering price, timing or method of distribution of the offering, the Company will
include in such registration (i) first, the securities requested to be included therein by the Holders initially
requesting such registration which, in the opinion of the underwriters, can be sold without any such
adverse effect, (ii) second, the Registrable Securities requested to be included in such registration by any
other Holder which, in the opinion of such underwriters, can be sold, without any such adverse effect, pro
rata among such Holders on the basis of the number of Registrable Securities owned by each such Holder
and (iii) third, other securities requested to be included in such registration which, in the opinion of the
underwriters, can be sold without any such adverse effect.
(d)Right to Terminate Registration. The Company will have the right to terminate or
withdraw any registration initiated by it under this Section 2, whether or not any holder of Registrable
Securities has elected to include securities in such registration. 
(e)Selection of Counsel and Underwriters. If any Piggyback Registration is an
underwritten offering, the Sponsor Investors shall select each of the legal counsel for the Company, the
investment bank(s) and manager(s) for the offering.
Section 3Stockholder Lock-Up Agreements and Company Holdback Agreement.
(a)Stockholder Lock-up Agreements. In connection with any underwritten Public
Offering, each Holder will enter into any lock-up, holdback or similar agreements requested by the
underwriter(s) managing such offering, in each case with such modifications and exceptions as may be
approved by the Sponsor Investors.  Without limiting the generality of the foregoing, each Holder hereby
agrees that in connection with the initial Public Offering and in connection with any Demand
Registration, Shelf Offering or Piggyback Registration that is an underwritten Public Offering, not to (i)
offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144), directly
or indirectly, any equity securities of the Company (including equity securities of the Company that may
be deemed to be beneficially owned by such Holder in accordance with the rules and regulations of the
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SEC) (collectively, “Securities”), or any securities, options or rights convertible into or exchangeable or
exercisable for Securities (collectively, “Other Securities”), (ii) enter into a transaction which would have
the same effect as described in clause (i) above, (iii) enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences or ownership of any Securities or Other
Securities, whether such transaction is to be settled by delivery of such Securities or Other Securities, in
cash or otherwise (each of (i), (ii) and (iii) above, a “Sale Transaction”), or (iv) publicly disclose the
intention to enter into any Sale Transaction, commencing on the earlier of (A) the date on which the
Company gives notice to the Holders that a preliminary prospectus for such underwritten Public Offering
has been circulated to potential investors or (B) the “pricing” of such offering, and continuing to the date
that is (x) 180 days following the date of the final prospectus for such underwritten Public Offering in the
case of the initial Public Offering or (y) 90 days following the date of the final prospectus in the case of
any other such underwritten Public Offering (each such period, or such shorter period as agreed to by the
managing underwriters, a “Holdback Period”), in each case with such modifications and exceptions as
may be approved by the Sponsor Investors.  The Company may impose stop-transfer instructions with
respect to any Securities or Other Securities subject to the restrictions set forth in this Section 3(a) until
the end of such Holdback Period.
(b)Company Holdback Agreement.  The Company (i) will not file any registration
statement for a Public Offering or cause any such registration statement to become effective, or effect any
public sale or distribution of its Securities or Other Securities during any Holdback Period (other than as
part of such underwritten Public Offering, or a registration on Form S-4 or Form S-8 or any successor or
similar form which is (x) then in effect or (y) shall become effective upon the conversion, exchange or
exercise of any then outstanding Other Securities) and (ii) will cause each holder of Securities and Other
Securities (including each of its directors and executive officers) to agree not to effect any Sale
Transaction during any Holdback Period, except as part of such underwritten registration (if otherwise
permitted), unless approved in writing by the Sponsor Investors and the underwriters managing the Public
Offering and to enter into any lock-up, holdback or similar agreements requested by the underwriter(s)
managing such offering, in each case with such modifications and exceptions as may be approved by the
Sponsor Investors.
Section 4Registration Procedures.
(a)Company Obligations. Whenever the Holders have requested that any
Registrable Securities be registered pursuant to this Agreement or have initiated a Shelf Offering, the
Company will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i)prepare and file with (or submit confidentially to) the SEC a registration
statement, and all amendments and supplements thereto and related prospectuses, with respect to
such Registrable Securities and use its best efforts to cause such registration statement to become
effective, all in accordance with the Securities Act and all applicable rules and regulations
promulgated thereunder; provided, that before filing or confidentially submitting a registration
statement or prospectus or any amendments or supplements thereto, the Company will furnish to
the counsel selected by the Sponsor Investors covered by such registration statement copies of all
such documents proposed to be filed or submitted, which documents will be subject to the review
and comment of such counsel;
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(ii)notify each Holder of (A) the issuance by the SEC of any stop order
suspending the effectiveness of any registration statement or the initiation of any proceedings for
that purpose, (B) the receipt by the Company or its counsel of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (C) the effectiveness of each
registration statement filed hereunder;
(iii)prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period ending when all of the securities covered
by such registration statement have been disposed of in accordance with the intended methods of
distribution by the sellers thereof set forth in such registration statement (but not in any event
before the expiration of any longer period required under the Securities Act or, if such registration
statement relates to an underwritten Public Offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in connection with
sale of Registrable Securities by an underwriter or dealer) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iv)furnish, without charge, to each seller of Registrable Securities
thereunder and each underwriter, if any, such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) (in each case including all exhibits and documents
incorporated by reference therein), each amendment and supplement thereto, each Free Writing
Prospectus and such other documents as such seller or underwriter, if any, may reasonably
request in order to facilitate the disposition of the Registrable Securities owned by such seller (the
Company hereby consenting to the use in accordance with all applicable laws of each such
registration statement, each such amendment and supplement thereto, and each such prospectus
(or preliminary prospectus or supplement thereto) or Free Writing Prospectus by each such seller
of Registrable Securities and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such registration statement or prospectus);
(v)use its best efforts to register or qualify such Registrable Securities under
such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, that the Company will not be required to (A) qualify generally to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (B) consent to general service of process in any such jurisdiction or (C) subject
itself to taxation in any such jurisdiction;
(vi)notify in writing each seller of such Registrable Securities (A) promptly
after it receives notice thereof, of the date and time when such registration statement and each
post-effective amendment thereto has become effective or a prospectus or supplement to any
prospectus relating to a registration statement has been filed and when any registration or
qualification has become effective under a state securities or blue sky law or any exemption
thereunder has been obtained, (B) promptly after receipt thereof, of any request by the SEC for
the amendment or supplementing of such registration statement or prospectus or for additional
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information, (C) at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event or of any information or circumstances as a
result of which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements therein not
misleading, and, subject to Section 1(f), if required by applicable law or to the extent requested
by the Sponsor Investors, the Company will use its best efforts to promptly prepare and file a
supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not misleading and (D) if at
any time the representations and warranties of the Company in any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering shall cease to be true
and correct;
(vii)(A) use best efforts to cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are then listed and, if
not so listed, to be listed on a securities exchange and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with respect to such
Registrable Securities with FINRA, and (B) comply (and continue to comply) with the
requirements of any self-regulatory organization applicable to the Company, including without
limitation all corporate governance requirements;
(viii)use best efforts to provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration statement;
(ix)enter into and perform such customary agreements (including, as
applicable, underwriting agreements in customary form) and take all such other actions as the
Sponsor Investors or the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation, making available the
executive officers of the Company and participating in “road shows,” investor presentations,
marketing events and other selling efforts and effecting a stock or unit split or combination,
recapitalization or reorganization);
(x)make available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition or sale pursuant to such registration statement and
any attorney, accountant or other agent retained by any such seller or underwriter, all financial
and other records, pertinent corporate and business documents and properties of the Company as
will be necessary to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors, employees, agents, representatives and independent accountants to
be available for due diligence discussions and supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such registration
statement and the disposition of such Registrable Securities pursuant thereto;
(xi)take all actions to ensure that any Free Writing Prospectus utilized in
connection with any Demand Registration or Piggyback Registration or Shelf Offering hereunder
complies in all material respects with the Securities Act, is filed in accordance with the Securities
Act to the extent required thereby, is retained in accordance with the Securities Act to the extent
required thereby and, when taken together with the related prospectus, prospectus supplement and
related documents, will not contain any untrue statement of a material fact or omit to state a
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material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(xii)otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12) months beginning
with the first day of the Company’s first full calendar quarter after the effective date of the
registration statement, which earnings statement will satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(xiii)permit any Holder which, in its sole and exclusive judgment, might be
deemed to be an underwriter or a controlling person of the Company, to participate in the
preparation of such registration or comparable statement and to allow such Holder to provide
language for insertion therein, in form and substance satisfactory to the Company, which in the
reasonable judgment of such Holder and its counsel should be included;
(xiv)use best efforts to (A) make Short-Form Registrations available for the
sale of Registrable Securities and (B) prevent the issuance of any stop order suspending the
effectiveness of a registration statement, or the issuance of any order suspending or preventing
the use of any related prospectus or suspending the qualification of any Common Equity included
in such registration statement for sale in any jurisdiction, and in the event any such order is
issued, use best efforts to obtain promptly the withdrawal of such order;
(xv)use its reasonable best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers thereof to
consummate the disposition of such Registrable Securities;
(xvi)cooperate with the Holders covered by the registration statement and the
managing underwriter or agent, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities to be sold under the
registration statement, or the removal of any restrictive legends associated with any account at
which such securities are held, and enable such securities to be in such denominations and
registered in such names as the managing underwriter, or agent, if any, or such Holders may
request;
(xvii)if requested by any managing underwriter, include in any prospectus or
prospectus supplement updated financial or business information for the Company’s most recent
period or current quarterly period (including estimated results or ranges of results) if required for
purposes of marketing the offering in the view of the managing underwriter;
(xviii)take no direct or indirect action prohibited by Regulation M under the
Exchange Act; provided, however, that to the extent that any prohibition is applicable to the
Company, the Company will take such action as is necessary to make any such prohibition
inapplicable;
(xix)(A) cooperate with each Holder covered by the registration statement and
each underwriter or agent participating in the disposition of such Registrable Securities and their
respective counsel in connection with the preparation and filing of applications, notices,
registrations and responses to requests for additional information with FINRA, the New York
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Stock Exchange, Nasdaq or any other national securities exchange on which the shares of
Common Equity are or are to be listed, and (B) to the extent required by the rules and regulations
of FINRA, retain a Qualified Independent Underwriter acceptable to the managing underwriter;
(xx)in the case of any underwritten offering, use its best efforts to obtain, and
deliver to the underwriter(s), in the manner and to the extent provided for in the applicable
underwriting agreement, one or more cold comfort letters from the Company’s independent
public accountants in customary form and covering such matters of the type customarily covered
by cold comfort letters;
(xxi)use its best efforts to provide (A) a legal opinion of the Company’s
outside counsel, dated the effective date of such registration statement addressed to the Company,
(B) on the date that such Registrable Securities are delivered to the underwriters for sale in
connection with a Demand Registration or Shelf Offering, if such securities are being sold
through underwriters, or, if such securities are not being sold through underwriters, on the closing
date of the applicable sale, (1) one or more legal opinions of the Company’s outside counsel,
dated such date, in form and substance as customarily given to underwriters in an underwritten
public offering or, in the case of a non-underwritten offering, to the broker, placement agent or
other agent of the Holders assisting in the sale of the Registrable Securities, (2) one or more
“negative assurances letters” of the Company’s outside counsel, dated such date, in form and
substance as is customarily given to underwriters in an underwritten public offering or, in the case
of a non-underwritten offering, to the broker, placement agent or other agent of the Holders
assisting in the sale of the Registrable Securities, in each case, addressed to the underwriters, if
any, or, if requested, in the case of a non-underwritten offering, to the broker, placement agent or
other agent of the Holders assisting in the sale of the Registrable Securities and (3) customary
certificates executed by authorized officers of the Company as may be requested by any Holder
or any underwriter of such Registrable Securities;
(xxii)if the Company files an Automatic Shelf Registration Statement covering
any Registrable Securities, use its best efforts to remain a WKSI (and not become an ineligible
issuer (as defined in Rule 405 under the Securities Act)) during the period during which such
Automatic Shelf Registration Statement is required to remain effective;
(xxiii)if the Company does not pay the filing fee covering the Registrable
Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such
time or times as the Registrable Securities are to be sold;
(xxiv)if the Automatic Shelf Registration Statement has been outstanding for at
least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration
Statement covering the Registrable Securities, and, if at any time when the Company is required
to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its best efforts
to refile the Shelf Registration Statement on Form S-3 and, if such form is not available, Form
S-1 and keep such registration statement effective during the period during which such
registration statement is required to be kept effective; and
(xxv)if requested by any Participating Sponsor Investor, cooperate with such
Participating Sponsor Investor and with the managing underwriter or agent, if any, on reasonable
notice to facilitate any Charitable Gifting Event and to prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus used in
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connection therewith as may be necessary to permit any such recipient Charitable Organization to
sell in the underwritten offering if it so elects.
(b)Officer Obligations. Each Holder that is an officer of the Company agrees that if
and for so long as he or she is employed by the Company or any Subsidiary thereof, he or she will
participate fully in the sale process in a manner customary for persons in like positions and consistent
with his or her other duties with the Company, including the preparation of the registration statement and
the preparation and presentation of any road shows.
(c)Automatic Shelf Registration Statements. If the Company files any Automatic
Shelf Registration Statement for the benefit of the holders of any of its securities other than the Holders,
and the Sponsor Investors do not request that their Registrable Securities be included in such Shelf
Registration Statement, the Company agrees that, at the request of the Sponsor Investors, it will include in
such Automatic Shelf Registration Statement such disclosures as may be required by Rule 430B in order
to ensure that the Sponsor Investors may be added to such Shelf Registration Statement at a later time
through the filing of a prospectus supplement rather than a post-effective amendment.  If the Company
has filed any Automatic Shelf Registration Statement for the benefit of the holders of any of its securities
other than the Holders, the Company shall, at the request of the Sponsor Investors, file any post-effective
amendments necessary to include therein all disclosure and language necessary to ensure that the holders
of Registrable Securities may be added to such Shelf Registration Statement.
(d)Additional Information. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may from time to time
reasonably request in writing, as a condition to such seller’s participation in such registration.
(e)In-Kind Distributions. If any Sponsor Investor (and/or any of their Affiliates)
seeks to effectuate an in-kind distribution of all or part of their Registrable Securities to their respective
direct or indirect equityholders, the Company will, subject to any applicable lock-ups, reasonably
cooperate with and assist such stockholder, such equityholders and the Company’s transfer agent to
facilitate such in-kind distribution in the manner reasonably requested by such stockholder (including the
delivery of instruction letters by the Company or its counsel to the Company’s transfer agent, the delivery
of customary legal opinions by counsel to the Company and the delivery of Company Equity without
restrictive legends, to the extent no longer applicable).
(f)Suspended Distributions.  Each Person participating in a registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any event of the kind
described in Section 4(a)(vi), such Person will immediately discontinue the disposition of its Registrable
Securities pursuant to the registration statement until such Person’s receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(a)(vi), subject to the Company’s
compliance with its obligations under Section 4(a)(vi).
(g)Registrable Securities Transactions.  If requested by any Holder in connection
with any transaction involving any Registrable Securities (including any sale or other transfer of such
securities without registration under the Securities Act, any margin loan with respect to such securities
and any pledge of such securities), the Company agrees to provide such Holder with customary and
reasonable assistance to facilitate such transaction, including, without limitation, (i) such action as such
Holder may reasonably request from time to time to enable such Holder to sell Registrable Securities
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without registration under the Securities Act and (ii) entering into an “issuer’s agreement” in connection
with any margin loan with respect to such securities in customary form.
(h)Indemnity in Lieu of Medallion Guarantee. The Company shall, at the request of
any Sponsor Investor, enter into an indemnification agreement in customary form, in favor of the
Company’s transfer agent (or any successor transfer agent) in lieu of any requirement of any Sponsor
Investor or any of their respective Affiliates to provide a medallion guarantee in connection with any sale,
transfer or other disposition of any Registrable Securities by such Sponsor Investor or Affiliates.
(i)Other.  To the extent that any of the Participating Sponsor Investors is or may be
deemed to be an “underwriter” of Registrable Securities pursuant to any SEC comments or policies, the
Company agrees that (i) the indemnification and contribution provisions contained in Section 6 shall be
applicable to the benefit of such Participating Sponsor Investor in their role as an underwriter or deemed
underwriter in addition to their capacity as a Holder and (ii) such Participating Sponsor Investor shall be
entitled to conduct the due diligence which they would normally conduct in connection with an offering
of securities registered under the Securities Act, including without limitation receipt of customary
opinions and comfort letters addressed to such Participating Sponsor Investor.
Section 5Expenses.
Except as expressly provided herein, all out-of-pocket expenses incurred by the Company
or any Sponsor Investor in connection with the performance of or compliance with this Agreement and/or
in connection with any sale, transfers, distributions or other disposition of Registrable Securities by any
Sponsor Investor, including pursuant to a Demand Registration, Piggyback Registration or Shelf Offering,
whether or not the same shall become effective, shall be paid by the Company, including, without
limitation: (i) all registration and filing fees, and any other fees and expenses associated with filings
required to be made with the SEC or FINRA, (ii) all fees and expenses in connection with compliance
with any securities or “blue sky” laws, (iii) all expenses associated with filings required to be made with
the SEC by any Sponsor Investors reporting a change in beneficial ownership, (iv) all printing,
duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses
of printing certificates for the Registrable Securities in a form eligible for deposit with The Depository
Trust Company or other depositary and of printing prospectuses and Company Free Writing
Prospectuses), (v) all fees and disbursements of counsel for the Company and of all independent certified
public accountants of the Company (including the expenses of any special audit and cold comfort letters
required by or incident to such performance), (vi) Securities Act liability insurance or similar insurance if
the Company so desires or the underwriters so require in accordance with then-customary underwriting
practice, (vii) all fees and expenses incurred in connection with the listing of the Registrable Securities on
any securities exchange on which similar securities of the Company are then listed (or on which exchange
the Registrable Securities are proposed to be listed in the case of the initial Public Offering), (viii) all
applicable rating agency fees with respect to the Registrable Securities, (ix) all fees and disbursements of
legal counsel for the Company, (x) all reasonable fees and disbursements of one legal counsel for selling
Holders selected by the Sponsor Investors (which may be the same counsel as selected for the Company)
together with any necessary local counsel as may be required by the Sponsor Investors, (xi) any fees and
disbursements of underwriters customarily paid by issuers or sellers of securities, (xii) all fees and
expenses of any special experts or other Persons retained by the Company or the Sponsor Investors in
connection with any Registration, (xiii) all of the Company’s internal expenses (including all salaries and
expenses of its officers and employees performing legal or accounting duties) and (xiv) all expenses
related to the “road-show” for any underwritten offering, including all travel, meals and lodging.  All such
expenses are referred to herein as “Expenses.”  The Company shall not be required to pay, and each
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Person that sells securities pursuant to a Demand Registration, Shelf Offering or Piggyback Registration
hereunder will bear and pay, all underwriting discounts and commissions applicable to the Registrable
Securities sold for such Person’s account and all transfer taxes (if any) attributable to the sale of
Registrable Securities.
Section 6Indemnification and Contribution.
(a)By the Company.  The Company will indemnify and hold harmless, to the fullest
extent permitted by law and without limitation as to time, each Holder, such Holder’s officers, directors
employees, agents, fiduciaries, stockholders, managers, partners, members, Affiliates, direct and indirect
equityholders, consultants and representatives, and any successors and assigns thereof, and each Person
who controls such holder (within the meaning of the Securities Act) (the “Indemnified Parties”) against
all losses, claims, actions, damages, liabilities and expenses (including with respect to actions or
proceedings, whether commenced or threatened, and including reasonable attorney fees and expenses)
(collectively, “Losses”) caused by, resulting from, arising out of, based upon or related to any of the
following (each, a “Violation”) by the Company:  (i) any untrue or alleged untrue statement of material
fact contained in (A) any registration statement, prospectus, preliminary prospectus or Free Writing
Prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or
communication (in this Section 6, collectively called an “application”) executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or
securities laws thereof, (ii) any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any Violation or alleged
Violation by the Company of the Securities Act or any other similar federal or state securities laws or any
rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification or compliance.  In
addition, the Company will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any such Losses. 
Notwithstanding the foregoing, the Company will not be liable in any such case to the extent that any
such Losses result from, arise out of, are based upon, or relate to an untrue statement, or omission, made
in such registration statement, any such prospectus, preliminary prospectus or Free Writing Prospectus or
any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished in writing to the Company by such Indemnified Party
expressly for use therein or by such Indemnified Party’s failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the Company has furnished such
Indemnified Party with a sufficient number of copies of the same.  In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and directors, and each Person
who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of the Indemnified Parties or as otherwise agreed to in the
underwriting agreement executed in connection with such underwritten offering. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party and shall survive the transfer of such securities by such seller.
(b)By Holders.  In connection with any registration statement in which a Holder is
participating, each such Holder will furnish to the Company in writing such information and affidavits as
the Company reasonably requests for use in connection with any such registration statement or prospectus
and, to the extent permitted by law, will indemnify the Company, its officers, directors, employees, agents
and representatives, and each Person who controls the Company (within the meaning of the Securities
Act) against any Losses resulting from (as determined by a final and appealable judgment, order or decree
-14-
of a court of competent jurisdiction) any untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any
omission of a material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such Holder expressly for use therein; provided that the obligation
to indemnify will be individual, not joint and several, for each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
(c)Claim Procedure.  Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice will impair any Person’s right to
indemnification hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii)
unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party.  If such defense is
assumed, the indemnifying party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or
delayed).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any other of such indemnified
parties with respect to such claim. In such instance, the conflicted indemnified parties will have a right to
retain one separate counsel, chosen by the majority of the conflicted indemnified parties involved in the
indemnification and approved by the Sponsor Investors, at the expense of the indemnifying party.
(d)Contribution.  If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to, or is insufficient to hold harmless, an indemnified
party or is otherwise unenforceable with respect to any Losses referred to herein, then such indemnifying
party will contribute to the amounts paid or payable by such indemnified party as a result of such Losses,
(i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) of this Section 6(d) is not permitted by applicable law, then in such proportion as is
appropriate to reflect not only such relative fault but also the relative benefit of the Company on the one
hand and of the sellers of Registrable Securities and any other sellers participating in the registration
statement on the other in connection with the statement or omissions which resulted in such Losses, as
well as any other relevant equitable considerations; provided that the maximum amount of liability in
respect of such contribution will be limited, in the case of each seller of Registrable Securities, to an
amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities
effected pursuant to such registration.  The relative fault of the indemnifying party and of the indemnified
party will be determined by reference to, among other things, whether the untrue (or, as applicable
alleged) untrue statement of a material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.  The
parties hereto agree that it would not be just or equitable if the contribution pursuant to this Section 6(d)
were to be determined by pro rata allocation or by any other method of allocation that does not take into
account such equitable considerations.  The amount paid or payable by an indemnified party as a result of
the Losses referred to herein will be deemed to include any legal or other expenses reasonably incurred by
-15-
such indemnified party in connection with investigating or defending against any action or claim which is
the subject hereof.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any Person who is not guilty of such fraudulent
misrepresentation.
(e)Release.  No indemnifying party will, except with the consent of the indemnified
party, consent to the entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
(f)Non-exclusive Remedy; Survival.  The indemnification and contribution
provided for under this Agreement will be in addition to any other rights to indemnification or
contribution that any indemnified party may have pursuant to law or contract (and the Company and its
Subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this
Section 6 applies) and will remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person of such indemnified party
and will survive the transfer of Registrable Securities and the termination or expiration of this Agreement.
Section 7Cooperation with Underwritten Offerings.  No Person may participate in
any underwritten registration hereunder unless such Person (i) agrees to sell such Person’s securities on
the basis provided in any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-
allotment or “green shoe” option requested by the underwriters; provided that no Holder will be required
to sell more than the number of Registrable Securities such Holder has requested to include in such
registration) and (ii) completes, executes and delivers all questionnaires, powers of attorney, stock
powers, custody agreements, indemnities, underwriting agreements and other documents and agreements
required under the terms of such underwriting arrangements or as may be reasonably requested by the
Company and the lead managing underwriter(s).  To the extent that any such agreement is entered into
pursuant to, and consistent with, Section 3, Section 4 and/or this Section 7, the respective rights and
obligations created under such agreement will supersede the respective rights and obligations of the
Holders, the Company and the underwriters created thereby with respect to such registration.
Section 8Joinder.  The Company may from time to time (with the prior written
consent of the Sponsor Investors) permit any Person who acquires Common Equity (or rights to acquire
Common Equity) to become a party to this Agreement and to be entitled to and be bound by all of the
rights and obligations as a Holder by obtaining an executed joinder to this Agreement from such Person in
the form of Exhibit B attached hereto (a “Joinder”).  Upon the execution and delivery of a Joinder by such
Person, the Common Equity held by such Person shall become the category of Registrable Securities (i.e.,
Sponsor Investor Registrable Securities, Other Investor Registrable Securities or Executive Registrable
Securities), and such Person shall be deemed the category of Holder (i.e., Sponsor Investor, Other
Investor or Executive), in each case as set forth on the signature page to such Joinder.
Section 9General Provisions.
(a)Amendments and Waivers.  Except as otherwise provided herein, the provisions
of this Agreement may be amended, modified or waived only with the prior written consent of the
Company and the Sponsor Investors who are then Holders; provided that no such amendment,
modification or waiver that would treat a specific Holder or group of Holders of Registrable Securities
(i.e., Sponsor Investors, Other Investors or Executives) in a manner materially and adversely different
-16-
than any other Holder or group of Holders will be effective against such Holder or group of Holders
without the consent of the holders of a majority of the Registrable Securities that are held by the group of
Holders that is materially and adversely affected thereby.  The failure or delay of any Person to enforce
any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such Person thereafter to enforce each and every provision of this Agreement in
accordance with its terms.  A waiver or consent to or of any breach or default by any Person in the
performance by that Person of his, her or its obligations under this Agreement will not be deemed to be a
consent or waiver to or of any other breach or default in the performance by that Person of the same or
any other obligations of that Person under this Agreement.
(b)Remedies.  The parties to this Agreement will be entitled to enforce their rights
under this Agreement specifically (without posting a bond or other security), to recover damages caused
by reason of any breach of any provision of this Agreement and to exercise all other rights existing in
their favor.  The parties hereto agree and acknowledge that a breach of this Agreement would cause
irreparable harm and money damages would not be an adequate remedy for any such breach and that, in
addition to any other rights and remedies existing hereunder, any party will be entitled to specific
performance and/or other injunctive relief from any court of law or equity of competent jurisdiction
(without posting any bond or other security) in order to enforce or prevent violation of the provisions of
this Agreement.
(c)Severability.  Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under any applicable
law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability will not
affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction
or in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been contained
herein.
(d)Entire Agreement.  Except as otherwise provided herein, this Agreement contains
the complete agreement and understanding among the parties hereto with respect to the subject matter
hereof and supersedes and preempts any prior understandings, agreements or representations by or among
the parties hereto, written or oral, which may have related to the subject matter hereof in any way.
(e)Successors and Assigns.  Except as otherwise provided herein, this Agreement
will bind and inure to the benefit and be enforceable by the Company and its successors and permitted
assigns. Each of the Sponsor Investors may assign its rights hereunder to its Affiliates; provided, that such
purchaser or transferee shall, as a condition to the effectiveness of such assignment, be required to cause
such prospective transferee to execute and deliver to the Company a Joinder. Except as otherwise
provided herein, the rights under this Agreement are personal to the Holders and are not assignable
without the prior written consent of each of the Company and the Sponsor Investors. 
(f)Notices.  Any notice, demand or other communication to be given under or by
reason of the provisions of this Agreement will be in writing and will be deemed to have been given
(i) when delivered personally to the recipient, (ii) when sent by confirmed electronic mail if sent during
normal business hours of the recipient; but if not, then on the next Business Day, (iii) one Business Day
after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three
Business Days after it is mailed to the recipient by first class mail, return receipt requested.  Such notices,
demands and other communications will be sent to the Company at the address specified on the signature
-17-
page hereto or any Joinder and to any holder, or at such address or to the attention of such other Person as
the recipient party has specified by prior written notice to the sending party.  Any party may change such
party’s address for receipt of notice by giving prior written notice of the change to the sending party as
provided herein.  The Company’s address is:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attn:     Michael Rubiera
Email:   ****
With a copy to:
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, Illinois 60654
Attn:     Robert M. Hayward, P.C.
             Robert E. Goedert, P.C.
Email:  ****
             ****
or to such other address or to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
(g)Business Days.  If any time period for giving notice or taking action hereunder
expires on a day that is not a Business Day, the time period will automatically be extended to the Business
Day immediately following such Saturday, Sunday or legal holiday.
(h)Governing Law. The corporate law of the State of Delaware will govern all
issues and questions concerning the relative rights of the Company and its equityholders. All issues and
questions concerning the construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto will be governed by, and construed in accordance with, the laws of the State
of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(i)MUTUAL WAIVER OF JURY TRIAL.  AS A SPECIFICALLY BARGAINED
FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS
AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH
PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR
PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE
MATTERS CONTEMPLATED HEREBY.
(j)CONSENT TO JURISDICTION AND SERVICE OF PROCESS.  EACH OF
THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY
RELATED AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. 
EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S
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RESPECTIVE ADDRESS SET FORTH ABOVE WILL BE EFFECTIVE SERVICE OF PROCESS FOR
ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS
SUBMITTED TO JURISDICTION IN THIS PARAGRAPH.  EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND
HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(k)No Recourse.  Notwithstanding anything to the contrary in this Agreement, the
Company and each Holder agrees and acknowledges that no recourse under this Agreement or any
documents or instruments delivered in connection with this Agreement, will be had against any current or
future director, officer, employee, general or limited partner or member of any Holder or any Affiliate or
assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding,
or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged
that no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any current
or future officer, agent or employee of any Holder or any current or future member of any Holder or any
current or future director, officer, employee, partner or member of any Holder or of any Affiliate or
assignee thereof, as such for any obligation of any Holder under this Agreement or any documents or
instruments delivered in connection with this Agreement for any claim based on, in respect of or by
reason of such obligations or their creation.
(l)Descriptive Headings; Interpretation.  The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this Agreement.  The use of
the word “including” in this Agreement will be by way of example rather than by limitation.
(m)No Strict Construction.  The language used in this Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party.
(n)Counterparts.  This Agreement may be executed in multiple counterparts, any
one of which need not contain the signature of more than one party, but all such counterparts taken
together will constitute one and the same agreement.
(o)Electronic Delivery.  This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by means
of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile
machine or electronic mail will be treated in all manner and respects as an original agreement or
instrument and will be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person.  At the request of any party hereto or to any such agreement or
instrument, each other party hereto or thereto will re-execute original forms thereof and deliver them to all
other parties.  No party hereto or to any such agreement or instrument will raise the use of a facsimile
machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense
to the formation or enforceability of a contract and each such party forever waives any such defense.
-19-
(p)Further Assurances.  In connection with this Agreement and the transactions
contemplated hereby, each Holder agrees to execute and deliver any additional documents and
instruments and perform any additional acts that may be necessary or appropriate to effectuate and
perform the provisions of this Agreement and the transactions contemplated hereby.
(q) Dividends, Recapitalizations, etc.  If at any time or from time to time there is any
change in the capital structure of the Company by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment will be made in the provisions hereof so that the rights and privileges
granted hereby will continue.
(r)No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to be, or shall be, for the benefit of any Person not a party hereto, and no such other Person shall have any
right or cause of action hereunder, except as otherwise expressly provided herein.
(s)Current Public Information. At all times after the Company has filed a
registration statement with the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company will file all reports required to be filed by it under the Securities Act and the
Exchange Act and will take such further action as the Sponsor Investors may reasonably request, all to the
extent required to enable such Holders to sell Registrable Securities pursuant to Rule 144.
*     *     *     *     *
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Its:
Chief Executive Officer
SPONSOR INVESTORS:
ACCELEVATION PUBCO HOLDINGS LP
By:
/s/ Matthew Boyd
Name:
Matthew Boyd
Its:
President
ACCELEVATION INVESTMENT HOLDINGS
LLC
By:
/s/ Matthew Boyd
Name:
Matthew Boyd
Its:
President
A-1
EXHIBIT A
DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth below.
“Affiliate” of any Person means any other Person controlled by, controlling or under
common control with such Person and, in the case of an individual, also includes any member of such
individual’s Family Group; provided, that the Company and its Subsidiaries will not be deemed to be
Affiliates of any holder of Registrable Securities.  As used in this definition, “control” (including, with its
correlative meanings, “controlling,” “controlled by” and “under common control with”) will mean
possession, directly or indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities, by contract or otherwise).
“Agreement” has the meaning set forth in the preamble.
“Automatic Shelf Registration Statement” has the meaning set forth in Section 1(a).
“Business Day” means a day that is not a Saturday or Sunday or a day on which banks in
New York City are authorized or requested by law to close.
“Charitable Gifting Event” means any transfer by a Sponsor Investor, or any subsequent
transfer by such Holder’s members, partners or other employees, in connection with a bona fide gift to
any Charitable Organization on the date of, but prior to, the execution of the underwriting agreement
entered into in connection with any underwritten offering.
“Charitable Organization” means a charitable organization as described by Section
501(c)(3) of the Internal Revenue Code of 1986, as in effect from time to time.
“Common Equity” means (i) the Company’s Class A common stock, par value $0.0001
per share and (ii) shares of the Company’s Class A common stock issuable upon conversion or in
exchange for LLC Units of Accelevation Holdings LLC.  In the event of a Corporate Conversion,
Common Equity will thereafter mean the common stock issued upon conversion or in exchange for the
Company’s Common Equity.
“Company” has the meaning set forth in the preamble and shall include its successor(s).
“Demand Registration” has the meaning set forth in Section 1(a).
“End of Suspension Notice” has the meaning set forth in Section 1(f)(ii).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor federal law then in force, together with all rules and regulations promulgated
thereunder.
“Excluded Registration” means any registration (i) pursuant to a Demand Registration
(which is addressed in Section 1(a)), or (ii) in connection with registrations on Form S-4 or S-8
promulgated by the SEC or any successor or similar forms.
“Executives” has the meaning set forth in the recitals.
A-2
“Executive Registrable Securities” means any Common Equity held by the management
employees of the Company who are listed as “Executives” on the signature page hereto or to a Joinder.
“Expenses” has the meaning set forth in Section 5.
“Family Group” means with respect to any individual, such individual’s current or former
spouse, their respective parents, descendants of such parents (whether natural or adopted) and the spouses
of such descendants, any trust, limited partnership, corporation or limited liability company established
solely for the benefit of such individual or such individual’s current or former spouse, their respective
parents, descendants of such parents (whether natural or adopted) or the spouses of such descendants.
“FINRA” means the Financial Industry Regulatory Authority.
“Free Writing Prospectus” means a free writing prospectus, as defined in Rule 405.
“Holdback Period” has the meaning set forth in Section 3(a).
“Holder” means a holder of Registrable Securities who is a party to this Agreement
(including by way of Joinder).
“Indemnified Parties” has the meaning set forth in Section 6(a).
“Joinder” has the meaning set forth in Section 8.
“Long-Form Registrations” has the meaning set forth in Section 1(a).
“Losses” has the meaning set forth in Section 6(a).
“Other Investors” has the meaning set forth in the preamble.
“Other Investor Registrable Securities” means (i) any Common Equity held (directly or
indirectly) by any Other Investors or any of their Affiliates, and (ii) any equity securities of the Company
or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of
dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or
other reorganization.
“Participating Sponsor Investors” means any Sponsor Investor(s) participating in the
request for a Demand Registration, Shelf Offering, Piggyback Registration or Underwritten Block Trade.
“Person” means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Piggyback Registration” has the meaning set forth in Section 2(a).
“Public Offering” means any sale or distribution by the Company, one of its Subsidiaries
and/or Holders to the public of Common Equity or other securities convertible into or exchangeable for
Common Equity pursuant to an offering registered under the Securities Act.
A-3
“Qualified Independent Underwriter” has the meaning set forth by FINRA in Section
5121(f)(12), or any successor provision thereto.
“Registrable Securities” means Sponsor Investor Registrable Securities, Other Investor
Registrable Securities and Executive Registrable Securities.  As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they have been (a) sold or distributed pursuant
to a Public Offering, (b) sold in compliance with Rule 144 following the consummation of the initial
Public Offering, (c) distributed to the direct or indirect partners or members of a Sponsor Investor or (d)
repurchased by the Company or a Subsidiary of the Company.  For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities, and the Registrable Securities will be deemed to
be in existence, whenever such Person has the right to acquire, directly or indirectly, such Registrable
Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right), whether or not such
acquisition has actually been effected, and such Person will be entitled to exercise the rights of a holder of
Registrable Securities hereunder (it being understood that a holder of Registrable Securities may only
request that Registrable Securities in the form of Common Equity be registered pursuant to this
Agreement).  Notwithstanding the foregoing, following the consummation of an initial Public Offering,
any Registrable Securities held by any Person (other than any Sponsor Investor or its Affiliates) that may
be sold under Rule 144(b)(1)(i) without limitation under any of the other requirements of Rule 144 will be
deemed not to be Registrable Securities.
“Rule 144”, “Rule 158”, “Rule 405”, “Rule 415”, “Rule 430B” and “Rule 462” mean, in
each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the
same will be amended from time to time, or any successor rule then in force.
“Sale of the Company” means any transaction or series of transactions pursuant to which
any Person(s) or a group of related Persons (other than any Sponsor Investor and/or its Affiliates) in the
aggregate acquires: (i)  Common Equity of the Company entitled to vote (other than voting rights
accruing only in the event of a default, breach, event of noncompliance or other contingency) to elect
directors with a majority of the voting power of the Company’s board of directors (whether by merger,
consolidation, reorganization, combination, sale or transfer of the Company’s Common Equity) or (ii) all
or substantially all of the Company’s and its Subsidiaries’ assets determined on a consolidated basis;
provided that a Public Offering will not constitute a Sale of the Company.
“Sale Transaction” has the meaning set forth in Section 3(a).
“SEC” means the United States Securities and Exchange Commission.
“Securities” has the meaning set forth in Section 3(a).
“Securities Act” means the Securities Act of 1933, as amended from time to time, or any
successor federal law then in force, together with all rules and regulations promulgated thereunder.
“Shelf Offering” has the meaning set forth in Section 1(d)(i).
“Shelf Offering Notice” has the meaning set forth in Section 1(d)(i).
“Shelf Registration” has the meaning set forth in Section 1(a).
“Shelf Registrable Securities” has the meaning set forth in Section 1(d)(i).
A-4
“Shelf Registration Statement” has the meaning set forth in Section 1(d).
“Short-Form Registrations” has the meaning set forth in Section 1(a).
“Sponsor Investors” has the meaning set forth in the recitals; provided that any decision
to be made under this Agreement by the Sponsor Investors shall be made by the holders of a majority of
all Sponsor Investor Registrable Securities
“Sponsor Investor Registrable Securities” means (i) any Common Equity held (directly or
indirectly) by any Sponsor Investor or any of its Affiliates, and (ii) any equity securities of the Company
or any Subsidiary issued or issuable with respect to the securities referred to in clause (i) above by way of
dividend, distribution, split or combination of securities, or any recapitalization, merger, consolidation or
other reorganization.
“Subsidiary” means, with respect to the Company, any corporation, limited liability
company, partnership, association or other business entity of which (i) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by the Company or one or more of the other Subsidiaries of the Company or a combination
thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by the Company or one or more Subsidiaries of the Company
or a combination thereof.  For purposes hereof, a Person or Persons will be deemed to have a majority
ownership interest in a limited liability company, partnership, association or other business entity if such
Person or Persons will be allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or will be or control the managing director or general partner of such
limited liability company, partnership, association or other business entity.
“Suspension Event” has the meaning set forth in Section 1(f)(ii).
“Suspension Notice” has the meaning set forth in Section 1(f)(ii).
“Suspension Period” has the meaning set forth in Section 1(f)(i).
“Violation” has the meaning set forth in Section 6(a).
“WKSI” means a “well-known seasoned issuer” as defined under Rule 405.
B-1
EXHIBIT B
The undersigned is executing and delivering this Joinder pursuant to the Registration
Rights Agreement dated as of September 29, 2026 (as amended, modified and waived from time
to time, the “Registration Rights Agreement”), among Accelevation Holdings Corp., a Delaware
corporation (the “Company”), and the other persons named as parties therein (including pursuant
to other Joinders). Capitalized terms used herein have the meaning set forth in the Registration
Rights Agreement.
By executing and delivering this Joinder to the Company, the undersigned hereby agrees
to become a party to, to be bound by, and to comply with the provisions of, the Registration
Rights Agreement as a Holder in the same manner as if the undersigned were an original
signatory to the Registration Rights Agreement, and the undersigned will be deemed for all
purposes to be a Holder, a [Sponsor Investor // Executive // Other Investor thereunder] and the
undersigned’s ________ shares of Common Equity will be deemed for all purposes to be a
[Sponsor Investor // Executive // Other Investor] Registrable Securities under the Registration
Rights Agreement.
Accordingly, the undersigned has executed and delivered this Joinder as of the ___ day of
___________, 20__.
Signature
Print Name
Address:
Accepted and Agreed as of
___________, 20__.
ACCELEVATION HOLDINGS CORP.
By:
Name:
Its:
EX-10.1 6 exhibit101-8xkxdna.htm EX-10.1 Exhibit 10.1 - 8-K - DNA
Exhibit 10.1
DIRECTOR NOMINATION AGREEMENT
THIS DIRECTOR NOMINATION AGREEMENT (this “Agreement”) is made and entered into
as of September 29, 2026, by and among (a) Accelevation Holdings Corp., a Delaware corporation (the
“Company”), (b) Accelevation Pubco Holdings LP, a Delaware limited partnership (“Pubco Holdings”),
(c) Accelevation Investment Holdings LLC, a Delaware limited liability company (“Investment
Holdings”), (d) Olympus Growth Fund VIII Parallel L.P., a Delaware limited partnership, Olympus
Growth Fund VIII LP, a Delaware limited partnership, and OGP VIII, LLC, a Delaware limited liability
company (collectively and, together with Pubco Holdings and Investment Holdings, “Olympus”) and (e)
Michael Rubiera (the “Founder Stockholder” and, together with Olympus, the “Nominating Parties”).
This Agreement shall become effective (the “Effective Date”) upon the closing of the Company’s
proposed initial public offering (the “IPO”) of shares of its Common Stock (as defined below).
WHEREAS, as of the date hereof, Olympus Beneficially Owns (as defined below) a majority of
the equity interests in the Company;
WHEREAS, Olympus is contemplating causing the Company to effect an IPO;
WHEREAS, Olympus currently has the authority to appoint all Directors (as defined below) of
the Company; and
WHEREAS, in consideration of Olympus agreeing to undertake the IPO, the Company has
agreed to permit Olympus and the Founder Stockholder to nominate Directors to the board of directors of
the Company (the “Board”) following the Effective Date on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the
parties to this Agreement agrees as follows:
1.Board Nomination Rights.
(a)From the Effective Date, Olympus shall have the right, but not the obligation, to
nominate to the Board a number of nominees equal to at least: (i) 100% of the Total Number of Directors
(as defined below) (excluding the Founder Nominee (as defined below)), so long as, at the applicable
Measurement Time, Olympus Beneficially Owns shares of Class A common stock, par value $0.0001 per
share, and Class B common stock, par value $0.0001 per share (collectively, the “Common Stock”),
representing at least 40% of the Original Amount of Olympus (as defined below); (ii) 40% of the Total
Number of Directors, in the event that, at the applicable Measurement Time, Olympus Beneficially Owns
shares of Common Stock representing at least 30% but less than 40% of the Original Amount of
Olympus; (iii) 30% of the Total Number of Directors, in the event that, at the applicable Measurement
Time, Olympus Beneficially Owns shares of Common Stock representing at least 20% but less than 30%
of the Original Amount of Olympus; (iv) 20% of the Total Number of Directors, in the event that, at the
applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock representing at
least 10% but less than 20% of the Original Amount of Olympus; and (v) one Director, in the event that,
at the applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock representing
at least 5% but less than 10% of the Original Amount of Olympus (such persons, the “Olympus
Nominees”). For purposes of calculating the number of Directors that Olympus is entitled to nominate
pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up
to the nearest whole number (e.g., 1.25 Directors shall equate to 2 Directors) and any such calculations
shall be made after taking into account any increase in the Total Number of Directors.
(b)From the Effective Date, the Founder Stockholder shall have the right, but not the
obligation, to nominate to the Board one director so long as the Founder Stockholder Beneficially Owns
or holds an indirect economic interest in at least 3% of the outstanding shares of Common Stock (such
person, the “Founder Nominee”). The Founder Nominee shall be deemed to be Michael Rubiera for as
long as he serves as Chief Executive Officer of the Company, and thereafter the Founder Nominee shall
be as designated by the Founder Stockholder in accordance with the terms of this Agreement.
Notwithstanding anything herein to the contrary, in the event that Mr. Rubiera is removed as the Chief
Executive Officer of the Company for Cause, Mr. Rubiera shall resign from the Board and the Founder
Stockholder shall immediately cease to have any right to nominate a director to the Board pursuant to this
Agreement.
(c)In the event that any Nominating Party has nominated fewer than the total number of
nominees that such Nominating Party shall be entitled to nominate pursuant to Section 1(a) or Section
1(b), as applicable, such Nominating Party shall have the right, at any time, to nominate such additional
nominees to which it is entitled, in which case, the Company shall take, and the Company hereby
covenants that the Directors shall take, all necessary corporate action to (i) enable such Nominating Party
to nominate and effect the election or appointment of such additional individuals, whether by increasing
the size of the Board or otherwise, and (ii) appoint such additional individuals nominated by such
Nominating Party to fill such newly created directorships or to fill any other existing vacancies in
accordance with Section 1(e).
(d)If the size of the Board is expanded, Olympus shall be entitled to nominate a number of
Olympus Nominees to fill the newly created directorships such that the total number of Olympus
Nominees serving on the Board following such expansion will be equal to that number of Olympus
Nominees that Olympus would be entitled to nominate in accordance with Section 1(a) if such expansion
occurred immediately prior to any meeting of the stockholders of the Company called with respect to the
election of members of the Board.  The Company shall take, and the Company hereby covenants that the
Directors shall take, all necessary corporate action to (i) enable Olympus to nominate and effect the
election or appointment of additional nominees in accordance with the preceding sentence and (ii) appoint
such additional nominees in accordance with Section 1(e).
(e)In the event that any Nominee shall cease to serve as a Director for any reason (other than
removal for Cause in the case of the Founder Nominee), the Nominating Party appointing such Nominee
shall be entitled to nominate such person’s successor in accordance with this Agreement (regardless of the
number of shares of Common Stock Beneficially Owned by such Nominating Party at the time of such
vacancy).  The Company shall take, and the Company hereby covenants that the Directors shall take, all
necessary corporate action to (i) enable the applicable Nominating Party to nominate and effect the
election or appointment of successor nominees in accordance with the preceding sentence and (ii) appoint
such successor nominees in accordance with Section 1(e).  It is understood that any such nominee shall
serve the remainder of the term of the Director whom such nominee replaces.
(f)In each case where the Company has covenanted that the Directors shall take action to
appoint a Nominee as a Director pursuant to any of Sections 1(a) through 1(e):
(i)The Directors shall appoint such Nominee unless the Board determines, in good faith,
that appointing such Nominee would cause the Directors to breach their fiduciary
duties to the Company or its stockholders, in which case the Company shall provide
the appointing Nominating Party with a notice explaining in reasonable detail the
basis for the Board’s determination, and such Nominating Party shall have the right
to nominate an alternative Nominee in accordance with Sections 1(a) through 1(e);
and
(ii)The Company hereby covenants that the Directors shall not fill any vacant or newly
created directorship for which Olympus or the Founder Stockholder are entitled to
nominate a Nominee other than in accordance with Sections 1(a) through 1(e).
(g)In addition to the nomination rights set forth in Section 1(a), from the Effective Date, for
so long as, at the applicable Measurement Time, Olympus Beneficially Owns shares of Common Stock
representing at least 5% of the Original Amount of Olympus, Olympus shall have the right, but not the
obligation, to nominate a person (a “Non-Voting Observer”) to attend meetings of the Board (including
any meetings of any committees thereof) in a non-voting observer capacity. Any such Non-Voting
Observer shall be permitted to attend all meetings of the Board and each committee thereof. Olympus
shall have the right to remove and replace its Non-Voting Observer for any reason at any time and from
time to time. The Company shall furnish to any Non-Voting Observer (i) notices of Board and Board
committee meetings no later than, and using the same form of communication as, notice of such meetings
are furnished to Directors and (ii) copies of any materials prepared for meetings of the Board or any
committee thereof that are furnished to the Directors no later than the time such materials are furnished to
the Directors; provided that failure to deliver notice or materials to such Non-Voting Observer in
connection with such Non-Voting Observer’s right to attend and/or review materials with respect to any
such meeting shall not, by itself, impair the validity of any action taken at such meeting. Such Non-
Voting Observer shall be required to execute or otherwise become subject to any codes of conduct or
confidentiality agreements of the Company generally applicable to Directors of the Company or as the
Company reasonably requests. Notwithstanding the foregoing, the Company reserves the right to
withhold any information and to exclude the Non-Voting Observer from receiving any materials and/or
attending any meeting or portion thereof if access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between the Company and its counsel.
(h)The Company shall pay all reasonable out-of-pocket expenses incurred by the Nominees
and the Non-Voting Observer in connection with the performance of his or her duties as a Director or his
or her service as a Non-Voting Observer, as applicable, and in connection with his or her attendance at
any meeting of the Board or a committee thereof.
(i) No reduction in the number of shares of Common Stock that Olympus Beneficially
Owns shall shorten the term of any incumbent Director. At the Effective Date, the Board shall be
comprised of nine members and the initial Olympus Nominees shall be Robert Morris, Manu Bettegowda,
Matt Boyd, Matt Bujor, Marty Durkin, Paul Donahue, Howard Heckes and Ginger Jones, and the initial
Founder Nominee shall be Michael Rubiera.
(j)For purposes of this Agreement:
(i)“Affiliate” of any person shall mean any other person controlled by, controlling, or
under common control with such person; where “control” (including, with its
correlative meanings, “controlling,” “controlled by,” and “under common control
with”) means possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities, by
contract, or otherwise).
(ii)“Beneficially Own” shall mean that a specified person has or shares the right, directly
or indirectly, through any contract, arrangement, understanding, relationship, or
otherwise, to vote shares of capital stock of the Company.
(iii)“Cause” shall mean with respect to the Founder Stockholder’s removal for Cause, the
following: (a) in the case that the Founder Stockholder is not party to an employment,
consulting, change in control, severance or similar written agreement between the
Founder Stockholder and the Company or an Affiliate, in each case, as approved by
the Board or applicable governing body of an Affiliate of the Company (or where
there is such an agreement but it does not define “cause”), “cause” as defined in the
Accelevation Holdings Corp. 2026 Omnibus Incentive Plan (with references therein
to Participants referring to the Founder Stockholder) or (b) if the Founder
Stockholder is party to a written employment, consulting, change in control,
severance or similar agreement between the Founder Stockholder and the Company
or an Affiliate (in each case, as approved by the Board or applicable governing body
of an Affiliate of the Company) that defines “cause,” “cause” as defined under such
agreement.
(iv)“Director” means any member of the Board.
(v)“Measurement Time” means, with respect to any election of Directors, immediately
prior to the mailing to shareholders of the Director Election Proxy Statement relating
to such election (or, if earlier, the filing of the definitive Director Election Proxy
Statement with the SEC).
(vi)“Nominee” means either an Olympus Nominee or a Founder Nominee. For purposes
of this Agreement, the term “Nominee” shall refer to any person validly designated
by a Nominating Party to serve on the Board pursuant to Section 1(a) or Section 1(b)
hereof.
(vii)“Original Amount of Olympus” means the aggregate number of shares of Common
Stock Beneficially Owned by Olympus upon completion of the IPO, as such number
may be adjusted from time to time for any reorganization, recapitalization, stock
dividend, stock split, reverse stock split, or other similar changes in the Company’s
capitalization.
(viii)“SEC” means the U.S. Securities and Exchange Commission.
(ix)“Total Number of Directors” means the total number of Directors comprising the
Board.
(k)So long as any Nominating Party has the right to nominate Nominees under Sections 1(a)
through 1(e) or any such Nominee is serving on the Board, the Company shall use its reasonable best
efforts to maintain in effect at all times directors’ and officers’ indemnity insurance coverage reasonably
satisfactory to the Nominating Parties, and the Company’s Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws (each as may be further amended, supplemented, or
waived in accordance with its terms) shall at all times provide for indemnification, exculpation and
advancement of expenses to the fullest extent permitted under applicable law.
(l)At such time as the Company ceases to be a “controlled company” and is required by
applicable law or the listing standards of The Nasdaq Global Select Market (the “Exchange”) to have a
majority of the Board comprised of “independent directors” (subject in each case to any applicable phase-
in periods), the Olympus Nominees shall include a number of persons that qualify as “independent
directors” under applicable law and the Exchange listing standards such that, together with any other
“independent directors” then serving on the Board that are not Olympus Nominees, the Board is
comprised of a majority of “independent directors.”
(m)At any time that any Nominating Party shall have any nomination rights under Section 1,
the Company shall not take any action, and the Company hereby covenants that the Directors shall not
take any action, (including in each case effecting any amendment to the Company’s Amended and
Restated Certificate of Incorporation or Amended and Restated Bylaws), that could reasonably be
expected to adversely affect such Nominating Party’s rights under this Agreement, in each case without
the prior written consent of Olympus. In addition, so long as Olympus has any nomination rights under
Section 1, the Company shall not increase or decrease the size of the Board without the prior written
consent of Olympus.
(n)Notwithstanding anything to the contrary in this Agreement, for so long as Olympus,
including through its Affiliates, Beneficially Owns at least 30% of the outstanding shares of Common
Stock of the Company, Olympus shall have the right to designate the Chair of the Board.
2.Company Obligations. The Company agrees to take all necessary corporate action to
ensure that, prior to the date that any Nominating Party ceases to hold rights to nominate directors
pursuant to this Agreement, (i) each Nominee is included in the Board’s slate of nominees to the
stockholders (the “Board’s Slate”) for each election of Directors, unless the Board determines, in good
faith, that the inclusion of a Nominee in the Board’s Slate would not be in the best interest of the
Company and its stockholders (other than Olympus or the Founder Stockholder), in which case, the
appointing Nominating Party shall have the right to nominate an alternate Nominee for inclusion in the
Board’s Slate; and (ii) whether or not a Nominee is included in the Board’s Slate, each Nominee shall be
included in the proxy statement (together with a supporting statement provided by Olympus or the
Founder Stockholder, as applicable) and proxy card prepared by management of the Company in
connection with soliciting proxies for every meeting of the stockholders of the Company called with
respect to the election of members of the Board (each, a “Director Election Proxy Statement”), and at
every adjournment or postponement thereof, and on every action or approval by written consent of the
stockholders of the Company or the Board with respect to the election of members of the Board. In order
to notify the Company when its obligations under this Section 2 have terminated, (x) Olympus will
promptly provide reporting to the Company after Olympus ceases to Beneficially Own at least 5% of the
Original Amount of Olympus, and (y) the Founder Stockholder will promptly provide reporting to the
Company after the Founder Stockholder ceases to Beneficially Own or hold an indirect economic interest
in at least 3% of the outstanding shares of Common Stock. The calculation of the number of Nominees
that Olympus is entitled to nominate to the Board’s Slate for any election of Directors shall be based on
the percentage of the Original Amount of Olympus at the applicable Measurement Time. Unless a
Nominating Party notifies the Company otherwise prior to the applicable Measurement Time, the
Nominees for such election shall be presumed to be the same Nominees currently serving on the Board,
and no further action shall be required of the Nominating Parties for the Board to include such Nominees
on the Board’s Slate as contemplated by clause (i) of this Section 2; provided that, in the event Olympus
is no longer entitled to nominate the full number of Olympus Nominees then serving on the Board,
Olympus shall provide advance written notice to the Company of which currently serving Olympus
Nominee(s) shall be excluded from the Board’s Slate and of any other changes to the list of Nominees. If
Olympus fails to provide such notice prior to the applicable Measurement Time, a majority of the
independent Directors then serving on the Board shall determine which of the Nominees then serving on
the Board will be included in the Board’s Slate as contemplated by clause (i) of this Section 2.
Furthermore, the Company agrees for so long as the Company qualifies as a “controlled company” under
the rules of the Exchange, the Company will elect to be a “controlled company” for purposes of the
Exchange and will disclose in its annual meeting proxy statement that it is a “controlled company” and
the basis for that determination. The Company and each Nominating Party acknowledge and agree that, as
of the Effective Date, the Company is a “controlled company.”
3.Committees. From and after the Effective Date hereof until such time as Olympus and its
Affiliates cease to Beneficially Own shares of Common Stock representing at least 5% of the Original
Amount of Olympus, the Company hereby covenants that the Board shall not form or designate any
committee of the Board unless Olympus has consented to such formation or designation. 
Notwithstanding the preceding sentence, the consent of Olympus shall not be required if:
(a)Olympus has been provided the opportunity to nominate a number of members of each
committee of the Board equal to the nearest whole number greater than the product obtained by
multiplying (i) the percentage of the Original Amount of Olympus then Beneficially Owned by Olympus
and (ii) the number of positions, including any vacancies, on the applicable committee; or
(b)none of the Directors nominated by Olympus pursuant to this Agreement are eligible to
serve on the applicable committee under applicable law or listing standards of the Exchange, including
any applicable independence requirements (subject in each case to any applicable exceptions, including
those for newly public companies and for “controlled companies,” and any applicable phase-in periods).
In addition, at any time when Olympus has the right to nominate at least one Nominee for
election to the Board, Olympus shall also have the right to have one of the Olympus Nominees hold one
seat on each committee of the Board, subject to satisfying any applicable stock exchange rules or
regulations regarding the independence of Board committee members.
The Company hereby covenants that the Nominees designated to serve on a Board committee
shall have the right to remain on such committee until the next election of Directors, regardless of the
percentage of the Original Amount of Olympus Beneficially Owned by Olympus following such
designation. Unless Olympus notifies the Company otherwise prior to the time the Board takes action to
change the composition of a Board committee, and to the extent Olympus has the requisite percentage of
the Original Amount of Olympus to designate a Board committee member at the time the Board takes
action to change the composition of any such Board committee, any Olympus Nominee to serve on a
committee shall be presumed to be re-designated for such committee. Without limiting the remedies
available to Olympus, the Company shall not consummate any act or transaction approved or
recommended by a committee of the Board formed or designated in a manner inconsistent with this
Section 3 without the prior written consent of Olympus.
4.Amendment and Waiver. Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by the
Company, Olympus and the Founder Stockholder; provided, that the consent of the Founder Stockholder
shall not be required for any amendment which would not have an effect on the Founder Stockholder, or
in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any
party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law. The Nominating Parties shall not be obligated to nominate all
(or any) of the Nominees they are entitled to nominate pursuant to this Agreement for any election of
Directors, but the failure to do so shall not constitute a waiver of their rights hereunder for any purpose;
provided, however, that, subject to Section 2, in the event any Nominating Party fails to nominate all (or
any) of the Nominees it is entitled to nominate pursuant to this Agreement prior to the applicable
Measurement Time, the Compensation and Nominating Committee of the Board shall be entitled to
nominate individuals in lieu of such Nominees for inclusion in the Board’s Slate and the applicable
Director Election Proxy Statement with respect to the election for which such failure occurred, and such
Nominating Party shall be deemed to have waived its rights hereunder solely with respect to such
election.
5.Benefit of Parties. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective permitted successors and assigns. Notwithstanding the foregoing,
the Company and the Founder Stockholder may not assign any of their respective rights or obligations
hereunder without the prior written consent of Olympus. Except as otherwise expressly provided in
Section 6, nothing herein contained shall confer or is intended to confer on any third party or entity that is
not a party to this Agreement any rights under this Agreement.
6.Assignment. Upon written notice to the Company, Olympus may assign to any Affiliate
of Olympus (other than a portfolio company) all of its rights hereunder and, following such assignment,
such assignee shall be deemed to have the rights and obligations of “Olympus” for all purposes
hereunder.
7.Termination. This Agreement shall terminate, (i) with respect to the rights and
obligations of Olympus, on the date on which Olympus Beneficially Owns shares of Common Stock
representing less than 5% of the Original Amount of Olympus and, (ii) with respect to the rights and
obligations of the Founder Stockholder, on the date upon which the Founder Stockholder Beneficially
Owns or holds an indirect economic interest in shares of Common Stock representing less than 3% of the
outstanding shares of Common Stock. Notwithstanding the foregoing, the provisions of Sections 10
through 19 shall survive the termination of this Agreement. No termination of this Agreement shall
relieve any party from liability for any breach of this Agreement prior to such termination.
8.Indemnification.
(a)The Company shall defend, indemnify and hold harmless Olympus, its Affiliates,
partners, employees, agents, Directors, managers, officers and controlling persons (collectively, the
“Indemnified Parties”) from and against any and all actions, causes of action, suits, claims, liabilities,
losses, damages, costs, expenses, or obligations of any kind or nature (whether accrued or fixed, absolute
or contingent) in connection therewith (including reasonable attorneys’ and experts’ fees and expenses)
incurred by the Indemnified Parties before or after the date of this Agreement (each, an “Action”) arising
directly or indirectly out of or in any way relating to (i) Olympus’s or its Affiliates’ Beneficial Ownership
of Common Stock or other equity securities of the Company or control or ability to influence the
Company or any of its subsidiaries (other than any such Actions (x) to the extent such Actions arise out of
any breach of this Agreement by an Indemnified Party or its Affiliates or the breach of any fiduciary or
other duty or obligation of such Indemnified Party to its direct or indirect equity holders, creditors, or
Affiliates or (y) to the extent such Actions are directly caused by such person’s willful misconduct), (ii)
the business, operations, properties, assets or other rights or liabilities of the Company or any of its
subsidiaries or (iii) any services provided prior to, on or after the date of this Agreement by any
Indemnified Party to the Company or any of its subsidiaries. The Company shall defend at its own cost
and expense in respect of any Action which may be brought against the Company and/or its Affiliates and
the Indemnified Parties. The Company shall defend at its own cost and expense any and all Actions which
may be brought in which the Indemnified Parties may be impleaded with others upon any Action by the
Indemnified Parties, except that if such damage shall be proven to be the direct result of gross negligence,
bad faith, or willful misconduct by any of the Indemnified Parties, then such Indemnified Party shall
reimburse the Company for the costs of defense and other costs incurred by the Company in proportion to
such Indemnified Party’s culpability as proven. In the event of the assertion against any Indemnified Party
of any Action or the commencement of any Action, the Company shall be entitled to participate in such
Action and in the investigation of such Action and, after written notice from the Company to such
Indemnified Party, to assume the investigation or defense of such Action (at the Company’s sole cost and
expense) with counsel of the Company’s choice at the Company’s expense; provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding anything to the
contrary contained herein, the Company may retain one firm of counsel to represent all Indemnified
Parties in such Action; provided, however, that the Indemnified Party shall have the right to employ a
single firm of separate counsel (and any necessary local or specialist counsel) and to participate in the
defense or investigation of such Action, and the Company shall bear the expense of such separate counsel
(and local counsel, if applicable). The Company further agrees that with respect to any Indemnified Party
who is employed, retained, or otherwise associated with, or appointed or nominated by, Olympus or any
of its Affiliates and who acts or serves as a Director, officer, manager, fiduciary, employee, consultant,
advisor, or agent of, for, or to the Company or any of its subsidiaries, that the Company or such
subsidiaries, as applicable, shall be primarily liable for all indemnification, reimbursements,
advancements, or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Party
acting in such capacity or capacities on behalf or at the request of the Company, whether the Indemnity
Obligations are created by law, organizational or constituent documents, contract (including this
Agreement), or otherwise. The Company hereby agrees that in no event shall the Company or any of its
subsidiaries have any right or claim against Olympus for contribution or have rights of subrogation
against Olympus through an Indemnified Party for any payment made by the Company or any of its
subsidiaries with respect to any Indemnity Obligation. In addition, the Company hereby agrees that in the
event that Olympus pays or advances an Indemnified Party any expenses with respect to an Indemnity
Obligation, the Company will, or will cause its subsidiaries to, as applicable, promptly reimburse
Olympus for such payment or advance upon request, subject to the receipt by the Company of a written
undertaking executed by the Indemnified Party and Olympus that makes such payment or advance to
repay any such amounts if it shall ultimately be determined by a court of competent jurisdiction that such
Indemnified Party was not entitled to be indemnified by the Company. The foregoing right to indemnity
and advancement shall be in addition to any rights that any Indemnified Party may have at common law,
pursuant to the Company’s Certificate of Incorporation or Bylaws, pursuant to any other contract with the
Company or otherwise, and shall remain in full force and effect following the completion or any
termination of the engagement. If for any reason the foregoing indemnification is unavailable to any
Indemnified Party or insufficient to hold it harmless as and to the extent contemplated by this Section 8,
then the Company shall contribute to the amount paid or payable by the Indemnified Party as a result of
such Action in such proportion as is appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Indemnified Party, as the case may be, on the other hand, as well as any other
relevant equitable considerations.
(b)The Company hereby acknowledges that certain of the Indemnified Parties have certain
rights to indemnification, advancement of expenses, and/or insurance provided by investment funds
managed by Olympus and certain of its Affiliates (collectively, the “Fund Indemnitors”). The Company
hereby agrees with respect to any indemnification, hold harmless obligation, expense advancement,
reimbursement provision, or any other similar obligation whether pursuant to or with respect to this
Agreement, the organizational documents of the Company or any of its subsidiaries, or any other
agreement, as applicable, (i) that the Company and its subsidiaries are the indemnitor of first resort (i.e.,
their obligations to the Indemnified Parties are primary and any obligation of the Fund Indemnitors to
advance expenses or to provide indemnification for claims, expenses, or obligations arising out of the
same or similar facts and circumstances suffered by any Indemnified Party are secondary), (ii) that the
Company shall be required to advance the full amount of expenses incurred by any Indemnified Party and
shall be liable for the full amount of all expenses, liabilities, obligations, judgments, penalties, fines and
amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement,
the organizational documents of the Company or any of its subsidiaries, or any other agreement, as
applicable, without regard to any rights any Indemnified Party may have against the Fund Indemnitors,
and (iii) that the Company, on behalf of itself and each of its subsidiaries, irrevocably waives,
relinquishes and releases the Fund Indemnitors from any and all Actions against the Fund Indemnitors for
contribution, subrogation or any other recovery of any kind in respect thereof. The Company further
agrees that no advancement or payment by the Fund Indemnitors on behalf of any Indemnified Party with
respect to any Action for which any Indemnified Party has sought indemnification from the Company
shall affect the foregoing, and the Fund Indemnitors shall have a right of contribution and/or be
subrogated to the extent of such advancement or payment to all of the rights of recovery of any
Indemnified Party against the Company. The Company agrees that the Fund Indemnitors are express
third-party beneficiaries of the terms of this Section 8(b).
9.Headings. Headings are for ease of reference only and shall not form a part of this
Agreement.
10.Governing Law. This Agreement shall be construed in accordance with and governed by
the law of the State of Delaware without giving effect to the principles of conflicts of laws of any
jurisdiction that would result in the application of any other laws.
11.Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based
on any matter arising out of or in connection with, the construction, interpretation, validity, performance
or enforceability of this Agreement shall be brought against any of the parties only in any federal court
located in the State of Delaware or any Delaware state court, and each of the parties hereby consents to
the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or
proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each of the parties agrees that service of process upon such party at
the address referred to in Section 18, together with written notice of such service to such party, shall be
deemed effective service of process upon such party.
12.WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT.
13.Entire Agreement. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements, understandings and
negotiations, both written and oral, among the parties with respect to the subject matter hereof.
14.Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall become effective when
each party shall have received a counterpart hereof signed by each of the other parties. An executed copy
or counterpart hereof delivered by facsimile shall be deemed an original instrument.
15.Severability. If any provision of this Agreement or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is found to be invalid or unenforceable in any
jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b)
the remainder of this Agreement and the application of such provision to other persons, entities or
circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
16.Further Assurances. Each of the parties hereto shall execute and deliver such further
instruments and do such further acts and things as may be required to carry out the intent and purpose of
this Agreement.
17.Specific Performance. Each of the parties hereto agrees that, notwithstanding any other
provision of this Agreement, irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms
and provisions hereof in any federal or state court located in the State of Delaware, in addition to any
other remedy to which they are entitled at law or in equity.
18.Notices. All notices, requests and other communications to any party or to the Company
shall be in writing (including telecopy or similar writing) and shall be given,
If to the Company:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:Michael Rubiera
Email:****
If to Olympus or any Olympus Nominee:
c/o Olympus Partners
Metro Center, 4th Floor, One Station Place
Stamford, CT 06902
Attention:Matt Boyd
Matt Bujor
Email:****
****
In each case, with a copy to (which shall not constitute notice):
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email:****
****
If to the Founder Stockholder or to the Founder Nominee:
The address set forth on the Founder Stockholder signature page hereto.
or to such other address or telecopier number as such party or the Company may hereafter specify for the
purpose of notice to the other parties and the Company. Each such notice, request, or other
communication shall be effective when delivered at the address specified in this Section 18 during regular
business hours.
19.Enforcement. Each of the parties hereto covenant and agree that the disinterested
members of the Board have the right to enforce, waive, or take any other action with respect to this
Agreement on behalf of the Company.
* * * * *
[Signature Page to Director Nomination Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first
written above.
ACCELEVATION HOLDINGS CORP.
By:
/s/ Kenneth Krause
Name:
Kenneth Krause
Title:
Chief Financial Officer
[Signature Page to Director Nomination Agreement]
ACCELEVATION PUBCO HOLDINGS LP
By:
/s/ Matt Boyd
Name:
Matt Boyd
Title:
President
ACCELEVATION INVESTMENT HOLDINGS
LLC
By:
/s/ Matt Boyd
Name:
Matt Boyd
Title:
President
OLYMPUS GROWTH FUND VIII PARALLEL L.P.
By:
OGP VIII, LLC
Its:
General Partner
By:
/s/ Robert S. Morris
Name:
Robert S. Morris
Title:
Managing Member
OLYMPUS GROWTH FUND VIII LP
By:
OGP VIII, LLC
Its:
General Partner
By:
/s/ Robert S. Morris
Name:
Robert S. Morris
Title:
Managing Member
OGP VIII, LLC
By:
/s/ Robert S. Morris
Name:
Robert S. Morris
Title:
Managing Member
[Signature Page to Director Nomination Agreement]
MICHAEL RUBIERA
By:
/s/ Michael Rubiera
Name:  Michael Rubiera
Address: ****
EX-10.2 7 exhibit102-8xkxllca.htm EX-10.2 Exhibit 10.2 - 8-K - LLCA
Exhibit 10.2
_______________________________________
ACCELEVATION HOLDINGS LLC
LIMITED LIABILITY COMPANY AGREEMENT
_______________________________________
Dated as of September 30, 2026
THE UNITS ISSUED PURSUANT TO THIS LIMITED LIABILITY COMPANY AGREEMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME
WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY
SET FORTH HEREIN.
CERTAIN UNITS MAY ALSO BE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
SET FORTH HEREIN AND/OR IN A SEPARATE AGREEMENT WITH THE INITIAL HOLDER OF
SUCH UNITS. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER OF
SUCH UNITS UPON WRITTEN REQUEST TO THE COMPANY AND WITHOUT CHARGE.
i
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ....................................................................................................
1
ARTICLE II ORGANIZATIONAL MATTERS ..................................................................
8
Section 2.1
Formation of LLC .................................................................................
8
Section 2.2
Limited Liability Company Agreement ................................................
8
Section 2.3
Name .....................................................................................................
8
Section 2.4
Purpose ..................................................................................................
8
Section 2.5
Principal Office; Registered Office .......................................................
8
Section 2.6
Term ......................................................................................................
9
Section 2.7
No State-Law Partnership .....................................................................
9
ARTICLE III UNITS, CAPITAL CONTRIBUTIONS AND ACCOUNTS .......................
9
Section 3.1
Units; Capitalization ..............................................................................
9
Section 3.2
Authorization and Issuance of Additional Units ...................................
10
Section 3.3
Repurchase or Redemptions ..................................................................
12
Section 3.4
Equity Subdivisions and Combinations ................................................
13
Section 3.5
General Authority ..................................................................................
13
Section 3.6
Capital Accounts ...................................................................................
13
Section 3.7
Negative Capital Accounts; No Interest Regarding Positive Capital
Accounts ................................................................................................
14
Section 3.8
No Withdrawal ......................................................................................
15
Section 3.9
Loans From Unitholders ........................................................................
15
Section 3.10
Adjustments to Capital Accounts for Distributions In-Kind .................
15
Section 3.11
Transfer of Capital Accounts ................................................................
15
Section 3.12
Adjustments to Book Value ..................................................................
15
Section 3.13
Compliance With Section 1.704-1(b) ....................................................
16
ARTICLE IV DISTRIBUTIONS AND ALLOCATIONS ...................................................
16
Section 4.1
Distributions ..........................................................................................
16
Section 4.2
Allocations .............................................................................................
17
Section 4.3
Special Allocations ................................................................................
17
Section 4.4
Offsetting Allocations ...........................................................................
19
Section 4.5
Tax Allocations .....................................................................................
19
Section 4.6
Indemnification and Reimbursement for Payments on Behalf of a
Member .................................................................................................
20
ARTICLE V MANAGEMENT AND CONTROL OF BUSINESS .....................................
21
Section 5.1
Management ..........................................................................................
21
Section 5.2
Investment Company Act ......................................................................
22
Section 5.3
Officers ..................................................................................................
22
ii
Section 5.4
Fiduciary Duties ....................................................................................
23
ARTICLE VI EXCULPATION AND INDEMNIFICATION .............................................
24
Section 6.1
Exculpation ............................................................................................
24
Section 6.2
Indemnification .....................................................................................
24
Section 6.3
Expenses ................................................................................................
25
Section 6.4
Non-Exclusivity; Savings Clause ..........................................................
25
Section 6.5
Insurance ...............................................................................................
25
ARTICLE VII ACCOUNTING AND RECORDS; TAX MATTERS ................................
25
Section 7.1
Accounting and Records .......................................................................
25
Section 7.2
Preparation of Tax Returns ....................................................................
25
Section 7.3
Tax Elections .........................................................................................
26
Section 7.4
Tax Controversies ..................................................................................
26
Section 7.5
Code § 83 Safe Harbor Election ............................................................
27
ARTICLE VIII TRANSFER OF UNITS; ADMISSION OF NEW MEMBERS ..............
28
Section 8.1
Transfer of Units ...................................................................................
28
Section 8.2
Recognition of Transfer; Substituted and Additional Members ............
28
Section 8.3
Expense of Transfer; Indemnification ...................................................
30
Section 8.4
Exchange Agreement ............................................................................
30
Section 8.5
Change of Control Transactions ............................................................
30
ARTICLE IX WITHDRAWAL AND RESIGNATION OF UNITHOLDERS .................
30
Section 9.1
Withdrawal and Resignation of Unitholders .........................................
30
ARTICLE X DISSOLUTION AND LIQUIDATION ..........................................................
30
Section 10.1
Dissolution .............................................................................................
30
Section 10.2
Liquidation and Termination .................................................................
31
Section 10.3
Securityholders Agreement ...................................................................
32
Section 10.4
Cancellation of Certificate .....................................................................
32
Section 10.5
Reasonable Time for Winding Up .........................................................
32
Section 10.6
Return of Capital ...................................................................................
32
Section 10.7
Hart-Scott-Rodino .................................................................................
32
ARTICLE XI GENERAL PROVISIONS .............................................................................
32
Section 11.1
Power of Attorney .................................................................................
32
Section 11.2
Amendments ..........................................................................................
33
Section 11.3
Title to the Company Assets .................................................................
33
Section 11.4
Remedies ...............................................................................................
33
Section 11.5
Successors and Assigns .........................................................................
33
Section 11.6
Severability ............................................................................................
33
iii
Section 11.7
Counterparts; Binding Agreement .........................................................
33
Section 11.8
Descriptive Headings; Interpretation .....................................................
34
Section 11.9
Applicable Law .....................................................................................
34
Section 11.10
Addresses and Notices ...........................................................................
34
Section 11.11
Creditors ................................................................................................
34
Section 11.12
No Waiver .............................................................................................
34
Section 11.13
Further Action .......................................................................................
35
Section 11.14
Entire Agreement ..................................................................................
35
Section 11.15
Delivery by Electronic Means ...............................................................
35
Section 11.16
Certain Acknowledgments ....................................................................
35
Section 11.17
Consent to Jurisdiction; WAIVER OF TRIAL BY JURY ....................
35
Section 11.18
Representations and Warranties ............................................................
36
Section 11.19
Tax Receivable Agreement ...................................................................
36
1
ACCELEVATION HOLDINGS  LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of Accelevation Holdings LLC, a
Delaware limited liability company (the “Company”), is entered into as of September 30, 2026, by and
among the Company, Accelevation Holdings Corp., a Delaware corporation (“Pubco”), Instor Blocker,
Inc., a Delaware corporation (“Instor Blocker”), and Accelevation Investment Holdings LLC, a Delaware
limited liability company (“Holdings”). Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in Article I.
WHEREAS, the Certificate was filed with the Office of the Secretary of State of Delaware on
September 23, 2026;
WHEREAS, in connection with and prior to the initial public offering of Class A Common Stock
of Pubco (the “IPO”), Pubco acquired certain Company membership interests;
WHEREAS, in connection with the IPO: (i) the Company and the Members desire to recapitalize
the Company’s membership interests pursuant to this Agreement such that (A) all of the membership
interests held by Holdings as of the date hereof are automatically converted into a number of Series B
Common Units that have an equivalent aggregate value as of the date hereof and (B) all of the
membership interests held by Pubco as of the date hereof are automatically converted into a number of
Series A Common Units that have an equivalent aggregate value as of the date hereof; (ii) Pubco will
purchase Series A Common Units using a portion of the net proceeds of the IPO; and (iii) Pubco, the
Company and Holdings will enter into an Exchange Agreement, pursuant to which Holdings will be
permitted to exchange Series B Common Units (together with the corresponding number of shares of
Class B Common Stock) for Class A Common Stock or the Cash Payment (as defined therein) (clauses (i)
through (iii), collectively, the “IPO Transactions”); and
WHEREAS, the parties hereto desire to enter into this Agreement to give effect to the IPO
Transactions and reflect the admission of Pubco as the sole manager of the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the following meaning:
“704(c) Event” has the meaning set forth in Section 4.5(b).
“Additional Member” means a Person admitted to the Company as a Member pursuant to Section
8.2.
“Adjusted Capital Account Deficit” means, with respect to any Capital Account as of the end of
any Taxable Year, the amount by which the balance in such Capital Account is less than zero. For this
purpose, such Person’s Capital Account balance shall be (i) reduced for any items described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) and (ii) increased for any amount such Person is
obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury
2
Regulation Sections 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704-2(g)(1)
and 1.704-2(i) (relating to Minimum Gain).
“Affiliate” of any Person means any other Person controlled by, controlling or under common
control with such Person, and in the case of any Unitholder that is a partnership, limited liability
company, corporation or similar entity, any partner, member or stockholder of such Unitholder; provided,
that the Company and its Subsidiaries shall not be deemed to be Affiliates of any Unitholder. As used in
this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and
“under common control with”) shall mean possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of securities, by contract or
otherwise).
“Agreement” means this Limited Liability Company Agreement, as it may be amended, modified
and/or waived from time to time in accordance with the terms hereof.
“Assumed Tax Liability” means, with respect to any Unitholder for any Fiscal Quarter, an
amount, which in the good faith estimation of the Manager, equals the product of (a) the amount of
taxable income of the Company allocable to such Unitholder in respect of such Fiscal Quarter (which
shall include gross or net income allocations of items of Profit or Loss), determined (w) by assuming such
Unitholder earned solely the items of income, gain, deduction, loss and/or credit allocated to such
Unitholder by the Company for such taxable period, (x) by including adjustments under Section 732(d),
734(b) and 743(b) of the Code, (y) by including adjustments to taxable income in respect of
Section 704(c) of the Code and (z) reducing such taxable income by net taxable losses of the Company
allocated to such Unitholder for prior taxable periods beginning after the date hereof to the extent that
such losses are of a character (ordinary or capital) that would permit the losses to be deducted by such
Unitholder against the current taxable income of the Company allocable to the Unitholder for such Fiscal
Quarter and have not previously been taken into account in determining such Unitholder’s Assumed Tax
Liability, multiplied by (b) the Assumed Tax Rate; provided that in the case of Pubco, the Assumed Tax
Liability shall in no event be less than an amount that will enable Pubco to meet its obligations pursuant
to the Tax Receivable Agreement for the relevant Taxable Year.
“Assumed Tax Rate” means the combined maximum U.S. federal, state and local income tax rate
applicable to a taxable individual or corporation in any jurisdiction in the United States (whichever is
higher), including pursuant to Section 1411 of the Code, in each case, taking into account all jurisdictions
in which the Company is required to file income tax returns and the relevant apportionment information,
in effect for the applicable Fiscal Quarter (making an appropriate adjustment for any rate changes that
take place during such period and taking into account the character of the income).
“Base Rate” means, as of any date, a variable rate per annum equal to the rate of interest most
recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.
“Board” means the board of directors of Pubco.
“Book Value” means, with respect to any of the Company property, the Company’s adjusted
basis for federal income Tax purposes, adjusted from time to time to reflect the adjustments required or
permitted (in the case of permitted adjustments, to the extent the Company makes such permitted
adjustments) by Treasury Regulation Sections 1.704-1(b)(2)(iv)(d)-(g).
“Business Day” means any day other than a Saturday, Sunday or other day on which the banks in
New York, New York, Chicago, Illinois or Miamisburg, Ohio are authorized by law to be closed.
3
“Capital Account” means the capital account maintained for a Member pursuant to Section 3.6
and the other applicable provisions of this Agreement.
“Capital Contributions” means any cash, cash equivalents, promissory obligations or the Fair
Market Value of other property which a Unitholder contributes or is deemed by the Manager to have
contributed to the Company with respect to any Unit pursuant to Section 3.1 or Section 3.11.
“Cash Payment” has the meaning set forth in the Exchange Agreement.
“Certificate” means the Company’s Certificate of Formation as filed with the Secretary of State
of Delaware, as the same may be amended from time to time.
“Change of Control Exchange” has the meaning set forth in the Exchange Agreement.
“Class A Common Stock” means shares of Class A common stock, par value $0.0001 per share,
of Pubco.
“Class A Common Stock Value” has the meaning set forth in the Exchange Agreement.
“Class B Common Stock” means shares of Class B common stock, par value $0.0001 per share,
of Pubco.
“Code” means the United States Internal Revenue Code of 1986, as amended. Such term, if
elected by the Manager in its sole discretion, shall be deemed to include any future amendments to the
Code and any corresponding provisions of succeeding Code provisions (whether or not such amendments
and corresponding provisions are mandatory or discretionary).
“Common Units” means the Series A Common Units and the Series B Common Units.
“Company” has the meaning set forth in the Preamble.
“Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. L. § 18-101, et seq.,
as it may be amended from time to time, and any successor thereto.
“Distribution” means each distribution made by the Company to a Unitholder, with respect to
such Person’s Units, whether in cash, property or securities and whether by liquidating distribution,
redemption, repurchase or otherwise; provided that notwithstanding anything in the foregoing to the
contrary, none of the following shall be deemed to be a Distribution hereunder: (i) any recapitalization,
exchange or conversion of securities of the Company; (ii) any subdivision (by unit split or otherwise) or
any combination (by reverse unit split or otherwise) of any outstanding Units; (iii) any Tax Distribution
and (iv) any repurchase of Units pursuant to any right of first refusal or similar repurchase right in favor
of the Company.
“Equity Agreement” has the meaning set forth in Section 3.2(a).
“Equity Securities” means (i) any Units, capital stock, partnership, membership or limited
liability company interests or other equity interests (including other classes, groups or series thereof
having such relative rights, powers and/or obligations as may from time to time be established by the
Manager, including rights, powers and/or duties different from, senior to or more favorable than existing
classes, groups and series of Units, capital stock, partnership, membership or limited liability company
4
interests or other equity interests, and including any profits interests), (ii) obligations, evidences of
indebtedness or other securities or interests convertible or exchangeable into Units, capital stock,
partnership interests, membership or limited liability company interests or other equity interests and (iii)
warrants, options or other rights to purchase or otherwise acquire Units, capital stock, partnership
interests, membership or limited liability company interests or other equity interests. Unless the context
otherwise indicates, the term “Equity Securities” refers to Equity Securities of the Company.
“Event of Withdrawal” means the death, retirement, resignation, expulsion, bankruptcy or
dissolution of a Member or the occurrence of any other event that terminates the continued membership
of a Member in the Company.
“Exchange” has the meaning set forth in the Exchange Agreement.
“Exchange Agreement” means the Exchange Agreement, dated as of the date hereof, by and
among Pubco, the Company and Holdings, as the same may be amended, amended and restated or
replaced from time to time.
“Exchange Rate” has the meaning set forth in the Exchange Agreement.
“Exchangeable Unit” has the meaning set forth in the Exchange Agreement.
“Exchanged Unit Amount” has the meaning set forth in the Exchange Agreement.
“Fair Market Value” means, as of any date of determination, (i) with respect to a Unit, such
Unit’s Pro Rata Share as of such date, (ii) with respect to a share of Class A Common Stock, the Class A
Common Stock Value as of such date, and (iii) with respect to any other non-cash assets, the fair market
value for such property as between a willing buyer under no compulsion to buy and a willing seller under
no compulsion to sell in an arm’s-length transaction occurring on such date, taking into account all
relevant factors determinative of value (including in the case of securities, any restrictions on transfer
applicable thereto or, if such securities are traded on a securities exchange or automated or electronic
quotation system, the quoted price for such securities as of the date of determination), as reasonably
determined in good faith by the Manager.
“Fiscal Quarter” means each calendar quarter ending March 31, June 30, September 30 and
December 31, or such other quarterly accounting period as may be established by the Manager.
“Fiscal Year” means the 12-month period ending on December 31, or such other annual
accounting period as may be established by the Manager.
“Forfeiture Allocations” has the meaning set forth in Section 4.3.
“Governmental Entity” means the United States of America or any other nation, any state or other
political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or
administrative functions of government.
“Holdings” has the meaning set forth in the Preamble, together with its successors and assigns;
provided that, in the event that Holdings has not appointed a successor prior to the date on which it
dissolves, liquidates, winds up, terminates or otherwise ceases to exist, Olympus shall be deemed to be a
successor to Holdings for all applicable purposes of this Agreement, including Section 7.4.
5
“HSR Act” has the meaning set forth in Section 10.7.
“Indemnitee” has the meaning set forth in Section 6.2.
“Instor Blocker” has the meaning set forth in the Preamble.
“Investment Company Act” means the Investment Company Act of 1940, as amended from time
to time.
“IPO” has the meaning set forth in the Recitals.
“IPO Transactions” has the meaning set forth in the Recitals.
“IPO 704(c) Event” has the meaning set forth in Section 3.12.
“IRS Notice” has the meaning set forth in Section 7.5.
“Liquidation Assets” has the meaning set forth in Section 10.2(b).
“Liquidation FMV” has the meaning set forth in Section 10.2(b).
“Liquidation Statement” has the meaning set forth in Section 10.2(b).
“Losses” means items of the Company loss and deduction determined according to Section 3.6.
“Manager” means (i) Pubco so long as Pubco has not withdrawn as the Manager pursuant to
Section 5.1(c) and (ii) any successor thereof appointed as Manager in accordance with Section 5.1(c).
Unless the context otherwise requires, references herein to the Manager shall refer to the Manager acting
in its capacity as such.
“Member” means each Person listed on the Unit Ownership Ledger and any Person admitted to
the Company as a Substituted Member or Additional Member in accordance with the terms and
conditions of this Agreement, in each case, in such Person's capacity as a member of the Company; but in
each case only for so long as such Person is shown on the Company’s books and records as the owner of
one or more Units.
“Minimum Gain” means the partnership minimum gain determined pursuant to Treasury
Regulation Section 1.704-2(d).
“Notice Date” has the meaning set forth in Section 4.5(b).
“Obligations” has the meaning set forth in Section 6.2.
“Olympus” means Olympus Growth Fund VII, L.P., a Delaware limited partnership, or
its designee.
“Partnership Representative” has the meaning set forth in Section 7.4(a).
“Partnership Tax Audit Rules” means Code Sections 6221 through 6241, together with any
guidance issued thereunder or successor provisions and any similar provision of state or local Tax laws.
6
“Permitted Transferee” means, with respect to any Person, (i) any of such Person’s Affiliates and
(ii) any direct or indirect partner, member, stockholder or other equityholder of such Person.
“Person” means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or
other entity or a Governmental Entity.
“Pro Rata Share” means with respect to each Unit, the proportionate amount such Unit would
receive if an amount equal to the Total Equity Value were distributed to all Units in accordance with
Section 4.1(b), as determined in good faith by the Manager.
“Profits” means items of the Company income and gain determined according to Section 3.6.
“Pubco” has the meaning set forth in the Preamble.
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of
the date hereof, by and among Pubco and certain other parties thereto, as the same may be amended,
amended and restated or replaced from time to time.
“Regulatory Allocations” has the meaning set forth in Section 4.3(e).
“Securities Act” means the Securities Act of 1933, as amended, and applicable rules and
regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a
specific section, rule or regulation of the Securities Act shall be deemed to include any corresponding
provisions of future law.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, and
applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any
reference herein to a specific section, rule or regulation of the Securities Exchange Act shall be deemed to
include any corresponding provisions of future law.
“Series A Common Unit” means a Unit having the rights and obligations specified with respect to
a Series A Common Unit in this Agreement.
“Series B Common Unit” means a Unit having the rights and obligations specified with respect to
a Series B Common Unit in this Agreement; provided, that a Series B Common Unit shall not have any
voting rights under this Agreement or the Delaware Act.
“Specified Audit” has the meaning set forth in Section 7.4(c).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company,
partnership, association or business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a
limited liability company, partnership, association or other business entity (other than a corporation), a
majority of partnership or other similar ownership interests thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof and without limitation, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or other business entity (other
7
than a corporation) if such Person or Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall be or control the manager,
managing member, managing director (or a board comprised of any of the foregoing) or general partner
of such limited liability company, partnership, association or other business entity. For purposes hereof,
references to a “Subsidiary” of any Person shall be given effect only at such times that such Person has
one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of
the Company.
“Substituted Member” means a Person that is admitted as a Member to the Company pursuant to
Section 8.2.
“Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, franchise,
estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise,
natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs,
duties, real property, personal property, capital stock, social security, unemployment, disability, payroll,
license, employee or other withholding or other tax of any kind whatsoever, including any transferee
liability and any interest, penalties or additions to tax or additional amounts in respect of the foregoing.
“Tax Advances” has the meaning set forth in Section 4.6.
“Tax Distribution” has the meaning set forth in Section 4.1(a)(i).
“Tax Distribution Conditions” has the meaning set forth in Section 4.1(a)(i).
“Tax Distribution Date” means April 10, June 10, September 10 and December 10 of each
calendar year, which shall be adjusted by the Manager as reasonably necessary to take into account
changes in estimated tax payment due dates for U.S. federal income Taxes under applicable law.
“Tax Receivable Agreement” means the Tax Receivable Agreement dated as of the date hereof,
by and among Pubco, the Company and the other parties thereto, as the same may be amended, amended
and restated or replaced from time to time.
“Taxable Year” means the Company’s accounting period for federal income Tax purposes
determined pursuant to Section 7.3.
“Total Equity Value” means, as of any date of determination, the aggregate proceeds which
would be received by the Unitholders if: (i) the assets of the Company were sold at their fair market value
to an independent third-party on arm’s-length terms, with neither the seller nor the buyer being under
compulsion to buy or sell such assets; (ii) the Company satisfied and paid in full all of its obligations and
liabilities (including all Taxes, costs and expenses incurred in connection with such transaction and any
amounts reserved by the Manager with respect to any contingent or other liabilities); and (iii) such net
sale proceeds were then distributed in accordance with Section 4.1, all as determined by the Manager in
good faith based upon the Class A Common Stock Value as of such date.
“Traditional Method with Curative Allocations” has the meaning set forth in Section 4.5(b).
“Transaction Documents” means, collectively, this Agreement, the Exchange Agreement, the
Registration Rights Agreement and the Tax Receivable Agreement.
“Transfer” has the meaning set forth in Section 8.1.
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“Treasury Regulations” means the income Tax regulations promulgated under the Code and
effective as of the date of this Agreement. Such term, if elected by the Manager in its sole discretion, shall
be deemed to include any future amendments to such regulations and any corresponding provisions of
succeeding regulations (whether or not such amendments and corresponding provisions are mandatory or
discretionary).
“Unit” means a limited liability company interest in the Company of a Member or representing a
fractional part of the interests in Profits, Losses and Distributions of the Company held by all Members
and shall include Common Units.
“Unit Ownership Ledger” has the meaning set forth in Section 3.1(b).
“Unitholder” means any owner of one or more Units as reflected on the Company’s books and
records.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1Formation of LLC. The Company was formed in the State of Delaware on
September 23, 2026 pursuant to the provisions of the Delaware Act.
Section 2.2Limited Liability Company Agreement. The Members hereby execute this
Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in
accordance with the provisions of the Delaware Act. The Members hereby agree that during the term of
the Company set forth in Section 2.6 the rights, powers and obligations of the Unitholders with respect to
the Company will be determined in accordance with the terms and conditions of this Agreement and,
except where the Delaware Act provides that such rights, powers and obligations specified in the
Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words
of similar effect and such rights, powers and obligations are set forth in this Agreement, the Delaware
Act; provided that, notwithstanding the foregoing and anything else to the contrary, Section 18-305(a) of
the Delaware Act (entitled “Access to and Confidentiality of Information; Records”) shall not apply to or
be incorporated into this Agreement and each Unitholder hereby expressly waives any and all rights under
such Section of the Delaware Act.
Section 2.3Name . The name of the Company shall be “Accelevation Holdings LLC”. The
Manager may change the name of the Company at any time and from time to time. Notification of any
such name change shall be given to all Unitholders. The Company’s business may be conducted under its
name and/or any other name or names deemed advisable by the Manager.
Section 2.4Purpose. The purpose and business of the Company shall be to manage and
direct the business operations and affairs of the Company and its Subsidiaries and to engage in any other
lawful acts or activities for which limited liability companies may be organized under the Delaware Act.
Section 2.5Principal Office; Registered Office. The principal office of the Company shall
be located at 9555 Springboro Pike Ste 400, Miamisburg, Ohio, 45342, or at such other place inside or
outside the state of Delaware as the Manager may from time to time designate, and all business and
activities of the Company shall be deemed to have occurred at its principal office. The Company may
maintain offices at such other place or places as the Manager deems advisable. The address of the
registered office of the Company in the State of Delaware shall be the office of the initial registered agent
named in the Certificate or such other office (which need not be a place of business of the Company) as
9
the Manager may designate from time to time in the manner provided by applicable law, and the
registered agent for service of process on the Company in the State of Delaware at such registered office
shall be the registered agent named in the Certificate or such Person or Persons as the Manager may
designate from time to time in the manner provided by applicable law.
Section 2.6Term. The term of the Company commenced upon the filing of the Certificate
with the office of the Secretary of State of the State of Delaware in accordance with the Delaware Act and
shall continue in existence until the cancellation of the Certificate in accordance with the Delaware Act.
Section 2.7No State-Law Partnership. The Unitholders intend that the Company not be a
partnership (including a limited partnership) or joint venture, and that no Unitholder be a partner or joint
venturer of any other Unitholder by virtue of this Agreement, for any purposes other than as set forth in
the last sentence of this Section 2.7, and neither this Agreement nor any other document entered into by
the Company or any Unitholder relating to the subject matter hereof shall be construed to suggest
otherwise. The Unitholders intend that the Company shall be treated as a partnership for federal and, if
applicable, state or local income Tax purposes, and that each Unitholder and the Company shall file all
Tax returns and shall otherwise take all Tax and financial reporting positions in a manner consistent with
such treatment.
ARTICLE III
UNITS, CAPITAL CONTRIBUTIONS AND ACCOUNTS
Section 3.1Units; Capitalization.
(a)Units; Capitalization. The Company shall have the authority to issue an unlimited number
of Series A Common Units and Series B Common Units. The ownership by a Member of Common Units
shall entitle such Member to allocations of Profits and Losses and other items and Distributions of cash
and other property as set forth in Article IV hereof.
(b)Unit Ownership Ledger; Capital Contributions. The Manager shall create and maintain a
ledger (the “Unit Ownership Ledger”) setting forth the name and address of each Unitholder, the number
of each class of Units held of record by each such Unitholder and the amount of the Capital Contribution
made with respect to each class of Units and the date of such Capital Contribution. Upon any change in
the number or ownership of outstanding Units (whether upon an issuance of Units, a Transfer of Units, a
cancellation of Units or otherwise), the Manager shall amend and update the Unit Ownership Ledger.
Absent manifest error, the ownership interests recorded on the Unit Ownership Ledger shall be conclusive
record of the Units that have been issued and are outstanding. Each Unitholder named in the Unit
Ownership Ledger has made (or shall be deemed to have made) Capital Contributions to the Company as
set forth in the Unit Ownership Ledger in exchange for the Units specified in the Unit Ownership Ledger.
Any reference in this Agreement to the Unit Ownership Ledger shall be deemed a reference to the Unit
Ownership Ledger as amended and in effect from time to time.
(c)Certificates; Legends. Units shall be issued in uncertificated form; provided that, at the
request of any Member, the Manager may cause the Company to issue one or more certificates to any
such Member holding Units representing in the aggregate the Units held by such Member. If any
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certificate representing Units is issued, then such certificate shall bear a legend substantially in the
following form:
THIS CERTIFICATE EVIDENCES UNITS REPRESENTING A
MEMBERSHIP INTEREST IN ACCELEVATION HOLDINGS LLC. THE
MEMBERSHIP INTEREST IN ACCELEVATION HOLDINGS LLC
REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY
NON-U.S. OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE THEREWITH. THE MEMBERSHIP INTEREST IN
ACCELEVATION HOLDINGS LLC REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER SET
FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF
ACCELEVATION HOLDINGS LLC, DATED AS OF SEPTEMBER 30, 2026,
AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF
WHICH SHALL BE FURNISHED BY THE COMPANY TO THE RECORD
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
(d)Conversion of Prior Membership Interests. Contemporaneous with the execution and
effectiveness of this Agreement, all of the membership interests in the Company that were issued and
outstanding and held by the Members immediately prior to the effectiveness of this Agreement are hereby
converted into the Series A Common Units and Series B Common Units, respectively, as set forth on the
Unit Ownership Ledger.
Section 3.2Authorization and Issuance of Additional Units.
(a)The Manager shall have the right to cause the Company to issue and/or create and issue at
any time after the date hereof, and for such amount and form of consideration as the Manager may
determine, additional Units or other Equity Securities of the Company (including creating classes or
series thereof having such powers, designations, preferences and rights as may be determined by the
Manager). The Manager shall have the power to make such amendments to this Agreement in order to
provide for such powers, designations, preferences and rights as the Manager in its discretion deems
necessary or appropriate to give effect to such additional authorization or issuance in accordance with the
provisions of this Section 3.2(a). In connection with any issuance of Units (whether on or after the date of
this Agreement), the Person who acquires such Units shall execute a counterpart to this Agreement
accepting and agreeing to be bound by all terms and conditions hereof, and shall enter into such other
documents, instruments and agreements to effect such purchase as are required by the Manager (including
such documents, instruments and agreements entered into on or prior to the date of this Agreement by the
Members, each, an “Equity Agreement”). The Company may not issue any additional Series A Common
Units or other Equity Securities to Pubco or any of its Subsidiaries except as set forth in Section 3.2(b),
Section 3.2(c) or Section 3.2(d).
(b)At any time Pubco issues one or more shares of Class A Common Stock or any other
Equity Securities of Pubco (other than an issuance of the type covered by Section 3.2(d) or an issuance to
a holder of Exchangeable Units pursuant to the Exchange Agreement, as described in Section 3.2(c)),
Pubco shall contribute to the Company all of the net proceeds (if any) received by Pubco with respect to
such share or shares of Class A Common Stock or other Equity Securities of Pubco. Upon the
contribution by Pubco to the Company of all of such net proceeds so received by Pubco, the Manager
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shall cause the Company to issue a number of Series A Common Units (if Pubco issues shares of Class A
Common Stock), determined based upon the Exchange Rate then in effect, or an equal number of such
Equity Securities of the Company corresponding to the Equity Securities issued by Pubco (if Pubco issues
Equity Securities other than shares of Class A Common Stock) registered in the name of Pubco so that the
aggregate number of Series A Common Units and other Equity Securities of the Company held by Pubco
at all times equals the number of shares of Class A Common Stock and other Equity Securities issued by
Pubco issued and outstanding; provided, however, that if Pubco issues one or more shares of Class A
Common Stock or other Equity Securities of Pubco, some or all of the net proceeds of which are to be
used to fund expenses or other obligations of Pubco for which Pubco would be permitted a Distribution
pursuant to Article IV, then Pubco shall not be required to transfer such net proceeds to the Company
which are used or will be used to fund such expenses or obligations; provided further, that if Pubco issues
any shares of Class A Common Stock in order to purchase or fund the purchase of Common Units from a
Member (other than a Subsidiary of Pubco), then the Company shall not issue any new Common Units
registered in the name of Pubco in accordance with Section 3.2(c) and Pubco shall not be required to
transfer such net proceeds to the Company (it being understood that such net proceeds shall instead be
transferred by Pubco to such other Member as consideration for such purchase). Notwithstanding the
foregoing, this Section 3.2(b) shall not apply to the issuance and distribution to holders of shares of Class
A Common Stock of rights to purchase Equity Securities of Pubco under a “poison pill” or similar
shareholder’s rights plan (it being understood that (i) upon exchange of Exchangeable Units for Class A
Common Stock pursuant to the Exchange Agreement, such Class A Common Stock would be issued
together with any such corresponding right, and (ii) in the event such rights to purchase Equity Securities
of Pubco are triggered, Pubco will ensure that the holders of Common Units that have not been exchanged
prior to such time will be treated equitably vis-à-vis the holders of Class A Common Stock under such
plan).
(c)At any time a holder of Exchangeable Units exchanges such Exchangeable Units for
shares of Class A Common Stock, the Company shall cancel such Exchangeable Units. Upon the
cancellation by the Company of the Exchangeable Units exchanged for shares of Class A Common Stock,
the Manager shall cause the Company to issue a number of Series A Common Units equal to the
Exchanged Unit Amount, registered in the name of Pubco in accordance with Section 2.6 of the Exchange
Agreement. At any time a holder of Exchangeable Units exchanges such Exchangeable Units for a Cash
Payment, the Company shall cancel such Exchangeable Units and the Manager shall cause the Company
to issue a number of Series A Common Units equal to the Exchanged Unit Amount, registered in the
name of Pubco in accordance with Section 2.6 of the Exchange Agreement.
(d)At any time Pubco issues one or more shares of Class A Common Stock or other Equity
Securities of Pubco in connection with an equity incentive program, whether such share or shares are
issued upon exercise (including cashless exercise) of an option, settlement of a restricted stock unit, as
restricted stock or otherwise, the Manager shall cause the Company to issue a corresponding number of
Series A Common Units or Equity Securities of the Company corresponding to the Equity Securities
issued by Pubco (if Pubco issues Equity Securities other than shares of Class A Common Stock), and with
substantially the same rights to dividends and distributions (including distributions upon liquidation) and
other economic rights as those of such Equity Securities of Pubco so issued, registered in the name of
Pubco (determined based upon the Exchange Rate then in effect) so that the aggregate number of Series A
Common Units and other Equity Securities held by Pubco at all times equals the number of shares of
Class A Common Stock and other Equity Securities issued and outstanding; provided that Pubco shall be
required to contribute to the Company all (but not less than all) of the net proceeds (if any) received by
Pubco from or otherwise in connection with such issuance of one or more shares of Class A Common
Stock or other Equity Securities of Pubco, including the exercise price of any option exercised. If any
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such shares of Class A Common Stock or other Equity Securities so issued by Pubco in connection with
an equity incentive program are subject to vesting or forfeiture provisions, then the Series A Common
Units or other Equity Securities of the Company corresponding to the Equity Securities issued by Pubco
(if Pubco issues Equity Securities other than shares of Class A Common Stock) that are issued by the
Company to Pubco in connection therewith in accordance with the preceding provisions of this Section
3.2(d) shall be subject to vesting or forfeiture on the same basis; if any of such shares of Class A
Common Stock or other Equity Securities of Pubco vest or are forfeited, then a corresponding number of
the Series A Common Units (determined based upon the Exchange Rate then in effect) or other Equity
Securities issued by the Company corresponding to the Equity Securities issued by Pubco (if Pubco issues
Equity Securities other than shares of Class A Common Stock) in accordance with the preceding
provisions of this Section 3.2(d) shall automatically vest or be forfeited. Any cash or property held by
Pubco or the Company or on any of such Person’s behalf in respect of dividends paid on restricted shares
of Class A Common Stock or other Equity Securities of Pubco that fail to vest shall be returned to the
Company upon the forfeiture of such restricted shares of Class A Common Stock or other Equity
Securities of Pubco.
(e)Pubco shall at all times reserve and keep available out of its authorized but unissued
Class A Common Stock, solely for the purpose of issuance upon an Exchange, the maximum number of
shares of Class A Common Stock as shall be issuable upon Exchange of all outstanding Series B
Common Units and shares of Class B Common Stock to satisfy its obligations under the Exchange
Agreement; provided that nothing contained herein shall be construed to preclude Pubco from satisfying
its obligations in respect of any such Exchange by delivery of purchased shares of Class A Common
Stock (which may or may not be held in the treasury of Pubco). If any shares of Class A Common Stock
require registration with or approval of any Governmental Entity under any federal or state law before
such shares may be issued upon an Exchange, Pubco shall use reasonable best efforts to cause the
exchange of such shares of Class A Common Stock to be duly registered or approved, as the case may be.
Pubco shall list and use its reasonable best efforts to maintain the listing of the Class A Common Stock
required to be delivered upon any such Exchange prior to such delivery upon the national securities
exchange upon which the outstanding shares of Class A Common Stock are listed at the time of such
Exchange (it being understood that any such shares may be subject to transfer restrictions under
applicable securities laws). Pubco covenants that all shares of Class A Common Stock issued upon an
Exchange will, upon issuance, be validly issued, fully paid and non-assessable.
(f)For purposes of this Section 3.2, “net proceeds” means gross proceeds to Pubco from the
issuance of Class A Common Stock or other securities less all reasonable bona fide out-of-pocket fees and
expenses of Pubco, the Company and their respective Subsidiaries actually incurred in connection with
such issuance.
Section 3.3Repurchase or Redemptions.
(a)Neither Pubco nor any of its Subsidiaries (other than the Company and its Subsidiaries)
may redeem, repurchase or otherwise acquire (i) shares of Class A Common Stock unless substantially
simultaneously therewith the Company redeems, repurchases or otherwise acquires from Pubco or such
Subsidiary an equal number of Series A Common Units for the same price per security, if any, or (ii) any
other Equity Securities of Pubco or any of its Subsidiaries (other than the Company and its Subsidiaries)
unless substantially simultaneously therewith the Company redeems, repurchases or otherwise acquires
from Pubco or such Subsidiary an equal number of the corresponding class or series of Equity Securities
of the Company with the same rights to dividends and distributions (including distributions upon
13
liquidation) and other economic rights as those of such Equity Securities of Pubco or such Subsidiary for
the same price per security, if any.
(b) The Company may not redeem, repurchase or otherwise acquire (i) any Series A
Common Units from Pubco or any of its Subsidiaries (other than the Company and its Subsidiaries)
unless substantially simultaneously Pubco or such Subsidiary redeems, repurchases or otherwise acquires
an equal number of shares of Class A Common Stock for the same price per security from holders thereof
or (ii) any other Equity Securities of the Company from Pubco or any of its Subsidiaries (other than the
Company and its Subsidiaries) unless substantially simultaneously Pubco or such Subsidiary redeems,
repurchases or otherwise acquires for the same price per security an equal number of Equity Securities of
Pubco or such Subsidiary of a corresponding class or series with substantially the same rights to dividends
and distributions (including distributions on liquidation) and other economic rights as those of such Units
of the Company.
Section 3.4Equity Subdivisions and Combinations. Except in accordance with the
Exchange Agreement or any other adjustments required by this Agreement:
(a)Any subdivision (by equity split, equity distribution, reclassification, recapitalization or
otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of Class
A Common Stock, Class B Common Stock or other related class or series of Equity Security of Pubco
(including any Equity Security held in treasury) shall be accompanied by an identical subdivision or
combination, as applicable, of the Common Units or other related class or series of Equity Security of the
Company, as applicable, with corresponding changes made with respect to any other exchangeable or
convertible Equity Security of the Company and Pubco.
(b)Any subdivision (by equity split, equity distribution, reclassification, recapitalization or
otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the
Units shall be accompanied by an identical subdivision or combination, as applicable, of the Class A
Common Stock, Class B Common Stock or other related class or series of Equity Security of Pubco
(including any Equity Security held in treasury), as applicable, with corresponding changes made with
respect to any other exchangeable or convertible Equity Security of the Company and Pubco.
Section 3.5General Authority. For the avoidance of doubt, but subject to Section 3.1,
Section 3.2, Section 3.3 and Section 3.4, the Company, Pubco and the Manager shall be permitted to
undertake all actions, including an issuance, redemption, reclassification, distribution, division or
recapitalization, with respect to the Series A Common Units as is necessary to maintain at all times a one-
to-one ratio between (i) the number of Series A Common Units owned by Pubco, directly or indirectly,
and the number of outstanding shares of Class A Common Stock and (ii) the number of outstanding
shares of Class B Common Stock held by any Person (other than Pubco) and the number of Series B
Common Units held by such Person.
Section 3.6Capital Accounts.
(a)Maintenance of Capital Accounts. The Company shall maintain a separate Capital
Account for each Unitholder according to the rules of Treasury Regulation Section 1.704-1(b)(2)(iv).
Without limiting the foregoing, each Unitholder’s Capital Account shall be adjusted:
(i)by adding any additional Capital Contributions made by such Unitholder
in consideration for the issuance of Units;
14
(ii)by deducting any amounts paid to such Unitholder in connection with the
redemption or other repurchase by the Company of Units;
(iii)by adding any Profits allocated in favor of such Unitholder and
subtracting any Losses allocated in favor of such Unitholder; and
(iv)by deducting any distributions paid in cash or other assets to such
Unitholder by the Company.
(b)Computation of Income, Gain, Loss and Deduction Items. For purposes of computing the
amount of any item of the Company income, gain, loss or deduction to be allocated pursuant to Article IV
and to be reflected in the Capital Accounts, the determination, recognition and classification of any such
item shall be the same as its determination, recognition and classification for federal income Tax purposes
(including any method of depreciation, cost recovery or amortization used for this purpose); provided
that:
(i)the computation of all items of income, gain, loss and deduction shall
include those items described in Code Section 705(a)(1)(B), Code Section 705(a)(2)(B) and
Treasury Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are
not includable in gross income or are not deductible for federal income Tax purposes;
(ii)if the Book Value of any Company property is adjusted pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such property;
(iii)items of income, gain, loss or deduction attributable to the disposition of
the Company property having a Book Value that differs from its adjusted basis for Tax purposes
shall be computed by reference to the Book Value of such property;
(iv)items of depreciation, amortization and other cost recovery deductions
with respect to the Company property having a Book Value that differs from its adjusted basis for
Tax purposes shall be computed by reference to the property’s Book Value in accordance with
Treasury Regulation Section 1.704-1(b)(2)(iv)(g);
(v)to the extent an adjustment to the adjusted Tax basis of any of the
Company’s asset pursuant to Code Sections 732(d), 734(b) or 743(b) is required pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such
basis); and if, as a result of an exercise of a noncompensatory option (as defined in Treasury
Regulations Section 1.721-2(f)) to acquire Units, a Capital Account reallocation is required under
Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective
allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).
Section 3.7Negative Capital Accounts; No Interest Regarding Positive Capital
Accounts. No Unitholder shall be required to pay to any other Unitholder or the Company any deficit or
negative balance which may exist from time to time in such Unitholder’s Capital Account (including
15
upon and after dissolution of the Company). Except as otherwise expressly provided herein, no
Unitholder shall be entitled to receive interest from the Company in respect of any positive balance in its
Capital Account and no Unitholder shall be liable to pay interest to the Company or any Unitholder in
respect of any negative balance in its Capital Account.
Section 3.8No Withdrawal. No Person shall be entitled to withdraw any part of such
Person’s Capital Contributions or Capital Account or to receive any Distribution from the Company,
except as expressly provided herein.
Section 3.9Loans From Unitholders. Loans by Unitholders to the Company shall not be
considered Capital Contributions. If any Unitholder shall loan funds to the Company in excess of the
amounts required hereunder to be contributed by such Unitholder to the capital of the Company, the
making of such loans shall not result in any increase in the amount of the Capital Account of such
Unitholder. The amount of any such loans shall be a debt of the Company to such Unitholder and shall be
payable or collectible in accordance with the terms and conditions upon which such loans are made.
Section 3.10Adjustments to Capital Accounts for Distributions In-Kind. To the extent
that the Company distributes property in-kind to the Members, the Company shall be treated as making a
distribution equal to the Fair Market Value of such property (as of the date of such distribution) for
purposes of Section 4.1 and such property shall be treated as if it were sold for an amount equal to its Fair
Market Value and any resulting gain or loss shall be allocated to the Members’ Capital Accounts in
accordance with Section 4.2 through Section 4.4. If the Company distributes property in kind to any
Unitholder, the Company shall (a) first, to the extent possible, distribute (and be deemed to distribute) to
such Unitholder any such property that the Unitholder contributed to the Company (or any such property
received by the Company in a tax-deferred exchange for property contributed to the Company by such
Unitholder) and (b) second, to the extent no further distribution can be made in accordance with subclause
(a), or if such Unitholder did not contribute property to the Company, then the Company shall, to the
extent possible, distribute (and be deemed to distribute) to the Unitholder property other than such
property that was contributed to the Company by another Unitholder (or any such property received by
the Company in a tax-deferred exchange for property contributed to the Company by a Unitholder), to the
extent that such Unitholder is entitled to receive a Distribution at such time under the economic priorities
set out in Article IV.
Section 3.11Transfer of Capital Accounts. The original Capital Account established for
each Substituted Member shall be in the same amount as the Capital Account of the Member (or portion
thereof) to which such Substituted Member succeeds at the time such Substituted Member is admitted to
as a Member of the Company. The Capital Account of any Member whose interest in the Company shall
be increased or decreased by means of (a) the Transfer to it of all or part of the Units of another Member
or (b) the repurchase or forfeiture of Units pursuant to any Equity Agreement shall be appropriately
adjusted to reflect such Transfer or repurchase. Any reference in this Agreement to a Capital Contribution
of or Distribution to a Member that has succeeded any other Member shall include any Capital
Contributions or Distributions previously made by or to the former Member on account of the Units of
such former Member Transferred to such Member.
Section 3.12Adjustments to Book Value. The Company shall adjust the Book Value of its
assets to Fair Market Value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f) as of
the following times: (a) at the Manager’s discretion in connection with the issuance of Units in the
Company or a more than de minimis Capital Contribution to the Company; (b) at the Manager’s discretion
in connection with the Distribution by the Company to a Member of more than a de minimis amount of
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the Company’s assets, including money; and (c) the liquidation of the Company within the meaning of
Treasury Regulations Section 1.704-1(b)(2)(ii)(g). Any such increase or decrease in Book Value of an
asset shall be allocated as a Profit or Loss to the Capital Accounts of the Members under Section 4.2
(determined immediately prior to the event giving rise to the revaluation). The Company shall adjust the
Book Value of its property under Treasury Regulations Section 1.704-1(b)(2)(iv)(f) in connection with
and immediately after the IPO Transactions (the “IPO 704(c) Event”).
Section 3.13Compliance With Section 1.704-1(b). The provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply with Treasury Regulations
Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Treasury
Regulations. In the event the Manager shall determine that it is prudent to modify the manner in which the
Capital Accounts are computed in order to comply with such Treasury Regulations, the Manager may
make such modification, notwithstanding anything in Section 11.2 to the contrary. The Manager also shall
(a) make any adjustments that are necessary or appropriate to maintain equality between the Capital
Accounts of the Members and the amount of the Company capital reflected on the Company’s balance
sheet, as computed for book purposes, in accordance with Treasury Regulations Section 1.704-1(b)(iv)(g),
and (b) make any appropriate modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Treasury Regulations Section 1.704-1(b).
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS
Section 4.1Distributions.
(a)Tax Distributions.
(i)Tax Distributions. To the extent funds of the Company are legally
available for distribution by the Company and such distribution would not be prohibited under
any credit facility to which the Company or any of its Subsidiaries is a party (the “Tax
Distribution Conditions”), with respect to each Fiscal Quarter, on or prior to the relevant Tax
Distribution Date, the Company shall distribute to each Unitholder an amount of cash (each a
“Tax Distribution”) equal to such Unitholder’s Assumed Tax Liability for such Fiscal Quarter. To
the extent a holder of Common Units would receive for any Fiscal Quarter less than its Pro Rata
Share of the aggregate Tax Distributions to be paid pursuant to the preceding sentence, the Tax
Distributions to such Unitholder shall be increased to ensure that all Tax Distributions to holders
of Common Units are made in accordance with their Pro Rata Share. The Manager shall be
entitled to adjust subsequent Tax Distributions up or down to reflect any variation between its
prior estimation of quarterly Tax Distributions and the Tax Distributions that would have been
computed under this Section 4.1(a)(i) based on subsequent information. In the event that due to
the Tax Distribution Conditions the funds available for any Tax Distribution to be made
hereunder are insufficient to pay the full amount of the Tax Distribution that would otherwise be
required under this Section 4.1(a)(i), the Company shall use its reasonable best efforts to
distribute to the Unitholders the amount of funds that are available after application of the Tax
Distribution Conditions on a pro rata basis (according to the amounts that would have been
distributed to each Unitholder pursuant to this Section 4.1(a)(i) if available funds (after
application of the Tax Distribution Conditions) existed in a sufficient amount to make such
Distribution in full). At any time thereafter when additional funds of the Company are available
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for Distribution after application of the Tax Distribution Conditions, the Company shall use its
reasonable best efforts to immediately distribute such funds to the Unitholders on a pro rata basis
(according to the amounts that would have been distributed to each Unitholder pursuant to this
Section 4.1(a)(i) if available funds (after application of the Tax Distribution Conditions) would
have existed in a sufficient amount to make such Tax Distribution in full). Notwithstanding the
foregoing, Distributions pursuant to Section 4.1(b) with respect any taxable period shall first be
treated as Tax Distributions pursuant to this Section 4.1(a)(i) to the extent of any entitlement
thereto.
(ii)Additional Tax Distributions. In the event (A) of any audit by, or similar
event with, a taxing authority that affects the calculation of any Unitholder’s Assumed Tax
Liability for any Taxable Year (other than an audit conducted pursuant to the Partnership Tax
Audit Rules for which no election is made pursuant to Code Section 6226 (or any similar
provision of state or local law)) or (B) the Company files an amended tax return, each
Unitholder’s Assumed Tax Liability with respect to such year shall be recalculated by giving
effect to such event (for the avoidance of doubt, taking into account interest and penalties). Any
shortfall in the amount of Tax Distributions the Unitholders and former Unitholders received for
the relevant Taxable Years based on such recalculated Assumed Tax Liability promptly shall be
distributed to such Unitholders and the successors of such former Unitholders in accordance with
their Pro Rata Share of such additional Tax Distributions, except, for the avoidance of doubt, to
the extent Distributions were made to such Unitholders and former Unitholders pursuant to
Section 4.1 in the relevant Taxable Years sufficient to cover such shortfall.
(b)Other Distributions. Except as otherwise set forth in Section 4.1(a), the Manager may
(but shall not be obligated to) make Distributions at such time, in such amounts and in such form
(including in-kind property) as determined by the Manager in its sole discretion, in each case to the
holders of Common Units immediately prior to such Distribution on a pro rata basis.
Section 4.2Allocations. Profits or Losses for any Fiscal Year shall be allocated among the
Unitholders in such a manner as to reduce or eliminate, to the extent possible, any difference, as of the
end of such Fiscal Year, between (a) the sum of (i) the Capital Account of each Unitholder, (ii) such
Unitholder’s share of Minimum Gain (as determined according to Treasury Regulation
Section 1.704-2(g)) and (iii) such Unitholder’s partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(2)) and (b) the respective net amounts, positive or negative, which
would be distributed to them or for which they would be liable to the Company under this Agreement and
the Delaware Act, determined as if the Company were to (i) liquidate the assets of the Company for an
amount equal to their Book Value and (ii) distribute the proceeds of such liquidation pursuant to Section
10.2.
Section 4.3Special Allocations.
(a)Minimum Gain Chargeback. Losses attributable to partner nonrecourse debt (as defined
in Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner required by Treasury
Regulation Section 1.704-2(i). If there is a net decrease during a Taxable Year in partner nonrecourse debt
minimum gain (as defined in Treasury Regulation Section 1.704-2(i)(2)), Profits for such Taxable Year
(and, if necessary, for subsequent Taxable Years) shall be allocated to the Unitholders in the amounts and
of such character as determined according to Treasury Regulation Section 1.704-2(i)(4).
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(b)Unitholder Nonrecourse Debt Minimum Chargeback. Nonrecourse deductions (as
determined according to Treasury Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be
allocated to each holder of Common Units ratably among such Unitholders based upon their ownership of
Common Units. Except as otherwise provided in Section 4.3(a), if there is a net decrease in the Minimum
Gain during any Taxable Year, each Unitholder shall be allocated Profits for such Taxable Year (and, if
necessary, for subsequent Taxable Years) in the amounts and of such character as determined according
to Treasury Regulation Section 1.704-2(f). This Section 4.3(b) is intended to be a Minimum Gain
chargeback provision that complies with the requirements of Treasury Regulation Section 1.704-2(f), and
shall be interpreted in a manner consistent therewith.
(c)Qualified Income Offset. If any Unitholder that unexpectedly receives an adjustment,
allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has
an Adjusted Capital Account Deficit as of the end of any Taxable Year, computed after the application of
Section 4.3(a) and Section 4.3(b), but before the application of any other provision of this Article IV, then
Profits for such Taxable Year shall be allocated to such Unitholder in proportion to, and to the extent of,
such Adjusted Capital Account Deficit. This Section 4.3(c) is intended to be a qualified income offset
provision as described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a
manner consistent therewith.
(d)Allocation of Certain Profits and Losses. Profits and Losses described in Section
3.6(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital
Accounts are required to be made pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(j), (k) and
(m).
(e)Regulatory Allocations. The allocations set forth in Sections 4.3(a)-(d) (the “Regulatory
Allocations”) are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the
Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the
Unitholders intend to allocate Profit and Loss of the Company or make the Company distributions.
Accordingly, notwithstanding the other provisions of this Article IV, but subject to the Regulatory
Allocations, income, gain, deduction and loss shall be reallocated among the Unitholders so as to
eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of
the Unitholders to be in the amounts (or as close thereto as possible) they would have been if Profit and
Loss (and such other items of income, gain, deduction and loss) had been allocated without reference to
the Regulatory Allocations. In general, the Unitholders anticipate that this will be accomplished by
specially allocating other Profit and Loss (and such other items of income, gain, deduction and loss)
among the Unitholders so that the net amount of the Regulatory Allocations and such special allocations
to each such Unitholder is zero. In addition, if in any Fiscal Year there is a decrease in partnership
Minimum Gain, or in partner nonrecourse debt Minimum Gain, and application of the Minimum Gain
chargeback requirements set forth in Section 4.3(a) or Section 4.3(b) would cause a distortion in the
economic arrangement among the Unitholders, the Unitholders may, if they do not expect that the
Company will have sufficient other income to correct such distortion, request the Internal Revenue
Service to waive either or both of such Minimum Gain chargeback requirements. If such request is
granted, this Agreement shall be applied in such instance as if it did not contain such Minimum Gain
chargeback requirement.
(f)The Unitholders acknowledge that allocations like those described in Proposed Treasury
Regulations Section 1.704-1(b)(4)(xii)(c) (“Forfeiture Allocations”) may result from the allocations of
Profits and Losses provided for in this Agreement. For the avoidance of doubt, the Company is entitled to
make Forfeiture Allocations and, once required by applicable final or temporary guidance, allocations of
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Profits and Losses will be made in accordance with Proposed Treasury Regulations
Section 1.704-1(b)(4)(xii)(c) or any successor provision or guidance.
(g)Any excess nonrecourse liabilities of the Company, within the meaning of Treasury
Regulation Section 1.752-3(a)(3), shall be allocated to the Members in any manner that is permissible
under the Treasury Regulations.
(h)Any item of deduction with respect to a Tax that is offset at the Manager’s election
pursuant to the second sentence of Section 4.6 against a Distribution to which a Unitholder is otherwise
entitled shall be allocated to such Unitholder. For the avoidance of doubt, all tax deductions described in
this Section 4.3(h) shall be taken into account in determining the amount of any Tax Distribution made
under the provisions of Section 4.1(a)(i).
Section 4.4Offsetting Allocations. If, and to the extent that, any Member is deemed to
recognize any item of income, gain, deduction or loss as a result of any transaction between such Member
and the Company pursuant to Sections 83, 482 or 7872 of the Code or any similar provision now or
hereafter in effect, the Manager shall use its commercially reasonable efforts to allocate any
corresponding Profit or Loss to the Member who recognizes such item in order to reflect the Members’
economic interest in the Company.
Section 4.5Tax Allocations.
(a)Allocations Generally. Except as provided in Section 4.5(b), for federal, state and local
income Tax purposes, each item of income, gain, loss or deduction shall be allocated among the
Unitholders in the same manner and in the same proportion that the corresponding book items have been
allocated among the Unitholders’ respective Capital Accounts; provided that, if any such allocation is not
permitted by the Code or other applicable law, then each subsequent item of income, gains, losses,
deductions and credits will be allocated among the Unitholders so as to reflect as nearly as possible the
allocation set forth herein in computing their Capital Accounts.
(b)Code Section 704(c) Allocations.
(i)As a result of the IPO 704(c) Event, items of Company taxable income,
gain, loss and deduction shall be allocated to take into account any variation between the adjusted
basis of such property for federal income tax purposes and its Book Value, in each case, in
accordance with the “traditional method,” except that the Company shall make curative
allocations of the resulting tax gain from the sale or disposition of each such property in a manner
that is intended to offset the effect of the cumulative amount of any "ceiling rule limitations" with
respect to allocations of depreciation or amortization deductions in respect of any such
differences between the Book Value of any such item of property and its adjusted Tax basis that
are created in connection with any such contribution or adjustment of Book Value for each such
property, as the case may be, as outlined in Treasury Regulation Section 1.704-3(c)(3)(iii)(B) (the
"Traditional Method with Curative Allocations").
(ii)If (A) any property is contributed (or deemed contributed for Tax
purposes) to the Company, or (B) if the Book Value of any Company property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f) (any such contribution or
adjustment of Book Value described in clauses (A) or (B), a "704(c) Event"), items of Company
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taxable income, gain, loss, and deduction shall be allocated using the Traditional Method with
Curative Allocations; provided, that with respect to any 704(c) Event, Holdings may withhold
consent to the use of the Traditional Method with Curative Allocations with respect to such
704(c) Event (including, for the avoidance of doubt, any 704(c) Event in connection with the IPO
Transactions) to the extent Holdings delivers written notice to the Company prior to February 21st
of the Taxable Year following the Taxable Year including the 704(c) Event (the "Notice Date")
that consent is withheld to the use of the Traditional Method with Curative Allocations with
respect to such 704(c) Event, and solely to the extent such written notice is timely delivered and
such consent is not unreasonably withheld or conditioned, Holdings shall cooperate in good faith
to timely agree on an alternative methodology permissible under Section 704(c) of the Code with
respect to the 704(c) Event, and such mutually agreed alternative methodology (unless the
Traditional Method with Curative Allocations is mutually agreed) shall be used by the Company
with respect to such 704(c) Event. The Company shall reasonably cooperate to provide its
analysis and any modeling with respect to the choice of allocation methodology for any Taxable
Year, as well as any other information reasonably requested by Holdings which is reasonably
necessary to determine whether to consent or object to such methodology, at least 10 days in
advance of the Notice Date for such Taxable Year.
(c)Section 754 Election. The Company will make an election under Section 754 of the Code
for its Taxable Year that includes or begins on the date of this Agreement, and shall have such election in
effect for each subsequent Taxable Year, to adjust the basis of the Company property as permitted and
provided in Sections 734 and 743 of the Code, and the Manager shall take commercially reasonable
efforts to cause each Person in which the Company owns a direct or indirect equity interest (other than a
Subsidiary) that is so treated as a partnership to have in effect any such election for such Taxable Years.
Such election shall be effective solely for federal (and, if applicable, state and local) income Tax purposes
and shall not result in any adjustment to the Book Value of any Company asset or to the Member’s
Capital Accounts (except as provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(m)).
(d)Allocation of Tax Credits, Tax Credit Recapture, Etc. Allocations of Tax credits, Tax
credit recapture and any items related thereto shall be allocated to the Unitholders according to their
interests in such items as determined by the Manager taking into account the principles of Treasury
Regulation Section 1.704-1(b)(4)(ii) and (viii).
(e)Corrective Allocations.  If necessary, the Company will make corrective allocations as set
forth in Treasury Regulation Section 1.704-1(b)(4)(x).
(f)Effect of Allocations. Allocations pursuant to this Section 4.5 are solely for purposes of
federal, state and local Taxes and shall not affect, or in any way be taken into account in computing, any
Unitholder’s Capital Account or share of Profits, Losses, Distributions (other than Tax Distributions) or
other items pursuant to any provision of this Agreement.
Section 4.6Indemnification and Reimbursement for Payments on Behalf of a Member.
Except as otherwise provided in Article VI, if the Company (or any other entity in which the Company
owns a direct or indirect interest) is required by law to make any payment to a Governmental Entity that
is specifically attributable to a Member or a Member’s status as such (including federal withholding
Taxes, state personal property Taxes and state unincorporated business Taxes, Taxes arising under the
Partnership Tax Audit Rules, the amount of any Taxes imposed under Code Section 1446(f), and any
interest, penalties, additions to Tax and expenses related to any such amounts) (“Tax Advances”), then
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such Member shall indemnify and contribute to the Company in full for the entire amount of Tax
Advances paid. The Manager may offset Distributions to which a Person is otherwise entitled under this
Agreement against such Person’s obligation to indemnify the Company for Tax Advances under this
Section 4.6 or with respect to any other amounts owed by the Member to the Company or any of its
Subsidiaries. A Member’s obligation to indemnify and make contributions to the Company under this
Section 4.6 shall survive the transfer or termination of any Member’s interest in any Units of the
Company, the termination of this Agreement, and the termination, dissolution, liquidation and winding up
of the Company (and for purposes of this Section 4.6 to the extent not prohibited by applicable law, the
Company shall be treated as continuing in existence). The Company may pursue and enforce all rights
and remedies it may have against each Member under this Section 4.6, including instituting a lawsuit to
collect such indemnification and contribution, with interest calculated at a rate equal to the Base Rate plus
three percentage points per annum (but not in excess of the highest rate per annum permitted by law),
compounded on the last day of each Fiscal Quarter. For the avoidance of doubt, any Taxes, penalties and
interest payable under the Partnership Tax Audit Rules by the Company or any fiscally transparent entity
in which the Company owns an interest shall be treated as Tax Advances specifically allocable to the
Members and the Partnership Representative shall use commercially reasonable efforts to allocate the
burden of (or any diminution in distributable proceeds resulting from) any such Taxes, penalties or
interest to the Members to whom such amounts are specifically attributable (whether as a result of their
status, actions, inactions or otherwise) as determined by the Partnership Representative.
ARTICLE V
MANAGEMENT AND CONTROL OF BUSINESS
Section 5.1Management.
(a)Except as otherwise specifically provided in this Agreement or the Delaware Act, the
business, property and affairs of the Company shall be managed, operated and controlled at the sole,
absolute and exclusive direction of the Manager in accordance with the terms of this Agreement. No
Members shall have management authority or voting or other rights over, or any other ability to take part
in the conduct or control of the business of, the Company. The Manager is hereby designated as a
“manager” within the meaning of Section 18-101(12) of the Delaware Act. The Manager is, to the extent
of its rights and powers set forth in this Agreement, an agent of the Company for the purpose of the
Company’s business, and the actions of the Manager taken in accordance with such rights and powers
shall bind the Company (and no Member shall have such right). The Manager shall have all necessary
powers to carry out the purposes, business and objectives of the Company. The Manager may delegate in
its discretion the authority to sign agreements and other documents and take other actions on behalf of the
Company to any Person (including any Member, officer or employee of the Company) to enter into and
perform any document on behalf of the Company.
(b)Without limiting Section 5.1(a), the Manager shall have the sole power and authority to
effect any of the following by the Company or any of its Subsidiaries in one or a series of related
transaction, in each case without the vote, consent or approval of any Unitholder: (i) any sale, lease,
transfer, exchange or other disposition of any, all or substantially all of the assets of the Company
(including the exercise or grant of any conversion, option, privilege or subscription right or any other
right available in connection with any assets at any time held by the Company); (ii) any merger,
consolidation, reorganization or other combination of the Company with or into another entity, (iii) any
acquisition; (iv) any issuance of debt or equity securities; (v) any incurrence of indebtedness; or (vi) any
dissolution. Except for any vote, consent or approval of any Unitholder expressly required by this
Agreement, if a vote, consent or approval of the Unitholders is required by the Delaware Act or other
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applicable law with respect to any action to be taken by the Company or matter considered by the
Manager, each Unitholder will be deemed to have consented to or approved such action or voted on such
matter in accordance with the consent or approval of the Manager on such action or matter.
(c)Pubco may withdraw as the Manager and appoint as its successor at any time upon
written notice to the Company (a) any wholly-owned Subsidiary of Pubco, (b) any Person of which Pubco
is a wholly-owned Subsidiary, (c) any Person into which Pubco is merged or consolidated or (d) any
transferee of all or substantially all of the assets of Pubco, which withdrawal and replacement shall be
effective upon the delivery of such notice. No appointment of a Person other than Pubco (or its successor,
as the case may be) as Manager shall be effective unless Pubco (or its successor, as the case may be) and
the new Manager provide all Members with contractual rights, directly enforceable by such Members
against the new Manager, to cause the new Manager to comply with all of the Manager’s obligations
under this Agreement.
Section 5.2Investment Company Act. The Manager shall use reasonable best efforts to
ensure that the Company shall not be subject to registration as an investment company pursuant to the
Investment Company Act.
Section 5.3Officers.
(a)Officers. Unless determined otherwise by the Manager, the officers of the Company shall
be a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and each
other officer of Pubco shall also be an officer of the Company, with the same title. All officers shall be
appointed by the Manager (or by the Chief Executive Officer to the extent the Manager delegates such
authority to the Chief Executive Officer) and shall hold office until their successors are appointed by the
Manager (or by the Chief Executive Officer to the extent the Manager delegates such authority to the
Chief Executive Officer). Two or more offices may be held by the same individual. The officers of the
Company may be removed by the Manager (or by the Chief Executive Officer to the extent the Manager
delegates such authority to the Chief Executive Officer) at any time for any reason or no reason.
(b)Other Officers and Agents. The Manager may appoint such other officers and agents as it
may deem necessary or advisable, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the Manager.
(c)Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer
of the Company and shall have the general powers and duties of supervision and management usually
vested in the office of a chief executive officer of a company. He or she shall preside at all meetings of
Members if present thereat.
(d)President. The President shall be the chief executive officer of the Company in the
absence of the Chief Executive Officer. In general, the President shall perform all duties incident to the
office of President and such other duties as may be prescribed from time to time by the Manager.
(e)Chief Financial Officer. The Chief Financial Officer shall be the chief financial officer of
the Company and shall keep and maintain or cause to be kept and maintained adequate and correct books
and records of accounts of the properties and business transactions of the Company. The books of account
shall at all times be open to inspection by the Manager. The Chief Financial Officer shall deposit all
monies and other valuables in the name of, and to the credit of, the Company with such depositaries as
may be designated by the Manager.
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(f)Treasurer. The Treasurer shall have the custody of Company funds and securities and
shall keep full and accurate account of receipts and disbursements. He or she shall deposit all moneys and
other valuables in the name and to the credit of the Company in such depositaries as may be designated
by the Manager or the Chief Executive Officer. The Treasurer shall disburse the funds of the Company as
may be ordered by the Manager, the Chief Executive Officer or the Chief Financial Officer, taking proper
vouchers for such disbursements. He or she shall render to the Manager and the Chief Executive Officer
whenever either of them may request it, an account of all his or her transactions as Treasurer and of the
financial condition of the Company. If required by the Manager, the Treasurer shall give the Company a
bond for the faithful discharge of his or her duties in such amount and with such surety as the Manager
shall prescribe.
(g)Secretary. The Secretary shall give, or cause to be given, notice of all meetings of
Members and all other notices required by applicable law or by this Agreement, and in case of his or her
absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by
the Chief Executive Officer, or by the Manager. He or she shall record all the proceedings of the meetings
of the Company and shall perform such other duties as may be assigned to him or her by the Manager or
by the Chief Executive Officer.
(h)Other Officers. Other officers, if any, shall have such powers and shall perform such
duties as shall be assigned to them, respectively, by the Manager or by the Chief Executive Officer.
Section 5.4Fiduciary Duties.
(a)Members and Unitholders. To the fullest extent permitted by law and notwithstanding
any duty otherwise existing at law or in equity, no Member or Unitholder, solely in its capacity as such,
shall owe any fiduciary duty to the Company, the Manager, any Member, any Unitholder or any other
Person bound by this Agreement, provided that the foregoing shall not eliminate the implied contractual
covenant of good faith and fair dealing. Nothing in this Section 5.4(a) shall limit the liabilities, duties or
obligations of any Member or Unitholder acting in his or her capacity as an officer or manager pursuant to
any other provision of this Agreement.
(b)Manager and Officers. Notwithstanding any other provision to the contrary in this
Agreement, except as set forth in Section 5.4(c), (i) the Manager shall, in its capacity as Manager, and not
in any other capacity, have the same fiduciary duties to the Company and the Unitholders and Members
as a member of the board of directors of a Delaware corporation; and (ii) each officer of the Company
shall, in his or her capacity as such, and not in any other capacity, have the same fiduciary duties to the
Company and the Unitholders and Members as an officer of a Delaware corporation. For the avoidance of
doubt, the fiduciary duties described in the immediately preceding clause (i) shall not be limited by the
fact that the Manager shall be permitted to take certain actions in its sole or reasonable discretion pursuant
to the terms of this Agreement or any agreement entered into in connection herewith.
(c)Manager Conflicts. The parties hereto acknowledge that the members of the Board will
owe fiduciary duties to Pubco and its stockholders. The Manager will use commercially reasonable and
appropriate efforts and means, as determined in good faith by the Manager, to minimize any conflict of
interest between the Members, on the one hand, and the stockholders of Pubco, on the other hand, and to
effectuate any transaction that involves or affects any of the Company, the Manager, the Members and/or
the stockholders of Pubco in a manner that does not (i) disadvantage the Members of their interests
relative to the stockholders of Pubco, (ii) advantage the stockholders of Pubco relative to the Members or
(iii) treat the Members and the stockholders of Pubco differently; provided that in the event of a conflict
24
between the interests of the stockholders of Pubco and the interests of the Members, such Members agree
that the Manager shall discharge its fiduciary duties to such Members by acting in the best interests of
Pubco’s stockholders.
(d)Waiver. Any duties and liabilities set forth in this Agreement shall replace those existing
at law or in equity and each of the Company, each Member and Unitholder and any other Person bound
by this Agreement hereby, to the fullest extent permitted by applicable law, including Section 18-1101(e)
of the Delaware Act, waives the right to make any claim, bring any action or seek any recovery based on
any duties or liabilities existing at law or in equity other than any such duties and liabilities set forth in
this Agreement.
(e)Survival. The provisions of this Section 5.4 shall survive any amendment, repeal or
termination of this Agreement.
ARTICLE VI
EXCULPATION AND INDEMNIFICATION
Section 6.1Exculpation.
(a)Actions in Capacity as a Member or Unitholder. To the fullest extent permitted by
applicable law, and except as otherwise expressly provided herein, no Member, Unitholder (other than the
Manager, acting in its capacity as such) or its respective Indemnitees shall be liable to the Company, any
Member, any Unitholder or any other Person bound by this Agreement as a result of or arising out any
action of or omission by such Member or Unitholder solely in its capacity as a Member or Unitholder,
except to the extent such Obligations arise out of such Member’s (i) material breach of this Agreement or
any other Transaction Document or (ii) bad faith violation of the implied contractual covenant of good
faith and fair dealing, in each case as determined by a final judgment, order or decree of an arbitrator or a
court of competent jurisdiction (which is not appealable or with respect to which the time for appeal
therefrom has expired and no appeal has been perfected).
(b)Other Actions. To the fullest extent permitted by applicable law, and except as otherwise
expressly provided herein, including Section 6.5, no Indemnitee shall be liable to the Company, any
Member, any Unitholder or any other Person bound by this Agreement as a result of or arising out of the
activities of the Indemnitee on behalf of the Company to the extent within the scope of the authority
reasonably believed by such Indemnitee to be conferred on such Indemnitee, except to the extent such
Indemnitee would not be entitled to exculpation or indemnification pursuant to the articles of
incorporation and bylaws of Pubco (as the same may be amended from time to time).
Section 6.2Indemnification. To the fullest extent permitted by applicable law, each of (a)
the Manager, (b) the Unitholders and the Members and their respective Affiliates, (c) the stockholders,
members, managers, directors, officers, partners, employees and agents of the Unitholders, the Members
and their respective Affiliates and (d) the officers and directors of the Manager, the Company and each of
their Subsidiaries (each, an “Indemnitee”) shall be indemnified and held harmless by the Company from
and against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses),
judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits
or proceedings, civil, criminal, administrative or investigative (collectively, “Obligations”), which at any
time may be imposed on, incurred by or asserted against such Indemnitee as a result of or arising out of
this Agreement, Pubco, the Company, their respective assets, businesses or affairs or the activities of the
Indemnitee on behalf of Pubco, the Company or any of their Subsidiaries to the extent within the scope of
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the authority reasonably believed to be conferred on such Indemnitee; provided, however, that, to the
extent such Indemnitee is not entitled to exculpation with respect to such Obligations pursuant to Section
6.5, the Indemnitee shall not be entitled to indemnification for any such Obligations to the extent such
Indemnitee would not be entitled to exculpation or indemnification pursuant to the articles of
incorporation and bylaws of Pubco (as the same may be amended from time to time); provided further,
that, to the extent such Indemnitee is entitled to exculpation with respect to such Obligations pursuant to
Section 6.5, the Indemnitee shall not be entitled to indemnification for any such Obligations to the extent
they arise out of such Indemnitee’s (i) material breach of this Agreement or any other Transaction
Document or (ii) bad faith violation of the implied contractual covenant of good faith and fair dealing.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Indemnitee was
not entitled to indemnification hereunder. Any indemnification pursuant to this Section 6.2 shall be made
only out of the assets of the Company and no Member shall have any personal liability on account
thereof.
Section 6.3Expenses. Expenses (including reasonable legal fees and expenses) incurred by
an Indemnitee in defending any claim, demand, action, suit or proceeding described in Section 6.2 shall,
from time to time, be advanced by the Company prior to the final disposition of such claim, demand,
action, suit or proceeding, upon receipt by the Company of an undertaking by or on behalf of the
Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be
indemnified as provided in Section 6.2; provided that such undertaking shall be unsecured and interest
free and shall be accepted without regard to an Indemnitee’s ability to repay amounts advanced and
without regard to an Indemnitee’s entitlement to indemnification.
Section 6.4Non-Exclusivity; Savings Clause. The indemnification and advancement of
expenses set forth in Section 6.2 and Section 6.3 shall not be exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any other agreement, policy
of insurance or otherwise. The indemnification and advancement of expenses set forth in Section 6.2 and
Section 6.3 shall continue as to an Indemnitee who has ceased to be a named Indemnitee and shall inure
to the benefit of the heirs, executors, administrators, successors and permitted assigns of such a Person. If
Article VI, Section 6.2 or Section 6.3 or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless exculpate, indemnify and advance
expenses each Indemnitee to the fullest extent permitted by any applicable portion of such sections not so
invalidated and to the fullest extent permitted by applicable law. The exculpation, indemnification and
advancement of expenses provisions set forth in Article VI, Section 6.2 and Section 6.3 shall be deemed
to be a contract between the Company and each of the persons constituting Indemnitees at any time while
such provisions remain in effect, whether or not such Person continues to serve in such capacity and
whether or not such Person is a party hereto. In addition, neither Article VI, Section 6.2 nor Section 6.3
may be retroactively amended to adversely affect the rights of any Indemnitee arising in connection with
any acts, omissions, facts or circumstances occurring prior to such amendment.
Section 6.5Insurance. The Company may purchase and maintain insurance on behalf of the
Indemnitees against any liability asserted against them and incurred by them in such capacity, or arising
out of their status as Indemnitees, whether or not the Company would have the power to indemnify them
against such liability under this Section 6.5.
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ARTICLE VII
ACCOUNTING AND RECORDS; TAX MATTERS
Section 7.1Accounting and Records. The books and records of the Company shall be made
and maintained, and the financial position and the results of its operations recorded, at the expense of the
Company, in accordance with such method of accounting as is determined by the Manager. The books
and records of the Company shall reflect all Company transactions and shall be made and maintained in a
manner that is appropriate and adequate for the Company’s business.
Section 7.2Preparation of Tax Returns. The Company shall arrange for the preparation
and timely filing of all Tax returns required to be filed by the Company, including making the elections
described in Section 7.3 and shall use reasonable best efforts to furnish, within seventy-five (75 days of
the close of each Taxable Year, the tax information reasonably required by the Unitholders (including a
final Schedule K-1) for federal and state income Tax and any other Tax reporting purposes. Each
Unitholder shall furnish to the Company all pertinent information in its possession relating to the
Company’s operations that is necessary to enable the Company’s income Tax returns to be prepared and
filed.
Section 7.3Tax Elections. The Taxable Year shall be the Fiscal Year unless otherwise
determined by the Manager and permitted or required by Section 706 of the Code. The Manager shall
determine whether to make or revoke any available election pursuant to the Code, except as otherwise set
forth in this Agreement. Each Unitholder will upon request supply any information necessary to give
proper effect to such election.
Section 7.4Tax Controversies.
(a)The Manager shall be the “partnership representative” (the “Partnership Representative”)
of the Company for purposes of the Partnership Tax Audit Rules, and, as such, shall be authorized to
designate any other Person selected by the Manager as the Partnership Representative or to designate any
Person as the “designated individual” within the meaning of Treasury Regulations Section
301.6223-1(b)(3).
(b)Subject to this Section 7.4, the Partnership Representative shall have the sole authority to
act on behalf of the Company in connection with, make all relevant decisions regarding the application of
and to exercise the rights and powers provided for in, the Partnership Tax Audit Rules, including making
any elections under the Partnership Tax Audit Rules or any decisions to settle, compromise, challenge,
litigate or otherwise alter the defense of any action, claim, proceeding, audit or examination before the
IRS or any other tax authority (each, an “Audit”), and to expend Company funds for professional services
and other expenses reasonably incurred in connection therewith.
(c)Without limiting the foregoing, the Partnership Representative shall give prompt written
notice to Holdings of the commencement of any Audit of the Company or any of its Subsidiaries (a
“Specified Audit”). The Partnership Representative shall (i) keep Holdings reasonably informed of the
material developments of any such Specified Audit, (ii) permit Holdings (or its designee) to participate
(including using separate counsel), in each case at Holdings’ sole cost and expense, in any such Specified
Audit and (iii) promptly notify Holdings of receipt of a notice of a final partnership adjustment (or
equivalent under applicable laws) or a final decision of a court or IRS appeals panel (or equivalent body
under applicable laws) with respect to such Specified Audit. The Partnership Representative or the
Company shall promptly provide Holdings with copies of all material correspondence between the
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Partnership Representative or the Company (as applicable) and any Governmental Entity in connection
with such Specified Audit and shall give Holdings a reasonable opportunity to review and comment on
any material correspondence, submission (including settlement or compromise offers) or filing in
connection with any such Specified Audit. Additionally, the Partnership Representative shall not (and the
Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or
abandon any Specified Audit in a manner that would reasonably be expected to have a disproportionate
(as compared to Pubco) and material adverse effect on Holdings (or its direct or indirect equityholders)
without Holdings’ prior written consent (not to be unreasonably withheld, delayed or conditioned). The
Partnership Representative shall obtain the prior written consent of Holdings (not to be unreasonably
withheld, delayed or conditioned) before (i) making an election under Section 6226(a) of the Code (or any
analogous provision of state or local Law) or (ii) taking any material action under the Partnership Tax
Audit Rules that would reasonably be expected to have a disproportionate (compared to Pubco) and
material adverse effect on Holdings, in the case of each of clauses (i) and (ii).
(d)This Section 7.4 shall be interpreted to apply to Members and former Members and shall
survive the transfer of a Member’s Company Units and the termination, dissolution, liquidation and
winding up of the Company and, for this purpose to the extent not prohibited by applicable law, the
Company shall be treated as continuing in existence.
Section 7.5Code § 83 Safe Harbor Election.
(a)By executing this Agreement, each Unitholder authorizes and directs the Company to
elect to have the “Safe Harbor” described in the proposed Revenue Procedure set forth in the Internal
Revenue Service Notice 2005-43 (the “IRS Notice”) or in any successor, guidance or provision apply to
any interest in the 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. For purposes of
making such Safe Harbor election, the Partnership Representative is hereby designated as the “partner
who has responsibility for federal income Tax reporting” by the Company and, accordingly, that
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. Each Unitholder hereby agrees to
comply with all requirements of the Safe Harbor described in the IRS Notice, including, the requirement
that each Unitholder shall prepare and file all federal income Tax returns reporting the income Tax effects
of each Unit issued by the Company that qualifies for the Safe Harbor in a manner consistent with the
requirements of the IRS Notice.
(b)Any Unitholder or former Unitholder that fails to comply with requirements set forth in
Section 7.5(a) shall indemnify and hold harmless the Company and each adversely affected Unitholder
and former Unitholder from and against any and all losses, liabilities, Taxes, damages, judgments, fines,
costs, penalties, amounts paid in settlement and reasonable out-of-pocket costs and expenses incurred in
connection therewith (including, costs and expenses of suits and proceedings and reasonable fees and
disbursements of counsel), in each case resulting from such Unitholder’s or former Unitholder’s failure to
comply with such requirements. The Manager may offset Distributions to which a Person is otherwise
entitled under this Agreement against such Person’s obligation to indemnify the Company and any other
Person under this Section 7.5(b) (and any amount so offset with respect to such Person’s obligation to
indemnify a Person other than the Company shall be paid over to such other Person by the Company). A
Unitholder’s obligations to comply with the requirements of Section 7.5(a) and to indemnify the
Company and any Unitholder or former Unitholder under this Section 7.5(b) shall survive such
Unitholder’s ceasing to be a Unitholder of the Company and/or the termination, dissolution, liquidation
and winding up of the Company, and, for purposes of this Section 7.5, the Company shall be treated as
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continuing in existence. The Company and any Unitholder or former Unitholder may pursue and enforce
all rights and remedies it may have against each Unitholder or former Unitholder under this Section
7.5(b), including (i) instituting a lawsuit to collect such indemnification and contribution, with interest
calculated at a rate equal to the Base Rate plus three percentage points per annum (but not in excess of the
highest rate per annum permitted by law), compounded on the last day of each Fiscal Quarter, and (ii)
specific performance and/or immediate injunctive or other equitable relief from any court of competent
jurisdiction (without the necessity of showing actual money damages, or posting any bond or other
security) in order to enforce or prevent any violation of the provisions of Section 7.5(a).
(c)Each Unitholder authorizes the Manager to amend paragraphs (a) and (b) of this Section
7.5 to the extent necessary to achieve substantially the same Tax treatment with respect to any interest
Units Transferred to a service provider by the Company in connection with services provided to the
Company as set forth in Section 4 of the IRS Notice (e.g., to reflect changes from the rules set forth in the
IRS Notice in subsequent Internal Revenue Service guidance); provided, that such amendment is not
materially adverse to any Unitholder (as compared with the after-Tax consequences that would result if
the provisions of the IRS Notice applied to all Units Transferred to a service provider by the Company in
connection with services provided to the Company).
ARTICLE VIII
TRANSFER OF UNITS; ADMISSION OF NEW MEMBERS
Section 8.1Transfer of Units. Other than as provided for in this Section 8.1, no Member
may sell, assign, transfer, grant a participation in, pledge, hypothecate, encumber or otherwise dispose of
(such transaction being herein collectively called a “Transfer”) all or any portion of its Units except with
the approval of the Manager, which may be granted or withheld in its sole discretion. Without the
approval of the Manager (but otherwise in compliance with Section 8.1), a Member may, at any time, (a)
Transfer any portion of such Member’s Units pursuant to the Exchange Agreement and (b) Transfer any
portion of such Member’s Units to a Permitted Transferee of such Member. Any purported Transfer of all
or a portion of a Member’s Units not complying with this Section 8.1 shall be void ab initio and shall not
create any obligation on the part of the Company or the other Members to recognize that purported
Transfer or to recognize the Person to which the Transfer purportedly was made as a Member. A Person
acquiring a Member’s Units pursuant to this Section 8.1 shall not be admitted as a substituted or
Additional Member except in accordance with the requirements of Section 8.2, but such Person shall, to
the extent of the Units transferred to it, be entitled to such Member’s (i) share of Distributions, (ii) share
of Profits and Losses and (iii) Capital Account in accordance with Section 3.6. Notwithstanding anything
in this Section 8.1 or elsewhere in this Agreement to the contrary, if a Member Transfers all or any
portion of its Units after the designation of a record date and declaration of a Distribution pursuant to
Section 4.1 and before the payment date of such distribution, the transferring Member (and not the Person
acquiring all or any portion of its Units) shall be entitled to receive such Distribution in respect of such
transferred Units.
Section 8.2Recognition of Transfer; Substituted and Additional Members.
(a)No direct or indirect Transfer of all or any portion of a Member’s Units may be made,
and no purchaser, assignee, transferee or other recipient of all or any part of such Units shall be admitted
to the Company as a substituted or Additional Member hereunder, unless:
(i)the provisions of Section 8.1 shall have been complied with;
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(ii)in the case of a proposed substituted or Additional Member that is (A) a
competitor or potential competitor of Pubco or the Company or their respective Subsidiaries, (B)
a Person with whom Pubco or the Company or their respective Subsidiaries has had or is
expected to have a material commercial or financial relationship or (C) likely to subject Pubco or
the Company or their respective Subsidiaries to any material legal or regulatory requirement or
obligation, or materially increase the burden thereof, in each case as determined by the Manager
in its sole discretion, the admission of the purchaser, assignee, transferee or other recipient as a
substituted or Additional Member shall have been approved by the Manager;
(iii)the Manager shall have been furnished with the documents effecting such
Transfer, in form and substance reasonably satisfactory to the Manager, executed and
acknowledged by both the seller, assignor or transferor and the purchaser, assignee, transferee or
other recipient, and the Manager shall have executed (and the Manager hereby agrees to execute)
any other documents on behalf of itself and the Members required to effect the Transfer;
(iv)the provisions of Section 8.2(b) shall have been complied with;
(v)the Manager shall be reasonably satisfied that such Transfer will not (A)
result in a violation of the Securities Act or any other applicable law or (B) cause an assignment
under the Investment Company Act;
(vi)such Transfer would not: (A) cause (or create a substantial risk of
causing) the Company to be treated as a “publicly traded partnership” within the meaning of
Section 7704 of the Code or any other association taxable as a corporation for federal income tax
purposes and, without limiting the generality of the foregoing, such Transfer shall not be effected
on or through an “established securities market” or a “secondary market or the substantial
equivalent thereof,” as such terms are used in Treas. Reg. § 1.7704-1; or (B) result in the
Company having more than 100 partners within the meaning of Treasury Regulations Section
1.7704-1(h) (determined taking into account the rules of Treasury Regulations Section
1.7704-1(h)(3); except as the Manager might reasonably determine that the Company can rely on
one or more of the secondary market safe harbors set forth in Treasury Regulations Section
1.7704-1(c)(3);
(vii)the Manager shall have received the opinion of counsel, if any, required
by Section 8.2(c) in connection with such Transfer; and
(viii)all necessary instruments reflecting such Transfer and/or admission shall
have been filed in each jurisdiction in which such filing is necessary in order to qualify the
Company to conduct business or to preserve the limited liability of the Members.
(b)Each Substituted Member and Additional Member shall be bound by all of the provisions
of this Agreement. Each Substituted Member and Additional Member, as a condition to its admission as a
Member, shall execute and acknowledge such instruments (including a counterpart of this Agreement and
the Exchange Agreement or a joinder agreement in customary form), in form and substance reasonably
satisfactory to the Manager, as the Manager reasonably deems necessary or desirable to effectuate such
admission and to confirm the agreement of such substituted or Additional Member to be bound by all the
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terms and provisions of this Agreement with respect to the Units acquired by such substituted or
Additional Member. The admission of a substituted or Additional Member shall not require the consent of
any Member (but shall require the consent of the Manager, if and to the extent such consent of the
Manager is expressly required by this Article VIII). As promptly as practicable after the admission of a
substituted or Additional Member, the Unit Ownership Ledger and other books and records of the
Company and Exhibit A shall be changed to reflect such admission.
(c)As a further condition to any Transfer of all or any part of a Member’s Units, the
Manager may, in its discretion, require a written opinion of counsel to the transferring Member
reasonably satisfactory to the Manager, obtained at the sole expense of the transferring Member,
reasonably satisfactory in form and substance to the Manager, as to such matters as are customary and
appropriate in transactions of this type, including (or, in the case of any Transfer made to a Permitted
Transferee, limited to an opinion) to the effect that such Transfer will not result in a violation of the
registration or other requirements of the Securities Act or any other federal or state securities laws. No
such opinion, however, shall be required in connection with a Transfer made pursuant to the Exchange
Agreement.
Section 8.3Expense of Transfer; Indemnification. All reasonable costs and expenses
incurred by the Manager and the Company in connection with any Transfer of a Member’s Units,
including any filing and recording costs and the reasonable fees and disbursements of counsel for the
Company, shall be paid by the transferring Member. In addition, the transferring Member hereby
indemnifies the Manager and the Company against any losses, claims, damages or liabilities to which the
Manager, the Company or any of their Affiliates may become subject arising out of or based upon any
false representation or warranty made by, or breach or failure to comply with any covenant or agreement
of, such transferring Member or such transferee in connection with such Transfer.
Section 8.4Exchange Agreement. In connection with any Transfer of any portion of a
Member’s Units pursuant to the Exchange Agreement, the Manager shall cause the Company to take any
action as may be required under the Exchange Agreement or requested by any party thereto to effect such
Transfer promptly.
Section 8.5Change of Control Transactions. In the event (i) Pubco enters into an
agreement to consummate a Change of Control (as defined in the Tax Receivable Agreement) transaction
or (ii) any Person commences a tender offer or exchange offer for any of the outstanding shares of
Pubco’s stock, Pubco will take all reasonable actions in order to effect any Change of Control Exchange.
ARTICLE IX
WITHDRAWAL AND RESIGNATION OF UNITHOLDERS
Section 9.1Withdrawal and Resignation of Unitholders. No Unitholder shall have the
power or right to withdraw or otherwise resign from the Company prior to the dissolution and winding up
of the Company pursuant to Article X, without the prior written consent of the Manager (which consent
may be withheld by the Manager in its sole discretion), except as otherwise expressly permitted by this
Agreement. Upon a Transfer of all of a Unitholder’s Units in a Transfer permitted by this Agreement, and
(if applicable) the Equity Agreements, such Unitholder shall cease to be a Unitholder. Notwithstanding
that payment on account of a withdrawal may be made after the effective time of such withdrawal, any
completely withdrawing Unitholder will not be considered a Unitholder for any purpose after the effective
time of such complete withdrawal, and, in the case of a partial withdrawal, such Unitholder’s Capital
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Account (and corresponding voting and other rights) shall be reduced for all other purposes hereunder
upon the effective time of such partial withdrawal.
ARTICLE X
DISSOLUTION AND LIQUIDATION
Section 10.1Dissolution. The Company shall not be dissolved by the admission of Additional
Members or Substituted Members. The Company shall dissolve, and its affairs shall be wound up upon
the first of the following to occur:
(a)at the election of the Manager;
(b)at any time there are not members of the Company unless the Company is continued
without dissolution in accordance with the Delaware Act; and
(c)the entry of a decree of judicial dissolution of the Company under Section 18-802 of the
Delaware Act.
Except as otherwise set forth in this Article X, the Company is intended to have perpetual
existence. An Event of Withdrawal shall not cause a dissolution of the Company and the Company shall
continue in existence subject to the terms and conditions of this Agreement.
Section 10.2Liquidation and Termination. On the dissolution of the Company, the Manager
shall act as liquidator or may appoint one or more representatives, Members or other Persons as
liquidator(s). The liquidators shall proceed diligently to wind up the affairs of the Company and make
final distributions as provided herein and in the Delaware Act. The costs of liquidation shall be borne as
the Company’s expense. Until final distribution, the liquidators shall continue to operate the Company
properties with all of the power and authority of the Manager. The steps to be accomplished by the
liquidators are as follows:
(a)The liquidators shall pay, satisfy or discharge from the Company’s funds all of the debts,
liabilities and obligations of the Company (including all expenses incurred in liquidation) or otherwise
make reasonable provision for payment thereof (including the establishment of a cash fund for contingent
liabilities in such amount and for such term as the liquidators may reasonably determine).
(b)As promptly as practicable after dissolution, the liquidators shall (i) determine the Fair
Market Value (the “Liquidation FMV”) of the Company’s remaining assets (the “Liquidation Assets”) in
accordance with Article X, (ii) determine the amounts to be distributed to each Unitholder in accordance
with Section 4.1 and (iii) deliver to each Unitholder a statement (the “Liquidation Statement”) setting
forth the Liquidation FMV and the amounts and recipients of such Distributions, which Liquidation
Statement shall be final and binding on all Unitholders.
(c)As soon as the Liquidation FMV and the proper amounts of Distributions have been
determined in accordance with Section 10.2(b), the liquidators shall promptly distribute the Company’s
Liquidation Assets to the holders of Units in accordance with Section 4.1(b). In making such
distributions, the liquidators shall allocate each type of Liquidation Assets (i.e., cash or cash equivalents,
preferred or common equity securities, etc.) among the Unitholders ratably based upon the aggregate
amounts to be distributed with respect to the Units held by each such holder; provided that the liquidators
may allocate each type of Liquidation Assets so as to give effect to and take into account the relative
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priorities of the different Units; provided, further that, in the event that any securities are part of the
Liquidation Assets, each Unitholder that is not an “accredited investor” as such term is defined under the
Securities Act may, in the sole discretion of the Manager, receive, and hereby agrees to accept, in lieu of
such securities, cash consideration with an equivalent value to such securities as determined by the
Manager. Any non-cash Liquidation Assets will first be written up or down to their Fair Market Value,
thus creating Profit or Loss (if any), which shall be allocated in accordance with Section 4.2 and Section
4.3. If any Unitholder’s Capital Account is not equal to the amount to be distributed to such Unitholder
pursuant to Section 10.2(b), Profits and Losses for the Fiscal Year in which the Company is dissolved
shall be allocated among the Unitholders in such a manner as to cause, to the extent possible, each
Unitholder’s Capital Account to be equal to the amount to be distributed to such Unitholder pursuant to
Section 10.2(b). The distribution of cash and/or property to a Unitholder in accordance with the
provisions of this Section 10.2(b) constitutes a complete return to the Unitholder of its Capital
Contributions and a complete distribution to the Unitholder of its interest in the Company and all the
Company property and constitutes a compromise to which all Unitholders have consented within the
meaning of the Delaware Act. To the extent that a Unitholder returns funds to the Company, it has no
claim against any other Unitholder for those funds.
Section 10.3Securityholders Agreement. To the extent that units or other equity securities of
any Subsidiary are distributed to any Unitholders and unless otherwise agreed to by the Manager, such
Unitholders hereby agree to enter into a securityholders agreement with such Subsidiary and each other
Unitholder which contains rights and restrictions in form and substance similar to the provisions and
restrictions set forth herein (including in Article VIII).
Section 10.4Cancellation of Certificate. On completion of the winding up of the Company,
including the distribution of the Company’s assets as provided herein, the Company shall be terminated
(and the Company shall not be terminated prior to such time) upon the Manager (or such other Person or
Persons as the Delaware Act may require or permit) causing the filing of a certificate of cancellation of
the Certificate with the Secretary of State of Delaware, and the Manager or such other authorized Person
or Persons shall in connection with the winding up of the Company cancel any other filings made
pursuant to this Agreement that are or should be canceled and take such other actions as may be necessary
to terminate the Company. The Company shall be deemed to continue in existence for all purposes of this
Agreement until it is terminated pursuant to this Section 10.4.
Section 10.5Reasonable Time for Winding Up. A reasonable time shall be allowed for the
orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to
Section 10.2 in order to minimize any losses otherwise attendant upon such winding up.
Section 10.6Return of Capital. The liquidators shall not be personally liable for the return of
Capital Contributions or any portion thereof to the Unitholders (it being understood that any such return
shall be made solely from the Company assets).
Section 10.7Hart-Scott-Rodino. In the event the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the “HSR Act”) is applicable to any Unitholder, the dissolution of the Company shall not be
consummated until such time as the applicable waiting period (and extensions thereof) under the HSR Act
have expired or otherwise been terminated with respect to each such Unitholder.
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ARTICLE XI
GENERAL PROVISIONS
Section 11.1Power of Attorney. Each Unitholder hereby constitutes and appoints the
Manager and the liquidators, if any and as applicable, and their respective designees, with full power of
substitution, as his, her or its true and lawful agent and attorney-in-fact, with full power and authority in
his, her or its name, place and stead, to execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (to the same extent such Person could take such action): (a) this Agreement, all
certificates and other instruments and all amendments hereof or thereof in accordance with the terms
hereof which the Manager deems appropriate or necessary to form, qualify or continue the qualification
of, the Company as a limited liability company in the State of Delaware and in all other jurisdictions in
which the Company may conduct business or own property or as otherwise permitted herein; (b) all
instruments, agreements, amendments or other documents which the Manager deems appropriate or
necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance
with its terms; (c) all conveyances and other instruments or documents which the Manager and/or the
liquidators deems appropriate or necessary to reflect the dissolution and liquidation of the Company
pursuant to the terms of this Agreement, including a certificate of cancellation; and (d) all instruments
relating to the admission, withdrawal or substitution of any Unitholder pursuant to Article VIII or
Article IX. The foregoing power of attorney is irrevocable and coupled with an interest, and shall survive
the death, disability, incapacity, dissolution, bankruptcy, insolvency or termination of any Unitholder and
the Transfer of all or any portion of his, her or its Units and shall extend to such Unitholder’s heirs,
successors, permitted assigns and personal representatives.
Section 11.2Amendments. This Agreement may be amended (including, for purposes of this
Section 11.2, any amendment effected directly or indirectly by way of a merger or consolidation of the
Company) or waived, in whole or in part, by the Manager; provided, however, that to the extent any
amendment or waiver, including any amendment or waiver of the Exhibits attached hereto, would
disproportionately and adversely affect the rights of any Member of a class compared with the rights of
any other Member of such class, such amendment or waiver may only be made by the Manager upon the
prior written consent of such disproportionately and adversely affected Member.
Section 11.3Title to the Company Assets. The Company’s assets shall be deemed to be
owned by the Company as an entity, and no Unitholder, individually or collectively, shall have any
ownership interest in such assets or any portion thereof. Legal title to any or all of such assets may be
held in the name of the Company or one or more nominees, as the Manager may determine. The Manager
hereby declares and warrants that any Company assets for which legal title is held in the name of any
nominee shall be held in trust by such nominee for the use and benefit of the Company in accordance with
the provisions of this Agreement. All Company assets shall be recorded as the property of the Company
on its books and records, irrespective of the name in which legal title to such assets is held.
Section 11.4Remedies. Each Unitholder and the Company shall have all rights and remedies
set forth in this Agreement and all rights and remedies which such Person has been granted at any time
under any other agreement or contract and all of the rights which such Person has under any law. Any
Person having any rights under any provision of this Agreement or any other agreements contemplated
hereby shall be entitled to enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and to exercise all other
rights granted by law.
34
Section 11.5Successors and Assigns. All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives and permitted assigns, whether so expressed or not.
Olympus is an express third party beneficiary of its rights under this Agreement.
Section 11.6Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the
effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein or if such term or provision could be drawn more narrowly so as not to be illegal,
invalid, prohibited or unenforceable in such jurisdiction, it shall be so narrowly drawn, as to such
jurisdiction, without invalidating the remaining terms and provisions of this Agreement or affecting the
legality, validity or enforceability of such term or provision in any other jurisdiction.
Section 11.7Counterparts; Binding Agreement. This Agreement may be executed
simultaneously in two or more separate counterparts, any one of which need not contain the signatures of
more than one party, but each of which will be an original and all of which together shall constitute one
and the same agreement binding on all the parties hereto. This Agreement and all of the provisions hereof
shall be binding upon and effective as to each Person who (a) executes this Agreement in the appropriate
space provided in the signature pages hereto notwithstanding the fact that other Persons who have not
executed this Agreement may be listed on the signature pages hereto and (b) may from time to time
become a party to this Agreement by executing a counterpart of or joinder to this Agreement.
Section 11.8Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the
plural and vice versa. The use of the word “including” in this Agreement shall be by way of example
rather than by limitation. Reference to any agreement, document or instrument means such agreement,
document or instrument as amended or otherwise modified from time to time in accordance with the
terms thereof, and if applicable hereof. Whenever required by the context, references to a Fiscal Year
shall refer to a portion thereof. The use of the words “or,” “either” and “any” shall not be exclusive. The
parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists
between this Agreement and any other agreement, this Agreement shall control but solely to the extent of
such conflict.
Section 11.9Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict
of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Delaware.
Section 11.10Addresses and Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given or made when (a) delivered personally to the recipient, (b) telecopied to the
35
recipient, or delivered by means of electronic mail if telecopied/emailed on a Business Day, and
otherwise on the next Business Day or (c) one (1) Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid). Such notices, demands and other communications
shall be sent to the address for such recipient set forth in the Company’s books and records, or to such
other address or to the attention of such other person as the recipient party has specified by prior written
notice to the sending party.
Section 11.11Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to
the Company or any of its Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Company in favor of such creditor) at any time as a result of making the loan
any direct or indirect interest in the Company’s Profits, Losses, Distributions, capital or property other
than as a secured creditor. Notwithstanding the foregoing, each of the Indemnitees are intended third
party beneficiaries of Section 6.2 and shall be entitled to enforce such provision (as it may be in effect
from time to time) directly as if a party hereto.
Section 11.12No Waiver. No failure by any party hereto to insist upon the strict performance
of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant,
duty, agreement or condition.
Section 11.13Further Action. The parties hereto agree to execute and deliver all documents,
provide all information and take or refrain from taking such actions as may be necessary or appropriate to
achieve the purposes of this Agreement, in each case, as and when requested by the Manager.
Section 11.14Entire Agreement. This Agreement and the other Transaction Documents
embody the complete agreement and understanding among the parties with respect to the subject matter
herein and supersede and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter hereof in any way.
Section 11.15Delivery by Electronic Means. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection herewith or therewith or
contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered
by means of a facsimile machine or electronic transmission in portable document format (pdf) or
comparable electronic transmission, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. At the request of any party hereto or to any such agreement or
instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile
machine or pdf electronic transmission or comparable electronic transmission to deliver a signature or the
fact that any signature or agreement or instrument was transmitted or communicated through the use of a
facsimile machine or pdf electronic transmission as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
Section 11.16Certain Acknowledgments. This Agreement shall be considered for all purposes
as having been prepared through the joint efforts of the parties hereto. To the fullest extent permitted by
law, no presumption shall apply in favor of any party hereto in the interpretation of this Agreement or in
the resolution of any ambiguity of any provision hereof based on the preparation, substitution, submission
or other event of negotiation, drafting or execution hereof. Each Member and Unitholder acknowledges
36
that such Member or Unitholder is entitled to and has been afforded the opportunity to consult legal
counsel of its choice regarding the terms, conditions and legal effects of this Agreement, as well as the
advisability and propriety thereof. Each Member and Unitholder further acknowledges that having so
consulted with legal counsel of its choosing, such Member or Unitholder hereby waives any right to raise
or rely upon the lack of representation or effective representation in any future proceedings or in
connection with any future claim resulting from this Agreement or the formation of the Company.
Section 11.17Consent to Jurisdiction; WAIVER OF TRIAL BY JURY.
(a)Consent to Jurisdiction. Each party hereto irrevocably submits to the exclusive
jurisdiction of the United States District Court for the State of Delaware and the state courts of the State
of Delaware for the purposes of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each party hereto further agrees that service of any process, summons,
notice or document by United States certified or registered mail (in each such case, prepaid return receipt
requested) to such party hereto’s respective address set forth in the Company’s books and records or such
other address or to the attention of such other person as the recipient party has specified by prior written
notice to the sending party shall be effective service of process in any action, suit or proceeding in
Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each party hereto irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the State of Delaware or the state courts of the
State of Delaware and hereby irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
(b)WAIVER OF TRIAL BY JURY. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES HERETO WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY
HERETO HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE
PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED
AMONG THE PARTIES HEREUNDER.
Section 11.18Representations and Warranties. By execution of this Agreement, each
Member severally represents and warrants as follows:
(a)Such Member has full legal right, power and authority to deliver this Agreement and the
other Transaction Documents and to perform such Member’s obligations hereunder and thereunder;
(b)This Agreement and the other Transaction Documents constitute the legal, valid and
binding obligation of such Member enforceable in accordance with its respective terms, except as the
enforcement thereof may be limited by bankruptcy and other laws of general application relating to
creditors’ rights or general principles of equity;
37
(c)Neither this Agreement nor the other Transaction Documents violate, conflict with, result
in a breach of the terms, conditions or provisions of or constitute a default or an event of default under
any other agreement of which such Member is a party; and
(d)Such Member’s investment in Units in the Company is made for such Member’s own
account for investment purposes only and not with a view to the resale or distribution of such Units in
violation of applicable securities laws.
Section 11.19Tax Receivable Agreement. The Tax Receivable Agreement and the Exchange
Agreement shall each be treated as part of this Agreement as described in Section 761(c) of the Code, and
Treas. Reg. § 1.704-1(b)(2)(ii)(h) and § 1.761-1(c) with respect to payments to a Member with respect to
an Exchange (as defined in the Tax Receivable Agreement) by such Member.
* * * * *
Signature Page to
Accelevation Holdings LLC Limited Liability Company Agreement
IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their
behalf this Limited Liability Company Agreement as of the date first written above.
MEMBERS
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
ACCELEVATION INVESTMENT HOLDINGS
LLC
By:
/s/ Matt Boyd
Name: Matt Boyd
Title: President
INSTOR BLOCKER, INC.
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
MANAGER
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
UNIT OWNERSHIP LEDGER
On file with the Company.
EX-10.3 8 exhibit103-8xkxtra.htm EX-10.3 Exhibit 10.3 - 8-K - TRA
Exhibit 10.3
TAX RECEIVABLE AGREEMENT
by and among
ACCELEVATION HOLDINGS CORP.,
ACCELEVATION HOLDINGS LLC
and
THE OTHER PERSONS NAMED HEREIN
Dated as of September 30, 2026
TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE AGREEMENT (this “Agreement”), dated as of September 30, 2026, is hereby
entered into by and among Accelevation Holdings Corp., a Delaware corporation (“PubCo”), Accelevation
Holdings LLC, a Delaware limited liability company (“OpCo”), Instor Blocker, Inc., a Delaware corporation
(“Instor”), and each of the undersigned parties and the other persons who agree to become party to this Agreement
and who shall thereafter be listed on Schedule A attached hereto from time to time (each a “Rights Holder” and
collectively, the “Rights Holders”).
RECITALS
WHEREAS, the Rights Holders directly or indirectly hold certain equity interests in OpCo (the “Units”) and/
or PubCo;
WHEREAS, OpCo is treated as a partnership for U.S. federal income tax purposes and PubCo is treated as a
corporation for U.S. federal income tax purposes;
WHEREAS, after the IPO, PubCo will be the manager of OpCo and will hold, directly and/or indirectly,
certain Units;
WHEREAS, in connection with the IPO, Accelevation Pubco Holdings, LP (“PubCo Holdings”) will
contribute all of the units in Olympus Blocker to PubCo in exchange for Class A Shares (the “Olympus Blocker
Contribution”);
WHEREAS, immediately after the Olympus Blocker Contribution, Olympus Blocker will make an election
on IRS Form 8832 to be treated as an entity disregarded as separate from its owner that is effective the same day as
the Olympus Blocker Contribution;
WHEREAS, in connection with the IPO, PubCo shall capitalize Accelevation Merger Sub 1 Corp., a newly
formed wholly owned Delaware corporation with certain Class A Shares, and Accelevation Merger Sub 1 Corp.
shall merge with and into the LFM Blocker, whereby PubCo Holdings will receive additional Class A Shares, and
immediately thereafter the LFM Blocker shall merge with and into Accelevation Merger Sub 2 LLC, a newly
formed wholly owned Delaware limited liability company with Accelevation Merger Sub 2 LLC surviving (the
“LFM Blocker Reorganizations”);
WHEREAS, as a result of the Olympus Blocker Contribution and LFM Blocker Reorganizations, the
Corporate Taxpayer will (i) be entitled to utilize Blocker Attributes (as defined below) and (ii) obtain the benefit of
the Blocker Transferred Basis (as defined below);
WHEREAS, in connection with the IPO, Pubco Holdings will contribute to Pubco all of its interests in
Accelevation Transition Management Inc. in exchange for Class A Shares (the “Accelevation Management
Reorganization”, and together with the Olympus Blocker Contribution and LFM Blocker Reorganization, the
“Blocker Reorganization”).
WHEREAS, in connection with the IPO, PubCo shall capitalize Instor with certain Class A Shares and
Accelevation Investment Holdings LLC (“Investment Holdings”) will contribute certain Units of OpCo to Instor in
exchange for the Class A Shares in a taxable transaction (“OpCo Exchange”);
WHEREAS, in connection with the IPO, PubCo will acquire (directly or indirectly) IPO Units for a
contribution of cash to OpCo not treated as part of a disguised sale under Section 707(a) of the Code (the
“IPO Exchange”);
WHEREAS, as a result of the OpCo Exchange and IPO Exchange, as applicable, the Corporate Taxpayer
will be entitled to obtain the benefit of the IPO Basis;
WHEREAS, the Units held by certain of the Rights Holders subsequently may be exchanged for Class A
Shares and/or cash or other property, in accordance with and subject to the provisions of the Exchange Agreement;
WHEREAS, as a result of an Exchange, the Corporate Taxpayer will (i) be entitled to use the Basis
Adjustments relating to such Units exchanged in the Exchange and (ii) obtain the benefit of the Exchange
Transferred Basis;
WHEREAS, OpCo and each of its direct and indirect subsidiaries, if any, treated as a partnership for U.S.
federal income tax purposes will have in effect an election under Section 754 of the Code (i) for each Taxable Year
that includes the IPO and (ii) for each Taxable Year in which a taxable acquisition (including a deemed taxable
acquisition under Section 707(a) of the Code) or non-taxable acquisition of Units by the Corporate Taxpayer from
any of the Rights Holders for stock of the Corporate Taxpayer and/or cash or redemption by OpCo, in each case of
this clause (ii), occurs in connection with the IPO or after the IPO (and such acquisition from, including any deemed
taxable acquisition under Section 707(a) of the Code, or redemption, an “Exchange”);
WHEREAS, the income, gain, loss, expense and other Tax items of the Corporate Taxpayer may be affected
by the (i) Blocker Attributes, (ii) Blocker Transferred Basis, (iii) IPO Basis, (iv) Exchange Transferred Basis, (v)
Basis Adjustments and (vi) Imputed Interest (as defined below) (collectively, the “Tax Attributes”); and
WHEREAS, the parties to this Agreement desire to provide for certain payments and to make certain
arrangements with respect to the effect of the Tax Attributes on the liability for taxes of the Corporate Taxpayer.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set
forth in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the terms set forth in this Article I shall have the
following meanings.
“Accrued Amount” has the meaning set forth in Section 3.1(a)(iii).
“Accrued Payment” has the meaning set forth in Section 3.6.
“Actual Tax Liability” means, with respect to any Taxable Year, the sum of (a) the actual liability of the
Corporate Taxpayer for U.S. federal income Taxes (if applicable, determined in accordance with a Determination or
Amended Schedule and by assuming any state and local income taxes relevant to calculating such U.S. federal
income taxes are determined in accordance with the following clause (c)), plus (b) without duplication, the portion
of any liability for U.S. federal income Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other
Persons in which OpCo owns a direct or indirect equity interest) under Section 6225 or any similar provision of the
Code and any state and local Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other Persons
in which OpCo owns a direct or indirect equity interest), in each case, that is allocable to the Corporate Taxpayer
under Section 704 of the Code or otherwise attributable to the Corporate Taxpayer in accordance with the OpCo
Agreement, plus (c) the product of (i) the amount of the U.S. federal taxable income (not below zero) for such
Taxable Year (if applicable, determined in accordance with a Determination or Amended Schedule) reported on the
Corporate Taxpayer’s IRS Form 1120 (or any successor form) and (ii) the Blended S/L Rate.
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common
control with such Person, where for purposes of this definition, “control” means the possession, directly or
indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting
securities, its capacity as a sole or managing member or otherwise. For purposes of this Agreement, no Rights
Holder shall be considered to be an Affiliate of the Corporate Taxpayer, OpCo, or any Subsidiaries thereof.
“Agreed Rate” means a per annum rate of SOFR plus 100 basis points.
“Agreement” has the meaning set forth in the Preamble.
“Amended Schedule” has the meaning set forth in Section 2.4(b).
“Attributable” means the portion of any Tax Attribute of the Corporate Taxpayer that is “Attributable” to
any present or former Rights Holder, as the case may be, determined under the following principles:
(i) any Blocker Attributes (and any Basis Adjustments in respect thereof) shall be determined separately with
respect to each Blocker based on the Blocker Attributes attributable to such Blocker at the time of the Blocker
Reorganization, and are Attributable to the Blocker indirect Shareholders of each Blocker to which such Blocker
Attributes relate in proportion to each Blocker Shareholder’s interest in such Blocker prior to the Blocker
Reorganization;
(ii) any Blocker Transferred Basis (and any Basis Adjustments in respect thereof) shall be determined
separately with respect to each Blocker based on the Blocker Transferred Basis (and related Basis Adjustments)
associated with the applicable Blocker units that were acquired directly or indirectly by the Corporate Taxpayer as a
result of the participation of such Blocker in the Blocker Reorganization, and shall be Attributable to the Blocker
Shareholders of each Blocker to which such Blocker Transferred Basis (and related Basis Adjustments) relates in
proportion to each Blocker Shareholder’s interest in such Blocker prior to the Blocker Reorganization;
(iii) any IPO Basis (and any Basis Adjustments in respect thereof) shall be determined separately with respect
to each Rights Holder, as applicable, in an amount equal to the product of (A) the total IPO Basis and (B) the IPO
Basis Percentage of the Units previously held by such Rights Holder and transferred (whether pursuant to the
Blocker Reorganization or an Exchange) to PubCo, as applicable;
(iv) any Exchange Transferred Basis (and any Basis Adjustments in respect thereof) shall be determined
separately with respect to each Exchanging Holder and is Attributable to each Exchanging Holder in an amount
equal to the total Exchange Transferred Basis relating to such Units delivered to the Corporate Taxpayer by such
Exchanging Holder in the Exchange;
(v) any Basis Adjustments shall be determined separately with respect to each Exchanging Holder and the
Blocker Shareholder and are Attributable to each Exchanging Holder in an amount equal to the total Basis
Adjustments relating to such Units delivered to the Corporate Taxpayer by such Exchanging Holder in the Exchange
or the Blocker Reorganization; and
(vi) any deduction to the Corporate Taxpayer with respect to a Taxable Year in respect of Imputed Interest is
Attributable to the Person that is required to include the Imputed Interest in income (without regard to whether such
person is actually subject to Tax thereon).
“Basis Adjustment” means the adjustment to the Tax basis of a Reference Asset under Sections 732, 734(b),
707(a), 737 and/or 1012 of the Code and the Treasury Regulations promulgated thereunder (in situations where, as a
result of one or more Exchanges, OpCo becomes an entity that is disregarded as separate from its owner for U.S.
federal income tax purposes) or under Sections 734(b), 743(b) and 755 of the Code and the Treasury Regulations
promulgated thereunder (in situations where, following an Exchange, OpCo remains in existence as an entity
classified as a partnership for U.S. federal income tax purposes) and, in each case, comparable sections of state and
local tax laws, as a result of (i) an Exchange, (ii) the payments made pursuant to this Agreement in respect of such
Exchange and (iii) the payments made pursuant to this Agreement in respect of the Blocker Reorganization. For the
avoidance of doubt, the amount of any Basis Adjustment resulting from an Exchange shall be determined without
regard to any Pre-Exchange Transfer and as if any such Pre-Exchange Transfer had not occurred. The amount of any
Basis Adjustment shall be determined using the Market Value of the Units that are the subject of the Exchange at the
time of the Exchange.
“Basis Schedule” has the meaning set forth in Section 2.2.
“Blended S/L Rate” means, with respect to any Taxable Year, the sum of the apportionment-weighted
effective rates of tax imposed on the aggregate net income of the Corporate Taxpayer in each U.S. state and local
jurisdiction in which the Corporate Taxpayer files Tax Returns for such Taxable Year, with the maximum effective
rate in any state or local jurisdiction being equal to the product of (i) the apportionment factor on the income or
franchise Tax Return in such jurisdiction for such Taxable Year and (ii) the maximum applicable corporate income
tax rate in effect in such jurisdiction in such Taxable Year. As an illustration of the calculation of Blended S/L Rate
for a Taxable Year, if the Corporate Taxpayer solely files Tax Returns in State 1 and State 2 in a Taxable Year, the
maximum applicable corporate income tax rates in effect in such states in such Taxable Year are 6.5% and 5.5%,
respectively, and the apportionment factors for such states in such Taxable Year are 60% and 40%, respectively,
then the Blended S/L Rate for such Taxable Year is equal to 6.10% (i.e., the sum of (a) 6.5% multiplied by 60%,
plus (b) 5.5% multiplied by 40%).
“Blockers” means collectively, the Olympus Blocker and the LFM Blocker.
“Blocker 743(b) Adjustment” means the adjustments, existing as of the close of the IPO Date (as determined
based on the interim closing of the books of OpCo as of the close of the IPO Date), to the Tax basis of the Reference
Assets under Section 743(b) of the Code that are attributable to the Units held by each Blocker.
“Blocker Attributes” means, without duplication, the net operating losses, capital losses, research and
development credits, foreign tax credits, excess Section 163(j) limitation carryforwards, charitable deductions and
any Tax attributes (other than capitalized debt issuance costs) that the Corporate Taxpayer is entitled to utilize as a
result of the Blocker Reorganization that relate to periods (or portions thereof) prior to the Blocker Reorganization;
provided however, that in order to determine whether any such Tax attribute is a Blocker Attribute, the Taxable Year
of the Corporate Taxpayer that includes the effective date of the Blocker Reorganization shall be deemed to end as
of the close of such effective date.
“Blocker Transferred Basis” means the Tax basis (including any Blocker 743(b) Adjustments) of any
Reference Asset that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code
for U.S. federal income Tax purposes or (iii) otherwise reportable as amortizable or depreciable on IRS Form 4562
for U.S. federal income Tax purposes relating to the units transferred from each Blocker to the Corporate Taxpayer
and determined as of the time of the Blocker Reorganization; provided that, any Tax basis included in the IPO Basis
and Attributable to the applicable Blocker Shareholders (with respect to Units acquired in the Blocker
Reorganization) shall be excluded from the determination of the Blocker Transferred Basis to the extent necessary to
avoid double counting.
“Board” means the Board of Directors of the Corporate Taxpayer.
“Business Day” means any day except a Saturday, a Sunday and any other day on which commercial banks
are required or authorized to close in the State of New York.
“Change of Control” means the occurrence of any one of the following events:
(i) a merger, reorganization, consolidation or similar form of business transaction (or series of related
transactions) directly involving the Corporate Taxpayer or indirectly involving the Corporate Taxpayer through one
or more intermediaries unless, immediately following such transaction (or series of related transactions), more than
50% of the voting power of the then outstanding voting stock or other equity securities of the Corporate Taxpayer
resulting from the consummation of such transaction (including any parent or ultimate parent corporation of such
Person that as a result of such transaction owns directly or indirectly the Corporate Taxpayer and all or substantially
all of the Corporate Taxpayer’s assets) is held by the then-existing equityholders of the Corporate Taxpayer
(determined immediately prior to such transaction and related transactions);
(ii) a transaction (or series of related transactions) in which the Corporate Taxpayer, directly or indirectly,
sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its direct or indirect assets
to another Person other than an Affiliate;
(iii) a transaction (or series of related transactions) in which there is an acquisition of control of the Corporate
Taxpayer by a Person or group of Persons (excluding (x) any “person” or “group” who, on IPO Date, is the
beneficial owner of securities of the Corporate Taxpayer representing more than 50% of the combined voting power
of the Corporate Taxpayer’s then outstanding voting securities or (y) any “group” formed after the IPO that includes
members who collectively, as of the IPO Date, are the beneficial owners of securities of the Corporate Taxpayer
representing more than 50% of the combined voting power of the Corporate Taxpayer’s then outstanding voting
securities). For purposes of this definition, the term “control” shall mean the possession, directly or indirectly, of the
power to either (A) vote more than 50% of the securities having ordinary voting power for the election of directors
(or comparable positions in the case of partnerships and limited liability companies), or (B) direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise (for the avoidance of
doubt, consent rights do not constitute “control” for the purpose of this definition); or
(iv) the liquidation or dissolution of the Corporate Taxpayer.
Notwithstanding the foregoing, a “Change of Control” shall be deemed not to have occurred (a) by virtue of
the consummation of any transaction or series of integrated transactions immediately following which the record
holders of the shares of the Corporate Taxpayer immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in, and voting control over, and own substantially
all of the shares of, an entity which owns, directly or indirectly, all or substantially all of the assets of the Corporate
Taxpayer immediately following such transaction or series of transactions; or (b) if the Rights Holder Representative
agrees in writing to elect for a “Change of Control” to not have occurred upon the occurrence of any transaction,
series of related transactions or any other occurrence that may otherwise qualify as a “Change of Control”.
“Class A Shares” means shares of Class A Common Stock of PubCo, par value $0.0001 per share.
“Class B Shares” means shares of Class B Common Stock of PubCo, par value $0.0001 per share.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Stock” means Class A Shares and Class B Shares.
“Company” has the meaning set forth in the Preamble.
“Corporate Taxpayer” means PubCo and any company that is a member of any consolidated Tax Return of
which PubCo (or any of its successors) is a member, where appropriate.
“Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount of Realized Tax
Benefits for all Taxable Years of the Corporate Taxpayer, up to and including such Taxable Year, reduced, but not
below zero, by the cumulative amount of Realized Tax Detriment for the same period. The Realized Tax Benefit and
Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedules
or Amended Schedules, if any, in existence at the time of such determination; provided, that, for the avoidance of
doubt, the computation of the Cumulative Net Realized Tax Benefit shall be adjusted to reflect any applicable
Determination with respect to any Realized Tax Benefits and/or Realized Tax Detriments.
“Default Rate” means a per annum rate of SOFR plus 500 basis points.
“Determination” shall have the meaning ascribed to such term in Code Section 1313(a) or a similar
applicable provision of state, or local income tax law or any other event (including the execution of IRS Form 870-
AD) that finally and conclusively establishes the amount of any liability for tax.
“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the
Early Termination Payment.
“Early Termination Event” means any event or circumstance (or group of events or circumstances) giving
rise to an Early Termination Payment pursuant to Section 4.1(b), (c) or (d).
“Early Termination Notice” has the meaning set forth in Section 4.1(b).
“Early Termination Payment” has the meaning set forth in Section 4.2(b).
“Early Termination Rate” means the lesser of (i) 6.5% per annum, compounded annually, and (ii) a per
annum rate of SOFR plus 100 basis points.
“Early Termination Schedule” has the meaning set forth in Section 4.1(b).
“Exchange” has the meaning set forth in the Recitals of this Agreement.
“Exchange Agreement” means that certain Exchange Agreement, dated the date hereof, by and among the
Corporate Taxpayer, OpCo and Investment Holdings.
“Exchange Transferred Basis” means the Tax basis of any Reference Asset that is (i) amortizable under
Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii) otherwise reportable as amortizable
or depreciable on IRS Form 4562 for U.S. federal income Tax purposes relating to the Units transferred upon an
Exchange and determined as of the time of such Exchange; provided that, any Tax basis included in the IPO Basis
and Attributable to Exchanging Holders (with respect to the Units subject to the Exchange Agreement) shall be
excluded from the determination of the Exchange Transferred Basis to the extent necessary to avoid double
counting.
“Exchange Date” means the date of any Exchange.
“Exchanging Holder” means any Rights Holder that holds and/or has held Units that are subject to the terms
of the Exchange Agreement.
“Expert” has the meaning set forth in Section 7.10.
“Hypothetical Tax Liability” means, with respect to any Taxable Year, the sum, without duplication, of
(A)(i) the hypothetical liability of the Corporate Taxpayer for U.S. federal income Taxes and (ii) the portion of any
liability for U.S. federal income Taxes imposed directly on OpCo (or OpCo’s Subsidiaries or other Persons in which
OpCo owns a direct or indirect equity interest) under Section 6225 or any similar provision of the Code and any
state and local Taxes imposed directly on OpCo (or OpCo’s applicable Subsidiaries or other Persons in which OpCo
owns a direct or indirect equity interest), and (B) the product of (i) the U.S. federal taxable income for such Taxable
Year reported on the Corporate Taxpayer’s IRS Form 1120 (or any successor form) and (ii) the Blended S/L Rate, in
each case, that is allocable to the Corporate Taxpayer under Section 704 of the Code or otherwise attributable to the
Corporate Taxpayer in accordance with the OpCo Agreement, in each case, calculated in accordance with the
definition of Actual Tax Liability using the same methods, elections, conventions, and similar practices used on the
relevant Tax Return, but (a) using the Non-Unit Transferred Basis as reflected on the Basis Schedule including
amendments thereto for the Taxable Year, (b) without taking into account Blocker Attributes, if any, (c) using the
Non-Blocker Transferred Basis as reflected on the Basis Schedule, including amendments thereto for the Taxable
Year, (d) using the Non-IPO Basis as reflected on the Basis Schedule including amendments thereto for the Taxable
Year, (e) using the Non-Exchange Transferred Basis as reflected on the Basis Schedule including amendments
thereto for the Taxable Year, (f) using the Non-Stepped Up Tax Basis as reflected on the Basis Schedule including
amendments thereto for the Taxable Year and (g) excluding any deduction attributable to Imputed Interest
attributable to any payment made under this Agreement for the Taxable Year. For the avoidance of doubt,
Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any Tax
item (or portions thereof) that is attributable to a Tax Attribute as applicable. For the avoidance of doubt, the basis of
the Reference Assets in the aggregate for purposes of determining the Hypothetical Tax Liability can never be less
than zero.
“Imputed Interest” means any interest imputed under Sections 1272, 1274, or 483 or other provision of the
Code and any similar provision of state and local Tax law with respect to the Corporate Taxpayer’s payment
obligations in respect of the Corporate Taxpayer under this Agreement.
“Independent Directors” means the members of the Board of Directors of the Corporate Taxpayer who are
“independent” under the standards of the principal U.S. securities exchange on which the Common Stock is traded
or quoted.
“Intended Tax Treatment” has the meaning set forth in Section 3.7.
“IPO” means the initial public offering of Common Stock pursuant to the registration statement on Form S-1
of PubCo.
“IPO Basis” means the Tax basis of any Reference Asset at the time of the IPO that is (i) amortizable under
Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii) otherwise reported as amortizable or
depreciable on IRS Form 4562 for U.S. federal income Tax purposes, in each case of clauses (i) through (iii), to the
extent allocable to the Corporate Taxpayer (for the avoidance of doubt, including as a result of Section 704(c) of the
Code) as a result of its acquisition of IPO Units.
“IPO Basis Payment” means a Tax Benefit Payment attributable to IPO Basis.
“IPO Basis Percentage” means, in respect of a Rights Holder, the percentage, the numerator of which is the
number of Units (assuming that the OpCo has recapitalized into common units immediately prior to the IPO) that are
transferred (either pursuant to the Blocker Reorganization or an Exchange) by such Rights Holder to PubCo and the
denominator of which is the total Units held by Rights Holders that would have been outstanding (assuming that the
OpCo has recapitalized into common units immediately prior to the IPO) immediately prior to the IPO.
“IPO Date” means the closing date of the IPO.
“IPO Exchange” has the meaning set forth in the Recitals of this Agreement.
“IPO Units” means the Units acquired (directly or indirectly) by PubCo with the net proceeds from the IPO
(excluding any Units acquired in an Exchange).
“IRS” means the U.S. Internal Revenue Service.
“LFM Blocker” means Accelevation Roll III-B Blocker, LLC, a Delaware limited liability company.
“LFM Blocker Shareholder” means LFM Capital Partners III-B, L.P. and any successors or assigns thereof.
“Market Value” means the closing price of the Common Stock on the applicable Exchange Date on the
national securities exchange or interdealer quotation system on which such Common Stock is then traded or listed,
as reported by the Wall Street Journal; provided, that if the closing price is not reported by the Wall Street Journal
for the applicable Exchange Date, then the Market Value shall mean the closing price of the Common Stock on the
Business Day immediately preceding such Exchange Date on the national securities exchange or interdealer
quotation system on which such Common Stock is then traded or listed, as reported by the Wall Street Journal;
provided, further, that if the Common Stock is not then listed on a national securities exchange or interdealer
quotation system, the Market Value shall mean the cash consideration paid for Common Stock, or the fair market
value of the other property delivered for Common Stock, as determined by the Board in good faith.
“Net Tax Benefit” has the meaning set forth in Section 3.1(a)(ii).
“Non-Blocker Transferred Basis” means, with respect to any Reference Asset at the time of the Blocker
Reorganization that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code,
(iii) otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax purposes, the
Tax basis (including any Blocker 743(b) Adjustments) that such Reference Asset would have had if the Blocker
Transferred Basis at the time of the Blocker Reorganization was equal to zero.
“Non-Exchange Transferred Basis” means with respect to any Reference Asset at the time of an Exchange
that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of the Code or (iii)
otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax purposes, the Tax
basis that such Reference Asset would have had if the Exchange Transferred Basis at the time of the IPO or
Exchange (as applicable) was equal to zero.
“Non-IPO Basis” means, with respect to any Reference Asset at the time of the OpCo Exchange or IPO
Exchange, as applicable, that is (i) amortizable under Section 197 of the Code, (ii) depreciable under Section 168 of
the Code or (iii) otherwise reported as amortizable or depreciable on IRS Form 4562 for U.S. federal income Tax
purposes, the Tax basis that such Reference Asset would have had if the IPO Basis of such Reference Asset at the
time of the IPO was equal to zero.
“Non-Stepped Up Tax Basis” means, with respect to any Reference Asset at any time, the Tax basis that
such asset would have had at such time if no Basis Adjustments had been made.
“Objection Notice” has the meaning set forth in Section 2.4(a).
“Olympus Blocker” means Olympus Accelevation Blocker LLC, a Delaware limited liability company.
“Olympus Blocker Shareholder” means Olympus Growth Fund VIII Parallel, L.P. and any successors or
assigns thereof.
“OpCo” has the meaning set forth in the Preamble.
“OpCo Agreement” means, with respect to OpCo, the Limited Liability Company Agreement of OpCo,
dated as of the date hereof, as such agreement may be further amended, restated, supplemented and/or otherwise
modified from time to time.
“OpCo Exchange” has the meaning set forth in the Recitals of this Agreement.
“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.
“Permitted Assignment” has the meaning set forth in Section 7.6(a).
“Person” means any natural person, sole proprietorship, partnership, trust, unincorporated association,
corporation, limited liability company, entity or governmental entity.
“Pre-Exchange Transfer” means any transfer (including upon the death of a prior holder) of, or distribution
in respect of, one or more Units (or interests in any applicable Subsidiaries of OpCo or other Persons in which OpCo
owns a direct or indirect equity interest) (i) that occurs prior to an Exchange of such Units and (ii) to which Sections
734(b) or 743(b) of the Code applies.
“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over
the Actual Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an
audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in
determining the Realized Tax Benefit unless and until there has been a Determination.
“Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the Actual Tax Liability over the
Hypothetical Tax Liability. If all or a portion of the Actual Tax Liability for the Taxable Year arises as a result of an
audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in
determining the Realized Tax Benefit unless and until there has been a Determination.
“Reconciliation Dispute” has the meaning set forth in Section 7.10.
“Reconciliation Procedures” has the meaning set forth in Section 2.4(a).
“Reference Asset” means an asset that is held by OpCo, or by any of its direct or indirect Subsidiaries treated
as a partnership or disregarded entity (but only if such indirect Subsidiaries are held only through Subsidiaries
treated as partnerships or disregarded entities) for purposes of the applicable Tax, at the time of the IPO, or an
Exchange, as relevant. A Reference Asset also includes any asset that is “substituted basis property” under Section
7701(a)(42) of the Code with respect to a Reference Asset.
“Rights Holder(s)” has the meaning set forth in the Preamble.
“Rights Holder Representative” means, initially, Olympus Partners Investors VIII, LLC (“Olympus”) or its
designated Affiliate unless Olympus or such designated Affiliate resigns as the Rights Holder Representative by
delivering written notice to the Corporate Taxpayer, in which case the Rights Holder Representative shall be the
Person appointed from time to time by a majority of the Rights Holders in accordance with their right to receive
Early Termination Payments hereunder.
“Schedule” means any of the following: (i) a Blocker Attribute Schedule, (ii) a Basis Schedule, (iii) a Tax
Benefit Schedule and (iv) an Early Termination Schedule, and, in each case, any amendments thereto.
“Section 734(b) Exchange” means any Exchange that results in a Basis Adjustment under Section 734(b) of
the Code.
“SOFR” means for each month (or portion thereof), the forward looking term rate based on the secured
overnight financing rate administered by the Federal Reserve Bank of New York (or a successor administrator of the
secured overnight financing rate) for a one-month period, on the date two days prior to the first day of such month,
as published on an information service as selected by the Rights Holder Representative from time to time in its
reasonable discretion, provided that if (i) adequate and reasonable means do not exist for ascertaining SOFR and
such circumstances are unlikely to be temporary or (ii) the supervisor for the administrator of SOFR or a
governmental authority having jurisdiction over the Rights Holder Representative or any member of the Corporate
Taxpayer has made a public statement identifying a specific date after which SOFR shall no longer be used for
determining interest rates for loans, then the Corporate Taxpayer or the Rights Holder Representative shall endeavor
to establish an alternate rate of interest to SOFR that gives due consideration to the then prevailing market
convention for determining a comparable rate of interest in the United States at such time, and shall enter into an
amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this
Agreement as may be applicable, provided further that the alternate rate of interest shall be no less than the interest
rate equal to SOFR of the prior month.
“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company or
other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled
directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.
“Tax Attributes” has the meaning set forth in the Recitals of this Agreement.
“Tax Benefit Payment” has the meaning set forth in Section 3.1(a)(i).
“Tax Benefit Schedule” has the meaning set forth in Section 2.2.
“Tax Claim” has the meaning set forth in Section 6.1(b).
“Tax Return” means any return, declaration, report, information returns, claims for refund, disclosures or
similar statement filed or required to be filed with respect to or in connection with taxes (including any related or
supporting schedules, attachments, statements or information filed or required to be filed with respect thereto),
including any amendments thereof and declarations of estimated tax.
“Taxable Year” means a taxable year of the Corporate Taxpayer as defined in Section 441(b) of the Code or
comparable section of U.S. state, or local income tax law (and which may include a period of more or less than
twelve (12) months for which a Tax Return is made), in each case, that ends on or after the IPO Date.
“Taxes” means any and all U.S. federal, state, local and foreign taxes, assessments or similar charges that are
based on or measured with respect to net income or profits, and any interest related to such Tax.
“Taxing Authority” means any domestic, federal, national, state, county or municipal or other local
government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body, in each
case, exercising any taxing authority or any other authority or jurisdiction of any kind in relation to tax matters.
“Valuation Assumptions” means, as of an Early Termination Date, the assumptions that in each Taxable
Year ending on or after such Early Termination Date:
(i) the Corporate Taxpayer will have taxable income sufficient to fully utilize the Tax items arising from the
Tax Attributes (other than any items addressed in clause (ii) below) during such Taxable Year or future Taxable
Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future
payments made under this Agreement that would be paid in accordance with the Valuation Assumptions) in which
such deductions would become available;
(ii) any Blocker Attributes or loss carryovers generated by deductions arising from any Tax Attributes that are
available as of the date of the Early Termination Date will be used by the Corporate Taxpayer on a pro rata basis
from the date of such Early Termination Date through the earlier of (x) the scheduled expiration date under
applicable Tax law of such Blocker Attributes or loss carryovers or (y) the fifth (5th) anniversary of the Early
Termination Date;
(iii) the U.S. federal, state and local income Tax rates that will be in effect for each such Taxable Year will be
those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Date
(except to the extent any change to such Tax rates for such Taxable Year have already been enacted into law) and
the Blended S/L Rate will be calculated based on such rates and the apportionment factor applicable in the prior
Taxable Year;
(iv) any non-amortizable assets (other than equity interest in any Subsidiary that is treated as an association
taxable as a corporation for U.S. federal income Tax purposes) will be disposed of on the fifteenth (15th)
anniversary of the applicable Exchange or deemed exchange pursuant to clause (v) (in the case of Basis
Adjustments) and any cash equivalents will be disposed of twelve (12) months following the Early Termination
Date; provided, that in the event of a Change of Control, such non-amortizable assets shall be deemed disposed of at
the time of sale (if applicable) of the relevant asset in the Change of Control (if earlier than such fifteenth (15th)
anniversary) (other than equity interest in any subsidiary that is treated as an association taxable as a corporation for
U.S. federal income Tax purposes);
(v) if, at the Early Termination Date, there are Units of OpCo that have not been Exchanged, then each such
unit, shall be deemed Exchanged for the Market Value of such Unit;
(vi) with respect to Taxable Years where the Payment Date has passed, any unpaid Tax Benefit Payments and
any applicable interest will be paid on the Early Termination Date at the Default Rate; and
(vii) each Tax Benefit Payment for the relevant Taxable Year will be due and payable and satisfied on the due
date (without extensions) under applicable law as of the Early Termination Date for filing of IRS Form 1120 (or any
successor form) of the Corporate Taxpayer.
ARTICLE II
DETERMINATION OF REALIZED TAX BENEFIT
Section 2.1 754 Election. The Corporate Taxpayer shall cause OpCo and each of its applicable direct or
indirect Subsidiaries that is treated as a partnership for U.S. federal income Tax purposes to have in effect an
election under Section 754 of the Code (or any similar provisions of applicable state, local or non-U.S. tax law) for
each Taxable Year. The Corporate Taxpayer shall use commercially reasonable efforts to cause each Person in
which OpCo owns a direct or indirect equity interest (other than a Subsidiary) that is so treated as a partnership for
U.S. federal income Tax purposes to have in effect such an election for each Taxable Year.
Section 2.2 Basis Schedule. Within ninety (90) calendar days after the due date (including extensions) of IRS
Form 1120 (or any successor form) of the Corporate Taxpayer for each relevant Taxable Year, the Corporate
Taxpayer shall deliver to the Rights Holder Representative, a schedule (a “Basis Schedule”) that shows, in
reasonable detail necessary to perform the calculations required by this Agreement, (a) the Unit Transferred Basis of
each Reference Asset, if any, (b) the Blocker Attributes, if any, (c) the Blocker Transferred Basis of each Reference
Asset, if any, (d) the IPO Basis of each Reference Asset, if any, (e) the Exchange Transferred Basis of each
Reference Asset, if any, (f) the Basis Adjustment with respect to the Reference Assets in respect of each Rights
Holder as a result of the Exchanges effected in such Taxable Year or any prior Taxable Year by such Rights Holder,
if any, (g) the Non-Stepped Up Tax Basis of the Reference Assets in respect of such Rights Holder as of each
applicable Exchange Date, if any, (h) the period (or periods) over which the Reference Assets in respect of such
Rights Holder are amortizable and/or depreciable and (i) the period (or periods) over which the Unit Transferred
Basis, the Blocker Attributes, the Blocker Transferred Basis, the IPO Basis, the Exchange Transferred Basis and
each Basis Adjustment is amortizable and/or depreciable. A Basis Schedule will become final and binding on the
parties pursuant to the procedures set forth in Section 2.4(a) and may be amended by the parties pursuant to the
procedures set forth in Section 2.4(b) (subject to the procedures set forth in Section 2.4(b)). All costs and expenses
incurred in connection with the provision and preparation of the Blocker Attribute Schedule, the Basis Schedules
and the Tax Benefit Schedules for each Rights Holder in compliance with this Agreement shall be borne by the
Corporate Taxpayer.
Section 2.3 Tax Benefit Schedule.
(a) Tax Benefit Schedule. Within ninety (90) calendar days after the due date (including extensions) of
IRS Form 1120 (or any successor form) of the Corporate Taxpayer for any Taxable Year, the Corporate Taxpayer
shall provide to the Rights Holder Representative a schedule showing, in reasonable detail, the calculation of the
Realized Tax Benefit and Tax Benefit Payment or the Realized Tax Detriment (and lack of a Tax Benefit Payment),
as applicable, Attributable to each Rights Holder for such Taxable Year (a “Tax Benefit Schedule”). Each Tax
Benefit Schedule will become final as provided in Section 2.4(a) and may be amended as provided in Section 2.4(b)
(subject to the procedures set forth in Section 2.4(b)).
(b) Applicable Principles.
(i) General. The Realized Tax Benefit (or the Realized Tax Detriment) for each Taxable Year is intended to
measure the decrease (or increase) in the actual liability for Taxes payable or economically borne by the Corporate
Taxpayer for such Taxable Year attributable to the Tax Attributes, determined using a “with and without”
methodology. Carryovers or carrybacks of any Tax item attributable to any of the Tax Attributes shall be considered
to be subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. Tax law, as
applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type, except as
otherwise provided by this Agreement. If a carryover or carryback of any Tax item includes a portion that is
attributable to any Tax Attribute and another portion that is not, such portions shall be considered to be used in
accordance with the “with and without” methodology. The Actual Tax Liability shall be calculated taking into
account the Intended Tax Treatment.
(ii) Applicable Principles of Section 734(b) Exchanges. Notwithstanding any provisions to the contrary in this
Agreement the Intended Tax Treatment shall not be required to apply to payments hereunder to an Exchanging
Holder in respect of a Section 734(b) Exchange by such Exchanging Holder. For the avoidance of doubt, payments
made under this Agreement relating to a Section 734(b) Exchange shall not be treated as resulting in a Basis
Adjustment to the extent such payments are treated as Imputed Interest. The parties intend that (A) an Exchanging
Holder that has made a Section 734(b) Exchange shall, with respect to the Basis Adjustment resulting from such
Section 734(b) Exchange or any payments hereunder in respect of such Section 734(b) Exchange, be entitled to Tax
Benefit Payments attributable to such Basis Adjustments only to the extent such Basis Adjustments are allocable to
the Corporate Taxpayer following such Section 734(b) Exchange (without taking into account any concurrent or
subsequent Exchanges) and (B) if, as a result of a subsequent Exchange, an increased portion of the Basis
Adjustments resulting from such Section 734(b) Exchange or any payments hereunder in respect of such Section
734(b) Exchange becomes allocable to the Corporate Taxpayer, then the Exchanging Holder that makes such
subsequent Exchange shall be entitled to a Tax Benefit Payment calculated in respect of such increased portion.
Section 2.4 Procedures, Amendments.
(a) Procedure. Each time the Corporate Taxpayer delivers to the Rights Holder Representative an
applicable Schedule under this Agreement, including any Amended Schedule delivered pursuant to Section 2.4(b),
any Early Termination Schedule or any amended Early Termination Schedule, the Corporate Taxpayer shall also (i)
deliver to the Rights Holder Representative supporting schedules and work papers, as determined by the Corporate
Taxpayer or as reasonably requested by the Rights Holder Representative, that provide a reasonable level of detail
regarding the data and calculations that were relevant for purposes of preparing the Schedule and (ii) allow the
Rights Holder Representative reasonable access at no cost to the appropriate representatives at the Corporate
Taxpayer in connection with a review of such Schedule. Without limiting the generality of the preceding sentence,
the Corporate Taxpayer shall ensure that any Tax Benefit Schedule or Early Termination Schedule that is delivered
to the Rights Holder Representative, along with any supporting schedules, valuation reports and work papers,
provides a reasonably detailed presentation of the calculation of the Actual Tax Liability (the “with” calculation) and
the Hypothetical Tax Liability (the “without” calculation) and identifies any assumptions or operating procedures or
principles that were used for purposes of such calculations. An applicable Schedule or amendment thereto shall
become final and binding on all parties unless the Rights Holder Representative, within thirty (30) calendar days
after receiving any Schedule or amendment thereto, provides the Corporate Taxpayer with a notice of an objection to
such Schedule or amendment thereto (“Objection Notice”) or such earlier date as the Rights Holder Representative
provides written notice to the Corporate Taxpayer that it has no objections to the Schedule. If the Corporate
Taxpayer and Rights Holder Representative, for any reason, are unable to successfully resolve the issues raised in
any Objection Notice within thirty (30) calendar days after the Rights Holder Representative gives the Corporate
Taxpayer such Objection Notice, the Corporate Taxpayer and the Rights Holder Representative shall employ the
reconciliation procedures described in Section 7.10 (the “Reconciliation Procedures”), in which case such
Schedule or Amended Schedule shall become binding in accordance with Section 7.10.
(b) Amended Schedule. The applicable Schedule for any Taxable Year may be amended from time to
time by the Corporate Taxpayer (i) in connection with a Determination affecting such Schedule, (ii) to correct
material inaccuracies in the Schedule, including those identified as a result of the receipt of additional factual
information relating to a Taxable Year after the date the Schedule was provided to the Rights Holder Representative,
(iii) to comply with an Expert’s determination under the Reconciliation Procedures, (iv) to reflect a material change
in the Realized Tax Benefit or the Realized Tax Detriment for such Taxable Year attributable to a carryback or
carryforward of a loss or other tax item to such Taxable Year or (v) to reflect a material change in the Realized Tax
Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended Tax Return filed for such
Taxable Year (any such Schedule, an “Amended Schedule”); provided, however, that an amendment under clause
(i) attributable to an audit of a Tax Return by the Corporate Taxpayer, OpCo or Subsidiary thereof shall not be made
on an Amended Schedule unless and until there has been a Determination with respect to such change. The
Corporate Taxpayer shall provide an Amended Schedule to the Rights Holder Representative within thirty (30)
calendar days of the occurrence of an event referred to in clauses (i) through (v) of the preceding sentence, and any
such Amended Schedule shall be subject to the approval procedures described in Section 2.4(a).
ARTICLE III
TAX BENEFIT PAYMENTS
Section 3.1 Payments; Timing of Payments. Within five (5) Business Days of a Tax Benefit Schedule
becoming final in accordance with Section 2.4(a) and Section 7.10, if applicable, the Corporate Taxpayer shall pay
to each Rights Holder for such Taxable Year the Tax Benefit Payment determined pursuant to Section 3.1(a) that is
Attributable to such Rights Holder. Each such Tax Benefit Payment shall be made by wire transfer of immediately
available funds to the bank account previously designated by the applicable Rights Holder to the Corporate
Taxpayer, or as otherwise agreed by the Corporate Taxpayer and such Rights Holder. For the avoidance of doubt, (a)
no Tax Benefit Payment shall be made in respect of estimated tax payments and (b) the payments provided for
pursuant to the above sentence shall be computed separately for each Rights Holder. No Rights Holder shall be
required under any circumstances to make a payment or return a payment to the Corporate Taxpayer in respect of
any portion of any Tax Benefit Payment previously paid by the Corporate Taxpayer to such Rights Holder
(including any portion of any Early Termination Payment).
(a) For purposes of this Agreement:
(i) A “Tax Benefit Payment” in respect of a Rights Holder for a Taxable Year means an amount, not less
than zero, equal to the sum of (A) the Net Tax Benefit that is Attributable to such Rights Holder and (B) the Accrued
Amount with respect thereto. For the avoidance of doubt, for Tax purposes, the Accrued Amount shall not be treated
as interest, but instead, shall be treated as additional consideration in the applicable transaction, unless otherwise
required by law.
(ii) Subject to Section 3.4, the “Net Tax Benefit” for a Taxable Year shall be an amount equal to the excess,
if any, of 85% of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year, over the total amount
of payments previously made under the first sentence of Section 3.1(a) (excluding payments attributable to Accrued
Amounts); provided, that if there is no such excess (or if a deficit exists), no Rights Holder shall be required to make
a payment (or return a payment) to the Corporate Taxpayer in respect of any portion of any Tax Benefit Payment
previously made by the Corporate Taxpayer to such Rights Holder.
(iii) The “Accrued Amount” with respect to any Net Tax Benefit shall equal an amount determined in the
same manner as interest on the Net Tax Benefit calculated at the Agreed Rate from the due date (without extensions)
for filing IRS Form 1120 (or any successor form) of the Corporate Taxpayer with respect to Taxes for such Taxable
Year until the payment date under Section 3.1(a).
(b) PubCo, OpCo and the Rights Holders hereby acknowledge and agree that, as of the date of the
Agreement and as of the date of any future Exchange that may be subject to this Agreement, the aggregate value of
the Tax Benefit Payments cannot be reasonably ascertained for U.S. federal income and other applicable tax
purposes. Notwithstanding anything herein to the contrary, unless otherwise specified by a Rights Holder in a
written notice to PubCo, the aggregate Tax Benefit Payments herein (other than amounts accounted for as interest
under the Code) with respect to any Exchange by a Rights Holder, shall not exceed 100% of the fair market value of
the consideration received (whether as a cash payment, as Class A shares or as other consideration, but excluding,
for the avoidance of doubt, the fair market value of the Tax Benefit Payments hereunder) in such Exchange or other
applicable transaction (the “Exchange Consideration”) such that the stated maximum selling price (within the
meaning of Treasury Regulation 15A.453-1(c)(2)) is equal to 200% of the Exchange Consideration.
Section 3.2 No Duplicative Payments. It is intended that the provisions of this Agreement will not result in
duplicative payment of any amount (including interest) required under this Agreement. It is also intended that the
provisions of this Agreement will result in 85% of the Cumulative Net Realized Tax Benefits of the Corporate
Taxpayer, and the Accrued Amounts thereon, being paid to the Rights Holders pursuant to this Agreement. The
provisions of this Agreement shall be construed in the appropriate manner so that these fundamental results are
achieved.
Section 3.3 Payments in United States Dollars. All payments to be made under this Agreement shall be
made in United States dollars.
Section 3.4 Pro Rata Payments. Notwithstanding anything in Section 3.1 to the contrary, to the extent that
the aggregate potential Realized Tax Benefit of the Corporate Taxpayer with respect to the Tax Attributes is limited
in a particular Taxable Year because the Corporate Taxpayer does not have sufficient taxable income, the Net Tax
Benefit for that Taxable Year shall be allocated among all parties then-eligible to receive Tax Benefit Payments
under this Agreement in proportion to the amounts of Net Tax Benefit for that Taxable Year, respectively, that
would have been Attributable to each Rights Holder if the Corporate Taxpayer had sufficient taxable income so that
there were no such limitation.
Section 3.5 Payment Ordering. If for any reason the Corporate Taxpayer does not fully satisfy its payment
obligations to make all Tax Benefit Payments due under this Agreement in respect of a particular Taxable Year, then
the Corporate Taxpayer and the Rights Holders agree that (a) Tax Benefit Payments for such Taxable Year shall be
allocated to all parties eligible to receive Tax Benefit Payments under this Agreement in such Taxable Year in
proportion to the amounts of Tax Benefit Payments, respectively, that would have been made to each Rights Holder
if the Corporate Taxpayer had sufficient cash available to make such Tax Benefit Payments and (b) no Tax Benefit
Payments shall be made in respect of any Taxable Year until all Tax Benefit Payments to all Rights Holders in
respect of all prior Taxable Years have been made in full.
Section 3.6 IPO Basis Exchange. Notwithstanding anything to the contrary herein, any and all Tax Benefit
Payments that would otherwise be made pursuant to this Agreement to the Exchanging Holder with respect to any
IPO Basis shall be held in cash by the Corporate Taxpayer for the benefit of the Exchanging Holder (without any
interest thereon) (such withheld amount, the “Accrued Payment”). Promptly following the time the Exchanging
Holder has exchanged Units, such Accrued Payment Attributable to Exchanging Holder with respect to the
exchanged Units shall be paid by the Corporate Taxpayer to the Exchanging Holder.
Section 3.7 Intended Tax Treatment. The parties hereto agree that it is their intention, for U.S. federal (and
applicable state and local) income tax purposes, that:
(i) A Tax Benefit Payment paid to a Rights Holder that is an Exchanging Holder in respect of a Unit that is
subject to the Exchange Agreement shall be treated as in part additional purchase price for such Unit and in part
Imputed Interest;
(ii) A Tax Benefit Payment (other than Imputed Interest thereon) paid to PubCo Holdings (on behalf of any
Blocker Shareholder) in respect of a unit that was acquired by PubCo pursuant to the Blocker Reorganization shall
be treated as nonqualifying property or money for purposes of Section 351 and/or Section 356 of the Code received
in the Blocker Reorganization;
(iii) each Exchange (including the OpCo Exchange or IPO Exchange) shall give rise to Basis Adjustments;
(iv) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to the Exchange Transferred
Basis, Basis Adjustments or IPO Basis (with respect to an IPO Basis Payment received as a result of an Exchange)
shall be treated as subsequent upward purchase price adjustments with respect to the Units exchanged in the
applicable Exchange that have the effect of creating additional Basis Adjustments to Reference Assets in the year of
payment;
(v) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to the Blocker Transferred
Basis or Blocker Attributes or IPO Basis (with respect to an IPO Basis Payment received in respect of the Blocker
Reorganization) shall be treated as having the effect of creating additional Basis Adjustments to the Reference
Assets in the year of payment; and
(vi) the portion of the Tax Benefit Payment that must be accounted for as Imputed Interest shall be deductible
by the Corporate Taxpayer (collectively, the “Intended Tax Treatment”).
ARTICLE IV
TERMINATION
Section 4.1 Termination of Agreement; Elective Early Termination; Automatic Early Termination.
(a) In General. This Agreement shall terminate at the time that all Tax Benefit Payments have been
made to the Rights Holders under this Agreement.
(b) Elective Early Termination. Notwithstanding Section 4.1(a), with the written approval of a majority
of the Independent Directors, the Corporate Taxpayer may terminate this Agreement by paying to the Rights
Holders the Early Termination Payment together with the other amounts required by this paragraph. If the Corporate
Taxpayer chooses to exercise its right of early termination pursuant to this Section 4.1(b), the Corporate Taxpayer
shall deliver to the Rights Holder Representative irrevocable written notice of such decision to exercise such right
(“Early Termination Notice”) and a schedule (the “Early Termination Schedule”) showing in reasonable detail
the calculation of the Early Termination Payment. The Early Termination Schedule shall become final and binding
on all parties in accordance with the procedures set forth Section 2.4(a). Upon finalization of the Early Termination
Schedule, the Corporate Taxpayer shall pay to each Rights Holder at the time set forth in Section 4.2, such Rights
Holder’s Attributable portion of (1) the Early Termination Payment, (2) the Tax Benefit Payment due and payable
but unpaid as of the date of the Early Termination Notice and (3) the Tax Benefit Payment due for a Taxable Year
ending prior to, with or including the date of the Early Termination Notice (except to the extent that such amount is
included in the Early Termination Payment).
(c) Acceleration Upon Material Breach of this Agreement. Subject to Section 5.2, in the event that the
Corporate Taxpayer breaches any of its material obligations under this Agreement, whether as a result of a failure to
make a payment when due, failure to honor any other material obligations required hereunder or by operation of law
as a result of the rejection of this Agreement in a case commenced under bankruptcy laws or otherwise, then all
obligations hereunder shall be accelerated, the Corporate Taxpayer shall be deemed to have delivered an Early
Termination Notice on the first date of such breach and the Corporate Taxpayer shall pay to the Rights Holders at
the time specified in Section 4.2, such Rights Holder’s Attributable portion of (1) the Early Termination Payment,
(2) any Tax Benefit Payment that is due and payable but unpaid as of such date and (3) any Tax Benefit Payment
due for the Taxable Year ending prior to, with or including such date (except to the extent that such amount is
included in the Early Termination Payment). The parties agree that the failure to make any payment due pursuant to
this Agreement within three (3) months of the date such payment is due shall be deemed to be a breach of a material
obligation under this Agreement for all purposes of this Agreement.
(d) Acceleration Upon Change of Control. In the event of a Change of Control, all obligations
hereunder shall be accelerated. In such event, the Corporate Taxpayer shall be deemed to have delivered an Early
Termination Notice on the date of such Change of Control and the Corporate Taxpayer shall pay to the Rights
Holders at the time specified in Section 4.2 (1) the Early Termination Payment, (2) any Tax Benefit Payment that is
due and payable but unpaid as of such date and (3) any Tax Benefit Payment due for the Taxable Year ending prior
to, with or including such date (except to the extent that such amount is included in the Early Termination Payment).
The Corporate Taxpayer shall use its reasonable best efforts to provide to the Rights Holder Representative an Early
Termination Schedule showing in reasonable detail the calculation of the Early Termination Payment with respect to
an expected Change of Control as far in advance as is reasonably practicable of such Change of Control (but no
more than thirty (30) Business Days in advance) so as to enable the calculation of the Early Termination Payment to
be finalized pursuant to Section 2.4(a) prior to the date of the effective date of the Change of Control.
Notwithstanding the foregoing, where the parties anticipate a Change of Control but are not certain of the date on
which such Change of Control will occur, the Corporate Taxpayer and the Rights Holder Representative may agree
to base the calculations contemplated by this Section 4.1(d) on a date other than the closing date of the Change of
Control.
(e) For the avoidance of doubt, this Section 4.1 shall not prevent the Corporate Taxpayer and the
Rights Holder Representative from negotiating a termination of the Rights Holders’ rights under this Agreement in
exchange for a payment that is different than the Early Termination Payment and which is binding on all Rights
Holders.
Section 4.2 Payment upon Early Termination Event.
(a) Any amount required to be paid pursuant to Section 4.1(b) or Section 4.1(c) shall be paid within
five (5) Business Days after the corresponding Early Termination Schedule is finalized pursuant to Section 2.4. Any
amount required to be paid pursuant to Section 4.1(d) shall be paid on the date of the closing of the Change of
Control. All such payments shall be made by wire transfer of immediately available funds to a bank account
designated by the Rights Holders, or as otherwise agreed by the Corporate Taxpayer and the Rights Holder
Representative.
(b) The “Early Termination Payment” with respect to an Early Termination Event shall equal the
present value as of the corresponding Early Termination Date, discounted at the Early Termination Rate as of such
date, of all Tax Benefit Payments that would be required to be paid by the Corporate Taxpayer to the Rights Holders
beginning from the Early Termination Date, calculated by applying the Valuation Assumptions.
ARTICLE V
PAYMENT MECHANICS AND COMPLIANCE WITH INDEBTEDNESS
Section 5.1 Late Payments. The amount of all or any portion of any Tax Benefit Payment or Early
Termination Payment (or other payment pursuant to Section 4.1 or Section 4.2) not made by the Corporate Taxpayer
to the Rights Holders when due under the terms of this Agreement (other than pursuant to Section 5.2) shall accrue
interest at the Default Rate commencing from the date on which such payment was due and payable.
Section 5.2 Compliance with Indebtedness. Notwithstanding anything to the contrary herein, if, at the time
any amounts become due and payable hereunder, the Corporate Taxpayer is not permitted, pursuant to the terms of
the Corporate Taxpayer’s debt financing arrangements, to pay such amounts, or the Corporate Taxpayer’s
Subsidiaries are not permitted, pursuant to the terms of the Corporate Taxpayer’s (or the applicable Subsidiary’s)
debt financing arrangements, to make dividends, loans or other transfers to the Corporate Taxpayer to allow the
Corporate Taxpayer to pay such amounts, then the Corporate Taxpayer shall by notice to the Rights Holder
Representative be permitted to defer the payment of such amounts to the minimum extent necessary until each
condition rendering the payment of such amounts impermissible as described in this Section 5.2 is no longer
applicable. At the time such condition is no longer applicable and no other such condition exists, such amounts
(together with accrued and unpaid interest thereon as described in this Section 5.2) shall become due and payable
immediately. If the Corporate Taxpayer defers the payment of any such amounts pursuant to the first sentence in this
Section 5.2, such amounts shall accrue interest at the Agreed Rate from the date that such amounts originally
became due and owing pursuant to the terms hereof to the date that such amounts are paid. For the avoidance of
doubt, any payment not made due to the preceding sentence shall not be deemed a breach under Section 4.1(c) of
this Agreement unless and until such payment remains unpaid thirty (30) calendar days after the date on which such
condition described in this Section 5.2 is no longer applicable. The Corporate Taxpayer agrees to use commercially
reasonable efforts to cure any condition rendering the payment of such amounts impermissible as described in this
Section 5.2 and to cause the Corporate Taxpayer and its Subsidiaries to pay dividends or make loans (including, to
the extent commercially reasonable, granting access to any revolving credit facility or other source of liquidity to
facilitate the payment of such dividends or loans), to the extent consistent with the terms of their outstanding
indebtedness and any applicable law, to the extent necessary to make payments hereunder.
Section 5.3 Conflicting Agreements. Unless the Rights Holder Representative otherwise agrees in writing,
the Corporate Taxpayer shall use commercially reasonable efforts not to, and shall cause the Corporate Taxpayer’s
Subsidiaries to use commercially reasonable efforts not to, enter into any agreement or indenture or any amendment
or other modification to any agreement or indenture (including, in each case, in connection with any refinancing) or
incur, create or assume any obligations in respect of indebtedness for borrowed money (excluding any trade
payables, intercompany debt or similar obligations) (“Senior Obligations”), in each case, after the date hereof, that
would reasonably be expected to, directly or indirectly, impede (or further impede) its ability to make payments
under this Agreement (other than any Early Termination Payment) in accordance with its terms, including any
agreement that would, directly or indirectly, impede (or further impede) the ability of the Corporate Taxpayer to pay
amounts payable under this Agreement (other than any Early Termination Payment) or the ability of the Corporate
Taxpayer’s Subsidiaries to upstream cash (by dividend, loan or other transfer) to the Corporate Taxpayer to fund
amounts payable by the Corporate Taxpayer under this Agreement (other than any Early Termination Payment);
provided that, for the avoidance of doubt, any interest incurred, accrued or otherwise payable in accordance with a
Senior Obligation shall not be deemed to, directly or indirectly, impede (or further impede) the Corporate
Taxpayer’s ability to make payments under this Agreement or the ability of the Corporate Taxpayer’s Subsidiaries to
upstream cash to the Corporate Taxpayer. Notwithstanding any other provision of this Agreement to the contrary, to
the extent that the Corporate Taxpayer enters into future Tax receivable or other similar agreements (“Future
TRAs”), the Corporate Taxpayer shall ensure that the terms of any such Future TRA shall provide that the Tax
Attributes subject to this Agreement shall be senior in priority in all respects to any Tax attributes subject to any
such Future TRA for purposes of calculating the amount and timing of payments under any such Future TRA and
that there is no duplication of Tax Attributes (and payments with respect thereto) that are subject to this Agreement
and Tax attributes (and payment obligations with respect thereto) that are subject to any Future TRAs. For the
avoidance of doubt, any payment required to be made by the Corporate Taxpayer to the Rights Holders under this
Agreement shall be pari passu in right of payment with all current or future unsecured obligations of the Corporate
Taxpayer and its Subsidiaries that are not Senior Obligations.
ARTICLE VI
NO DISPUTES; CONSISTENCY; COOPERATION
Section 6.1 Participation in the Corporate Taxpayer’s and OpCo’s Tax Matters.
(a) Except as otherwise provided in this Agreement, the Corporate Taxpayer and OpCo shall have full
responsibility for, and sole discretion over, all tax matters concerning the Corporate Taxpayer and OpCo,
respectively, including the preparation, filing or amending of any Tax Return and defending, contesting or settling
any issue pertaining to taxes, subject to a requirement that the Corporate Taxpayer and OpCo, as applicable, act in
good faith in connection with their direct or indirect control of any matter which is reasonably expected to affect the
Rights Holders’ rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, the Corporate Taxpayer or OpCo, as applicable, shall notify the
Rights Holder Representative in writing of the commencement of, and keep the Rights Holder Representative
reasonably informed with respect to, any tax audit or tax administrative or judicial proceeding of the Corporate
Taxpayer (or its Subsidiaries) or OpCo by a Taxing Authority the outcome of which could reasonably be expected to
adversely affect the timing of, or the amount of, any Tax Benefit Payment (any “Tax Claim”), and shall give the
Rights Holder Representative reasonable opportunity to provide information and participate in the applicable portion
of such Tax Claim, including attending any meetings with any Taxing Authority, employing counsel separate from
the counsel employed by the Corporate Taxpayer or OpCo, as applicable, and having the opportunity to reasonably
comment on and approve all material submissions made by the Corporate Taxpayer or OpCo, as applicable, to any
Taxing Authority. Notwithstanding anything herein to the contrary, without the consent of the Rights Holder
Representative, which consent shall not be unreasonably withheld, conditioned or delayed, the Corporate Taxpayer
or OpCo, as applicable, shall not, and shall cause each respective Subsidiary not to, (i) change any accounting
method, or amend or take any position inconsistent with a previously-filed Tax Return of any such entity, in each
case, if such action could materially and adversely affect the Tax Benefit Payments or (ii) settle or otherwise resolve
any Tax Claim, if such settlement could have a materially adverse effect on a Rights Holder’s rights (including the
right to receive payments) under this Agreement.
Section 6.2 Cooperation. Each of the Corporate Taxpayer, OpCo and the Rights Holder Representative shall
(a) furnish to the other party in a timely manner such information, documents and other materials as the other party
may reasonably request for purposes of making or approving any determination or computation necessary or
appropriate under this Agreement, preparing any Tax Return or contesting, participating in, or defending any audit,
examination or controversy with any Taxing Authority including pursuant to Section 6.1, (b) make itself available to
the other party and its representatives to provide explanations of documents and materials and such other
information as the requesting party or its representatives may reasonably request in connection with any of the
matters described in clause (a) above, and (c) reasonably cooperate in connection with any such matter. Upon the
request of any Rights Holder the Corporate Taxpayer shall cooperate in taking any action reasonably requested by
such Rights Holder in connection with (i) its Tax or financial reporting or (ii) the consummation of any assignment
or transfer of any of its rights and/or obligations under this Agreement, including without limitation, providing any
information (including projections of taxable income and Tax Benefit Payments) or executing any documentation. In
addition, the Corporate Taxpayer shall not, and shall cause each of its Subsidiaries not to, take any action or omit to
take any action, in each case, that has the primary purpose of circumventing the attainment of or otherwise reducing
any Tax Benefit Payment or Early Termination Payment under this Agreement or triggering an Early Termination
Event under this Agreement.
Section 6.3 Consistency. The Corporate Taxpayer and the Rights Holders agree to report and cause to be
reported for all purposes, including U.S. federal, state and local Tax purposes and financial reporting purposes, all
Tax-related items (including, without limitation, the Basis Adjustments and each Tax Benefit Payment) in a manner
consistent with that contemplated by this Agreement or specified by the Corporate Taxpayer in any Schedule
required to be provided by or on behalf of the Corporate Taxpayer under this Agreement unless otherwise required
by law. The Corporate Taxpayer shall (and shall cause OpCo and its other Subsidiaries to) use commercially
reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of all Rights
Holders under this Agreement) to defend the Tax treatment contemplated by this Agreement, including the Intended
Tax Treatment, and any Schedule in any audit, contest or similar proceeding with any Taxing Authority.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices. All notices, requests, claims, demands and other communications to be given or
delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally
delivered (or, if delivery is refused, upon presentment) or sent by email (unless the party delivering such notice
receives notice of transmission failure), (b) one (1) Business Day following delivery by reputable overnight express
courier (charges prepaid) or (c) three (3) calendar days following mailing by certified or registered mail, postage
prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this
Section 7.1, notices, demands and other communications shall be sent to the addresses indicated below:
If to PubCo, to:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:      Michael Rubiera
Email:            ****
with a copy, in any case, to:
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:      Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email:            ****
****
If to the OpCo, to:
c/o Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:     Michael Rubiera
Email:         ****
with a copy, in any case, to:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:     Michael Rubiera
Email:           ****
If to any Rights Holder, to:
Accelevation Investment Holdings, LLC
c/o Olympus Partners, LP
Metro Center, 4th Floor, One Station Place
Stamford, CT 06902
Attention:        Matt Boyd
Matt Bujor
Email:              ****
****
with a copy to:
c/o Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:      Robert M. Hayward, P.C.
Robert E. Goedert, P.C.
Email:            ****
****
Section 7.2 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the
same counterpart. Delivery of an executed signature page to this Agreement by facsimile or email transmission shall
be as effective as delivery of a manually signed counterpart of this Agreement.
Section 7.3 Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire
agreement and understanding among the parties with respect to the subject matter hereof and thereof and supersedes
all prior agreements and understandings, whether written or oral, relating to such subject matter in any way. Nothing
in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 7.4 Governing Law. The law of the State of Delaware shall govern (a) all claims or matters related
to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning
the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations
imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of
any jurisdiction other than the State of Delaware.
Section 7.5 Severability. If any provision of this Agreement is determined to be invalid, illegal or
unenforceable by any governmental entity, all other provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any provision is invalid, illegal or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 7.6 Successors; Assignment; Amendments; Waivers.
(a) No Rights Holder may assign its rights under this Agreement without the prior written consent of
the Rights Holder Representative; provided that, unless otherwise determined by the Corporate Taxpayer in its sole
discretion, any approved assignee shall execute and deliver a joinder to this Agreement in the form attached hereto
as Exhibit A. Any assignment of any such assignee’s rights meeting the requirements of Section 7.6(a) shall be
referred to herein as a “Permitted Assignment” and Schedule A hereto shall be amended to reflect such Permitted
Assignment.
(b) No provision of this Agreement may be amended unless such amendment is approved in writing by
the Corporate Taxpayer and the Rights Holder Representative. No provision of this Agreement may be waived
unless such waiver is in writing and signed by the party against whom the waiver is to be effective; provided that,
the Rights Holder Representative may waive any provision on behalf of any Rights Holder.
(c) All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit
and burden of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs,
executors, administrators and legal representatives, including any permitted assignee pursuant to a Permitted
Assignment. The Corporate Taxpayer shall require and cause any direct or indirect successor (whether by purchase,
merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporate Taxpayer, by
written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporate Taxpayer would be required to perform if no such succession had taken place.
Section 7.7 Headings, Titles, and Subtitles. The headings, titles, and subtitles of the sections and
subsections of this Agreement are for convenience of reference only and are not to be considered in construing this
Agreement.
Section 7.8 Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT
(WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN
CONNECTION WITH (A) THIS AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION,
COLLECTION OR ENFORCEMENT HEREOF OR (B) THE ACTIONS OF THE PARTIES IN THE
NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
Section 7.9 Resolution of Disputes.
(a) Other than with respect to any disputes under Section 2.4, Section 4.1, or Section 4.2 (which are to
be resolved pursuant to Section 7.10) or claims for specific performance or other equitable relief, any and all
disputes hereunder which cannot be settled amicably between or among the Corporate Taxpayer, any Rights Holder
and/or the Rights Holder Representative, including any ancillary claims of any party, arising out of, relating to or in
connection with the validity, negotiation, execution, interpretation, performance or non-performance of this
Agreement (including the validity, scope and enforceability of this arbitration provision) shall be finally settled by
arbitration conducted by a single arbitrator in accordance with the then existing Rules of Arbitration of the
International Chamber of Commerce. The place of arbitration shall be New York, New York. The parties to such
arbitration shall jointly select a single arbitrator who shall have the authority to hold hearings and to render a
decision in accordance with the then existing Rules of Arbitration of the International Chamber of Commerce. If the
parties to such arbitration fail to agree on the selection of an arbitrator within thirty (30) calendar days of the receipt
of the request for arbitration, the arbitrator shall be selected by the International Chamber of Commerce. The
arbitrator shall be a lawyer. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et
seq., and judgment on the award may be entered by any court having jurisdiction thereof. Performance under this
Agreement shall continue if reasonably possible during any arbitration proceedings.
(b) Notwithstanding the provisions of Section 7.9(a), either the Corporate Taxpayer or the Rights
Holders or Rights Holder Representative may bring an action or special proceeding in any court of competent
jurisdiction for the purpose of compelling a party to arbitrate in accordance with Section 7.9(a), seeking temporary
or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of
this Section 7.9(b), the Rights Holders or Rights Holder Representative (i) expressly consents to the application of
Section 7.9(c) to any such action or proceeding, and (ii) irrevocably appoints the Corporate Taxpayer as its agent for
service of process in connection with any such action or proceeding and agrees that service of process upon such
agent, who shall promptly advise the Rights Holders or Rights Holder Representative of any such service of process,
shall be deemed in every respect effective service of process upon the Rights Holders or Rights Holder
Representative in any such action or proceeding.
(c) THE CORPORATE TAXPAYER AND THE RIGHTS HOLDERS AND RIGHTS HOLDER
REPRESENTATIVE EACH HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS
LOCATED IN THE STATE OF DELAWARE AND AGREES THAT ANY JUDICIAL PROCEEDING
BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7.9(B) OR SECTION 7.17 SHALL BE
BROUGHT AND DETERMINED EXCLUSIVELY IN ANY STATE COURT LOCATED IN THE STATE OF
DELAWARE AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF DELAWARE
(OR, IF SUCH STATE COURTS REFUSE TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER,
ANY FEDERAL COURT WITHIN THE STATE OF DELAWARE).
(d) The parties acknowledge that the forum designated by Section 7.9(c) has a reasonable relation to
this Agreement and to the parties’ relationship with one another.
Section 7.10 Reconciliation. In the event that the Corporate Taxpayer and the Rights Holder Representative
are unable to resolve a disagreement with respect to the matters governed by Section 2.4, Section 4.1, and
Section 4.2 within the relevant period designated in this Agreement (including the finalization of any Schedule or
the amount of any Tax Benefit Payment or Early Termination Payment (or other payment pursuant to the
Section 4.1) required to be made by the Corporate Taxpayer to the Rights Holders under this Agreement) (a
“Reconciliation Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally
recognized expert in the particular area of disagreement (the “Expert”) mutually acceptable to both parties. The
Expert shall be a nationally recognized accounting, consulting or valuation firm (other than a so-called “Big Four”
accounting firm) mutually selected by the Corporate Taxpayer and the Rights Holder Representative. The Corporate
Taxpayer and the Rights Holder Representative shall instruct the Expert to, and the Expert shall, make a final
determination of such Reconciliation Dispute in accordance with the guidelines and procedures set forth in this
Agreement. The Corporate Taxpayer and the Rights Holder Representative will reasonably cooperate with the
Expert during the term of its engagement. The Corporate Taxpayer and the Rights Holder Representative shall
instruct the Expert not to, and the Expert shall not, assign a value to any item in dispute greater than the greatest
value for such item assigned by the Corporate Taxpayer, on the one hand, or the Rights Holder Representative, on
the other hand, or less than the smallest value for such item assigned by the Corporate Taxpayer, on the one hand, or
the Rights Holder Representative, on the other hand. The Corporate Taxpayer and the Rights Holder Representative
shall also instruct the Expert to, and the Expert shall, make its determination based solely on presentations by the
Corporate Taxpayer and the Rights Holder Representative that are in accordance with the guidelines and procedures
set forth in this Agreement and not on the basis of an independent review. If the Reconciliation Dispute is not
resolved before any payment that is the subject of the Reconciliation Dispute is due or any Tax Return reflecting the
subject of the Reconciliation Dispute is due, such payment shall be made on the date prescribed by this Agreement
and such Tax Return may be filed as prepared by the Corporate Taxpayer, subject to adjustment or amendment upon
resolution. The costs and expenses relating to the engagement of such Expert or the amendment of any Tax Return
shall be borne by the Corporate Taxpayer, except that the Rights Holder Representative shall pay a portion of the
fees and expenses of the Expert equal to the percentage by which the portion of the disputed amounts not awarded to
Rights Holders (if any) bears to the aggregate amount actually disputed. Any dispute as to whether a dispute is a
Reconciliation Dispute, within the meaning of this Section 7.10 shall be decided by the Expert. The Expert shall
finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.10 shall
be binding on the Corporate Taxpayer and the Rights Holder Representative and may be entered and enforced in any
court having jurisdiction.
Section 7.11 Withholding. The Corporate Taxpayer shall be entitled to deduct and withhold from any
payment payable pursuant to this Agreement such amounts as the Corporate Taxpayer is required to deduct and
withhold with respect to the entering into this Agreement or the making of such payment under the Code, or any
applicable provision of state, local or non-U.S. tax law, provided further, that the Corporate Taxpayer (i) gives ten
(10) days advance written notice of its intention to make such withholding to the Rights Holder Representative, (ii)
identifies the legal basis requiring such withholding and (iii) gives the Rights Holder Representative a reasonable
opportunity to establish that such withholding is not legally required or may be reduced. To the extent that amounts
are so withheld and paid over to the appropriate Taxing Authority by the Corporate Taxpayer, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Rights Holder. The
Corporate Taxpayer shall provide evidence of such payments to the Rights Holders to the extent that such evidence
is available. Each Rights Holder shall deliver to the Corporate Taxpayer at (i) the time such Rights Holder becomes
a Rights Holder and (ii) the reasonable request of the Corporate Taxpayer, such properly completed and executed
documentation reasonably requested by the Corporate Taxpayer as will permit such payments to be made without
withholding or at a reduced rate of withholding (including IRS Form W-9 or the appropriate IRS Form W-8, as
applicable).
Section 7.12 Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate
Assets.
(a) If the Corporate Taxpayer or any of its Subsidiaries is or becomes a member of an affiliated,
consolidated, combined or unitary group of corporations that files a consolidated, combined or unitary income Tax
Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state, local or foreign Tax
law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax
Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with
reference to the consolidated, combined or unitary taxable income of the group as a whole.
(b) If any Person the income of which is included in the income of the Corporate Taxpayer or its
Subsidiaries or the Corporate Taxpayer’s or its Subsidiaries’ affiliated or consolidated group transfers one or more
Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with
which such entity does not file a consolidated Tax Return pursuant to Section 1501 of the Code or any
corresponding provisions of state, local or non-U.S. Tax law, such entity, for purposes of calculating the amount of
any Tax Benefit Payment or Early Termination Payment due hereunder, shall be treated as having disposed of such
Reference Asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be
received in a transaction contemplated in the prior sentence shall be equal to the fair market value of the deemed
transferred Reference Asset, plus (i) the amount of debt to which such Reference Asset is subject, in the case of a
transfer of an encumbered asset or (ii) the amount of debt allocated to such Reference Asset, in the case of a transfer
of a partnership interest. The transactions described in this Section 7.12(b) shall be taken into account in determining
the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income, 
gain or loss deemed allocated to the Corporate Taxpayer and its Subsidiaries using the Non-Blocker Transferred
Basis, Non-Exchange Transferred Basis, Non-IPO Basis, Non-Stepped Up Tax Basis and Non-Unit Transferred
Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the
actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and
without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer
or its Subsidiaries the taxable income of the Corporate Taxpayer or its Subsidiaries shall be determined by treating
OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to
such Reference Asset (using the Non-Blocker Transferred Basis, Non-Exchange Transferred Basis, Non-IPO Basis,
Non-Stepped Up Tax Basis and Non-Unit Transferred Basis), while the Actual Tax Liability of the Corporate
Taxpayer or its Subsidiaries would be determined by recovering the actual Tax basis of the Reference Asset that
reflects any Blocker Transferred Basis, Exchange Transferred Basis, IPO Basis, Basis Adjustments and Unit
Transferred Basis. For purposes of this Section 7.12, a transfer of a partnership interest shall be treated as a transfer
of the transferring partner’s share of each of the assets and liabilities of that partnership.
Section 7.13 Confidentiality.
(a) The Rights Holders and the Rights Holder Representative acknowledge and agree that the
information of the Corporate Taxpayer is confidential and, except in the course of performing any duties as
necessary for the Corporate Taxpayer, as required by law or legal process or to enforce the terms of this Agreement,
shall keep and retain in confidence and not disclose to any Person any confidential matters of the Corporate
Taxpayer acquired pursuant to this Agreement.
(b) This Section 7.13 shall not restrict (i) the disclosure of any information that has been made publicly
available by the Corporate Taxpayer, becomes public knowledge (except as a result of an act of any Rights Holder,
the Rights Holder Representative or any of their Affiliates in violation of this Agreement) or is generally known to
the business community, (ii) the disclosure of information to its personnel and representatives who are subject to
confidentiality obligations or otherwise to the extent reasonably necessary for any Rights Holder or its Affiliates to
prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to
prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such Tax Returns or
(iii) the disclosure of information to any direct or indirect current, former or prospective limited partners of any
Rights Holder so long as such Persons are apprised of the confidential nature thereof. Notwithstanding anything to
the contrary in this Agreement, each Rights Holder (and each employee, representative or other agent of such Rights
Holder, as applicable) may disclose the tax treatment and tax structure of (A) the Corporate Taxpayer, (B) the
transactions, if any, entered into in connection with this Agreement, (C) this Agreement, and (D) any of the
transactions of the Corporate Taxpayer, and all materials of any kind (including opinions or other tax analyses) that
are provided to the Rights Holders relating to such tax treatment and tax structure.
Section 7.14 Rules of Construction. Unless otherwise specified herein:
(a) For purposes of interpretation of this Agreement:
(i) the words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision thereof;
(ii) any accounting term used and not otherwise defined in this Agreement has the meaning assigned to such
term in accordance with GAAP;
(iii) unless specified otherwise, references to an Article, Section or clause refer to the appropriate Article,
Section or clause in this Agreement;
(iv) the terms “include” or “including” are by way of example and not limitation and shall be deemed
followed by the words “without limitation”;
(v) the word “if” and other words of similar import when used herein shall be deemed in each case to be
followed by the phrase “and only if”; and
(vi) the term “documents” includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(b) In the computation of periods of time from a specified date to a later specified date, the word
“from” means “from and including”, the words “to” and “until” each mean “to but excluding” and the word
“through” means “to and including.”
(c) Section headings herein are included for convenience of reference only and shall not affect the
interpretation of this Agreement.
(d) Unless otherwise expressly provided herein, references to any law (including the Code) include all
statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law.
(e) Where a word is defined herein, references to the singular shall include references to the plural and
vice versa.
(f) With regard to all dates, deadlines and time periods set forth or referred to in this Agreement, time
is of the essence. If the date specified for giving any notice or taking any action is not a Business Day (or if the
period during which any notice is required to be given or any action taken expires on a date which is not a Business
Day), then the date for giving such notice or taking such action (and the expiration date of such period during which
notice is required to be given or action taken) shall be automatically extended to the next date which is a Business
Day.
Section 7.15 Rights Holder Representative. By executing this Agreement, each of the Rights Holders shall
be deemed to have irrevocably constituted the Rights Holder Representative as his, her or its agent, proxy and
attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and
execute any and all documents on behalf of such Rights Holders which may be necessary, convenient or appropriate
to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required
pursuant to this Agreement; (ii) except to the extent specifically provided in this Agreement, receipt and forwarding
of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement;
(iv) any and all consents, waivers, amendments or modifications deemed by the Rights Holder Representative, in its
sole and absolute discretion, to be necessary or appropriate under this Agreement (including a termination of the
Corporate Taxpayer’s obligations) and the execution or delivery of any documents that may be necessary or
appropriate in connection therewith; (v) amending this Agreement or any of the instruments to be delivered to the
Corporate Taxpayer pursuant to this Agreement; (vi) taking actions the Rights Holder Representative is expressly
authorized to take pursuant to the other provisions of this Agreement; (vii) negotiating and compromising, on behalf
of such Rights Holders, any dispute that may arise under, and exercising or refraining from exercising any remedies
available under, this Agreement or any other agreement contemplated hereby and executing, on behalf of such
Rights Holders, any settlement agreement, release or other document with respect to such dispute or remedy; and
(viii) engaging attorneys, accountants, agents or consultants on behalf of such Rights Holders in connection with this
Agreement or any other agreement contemplated hereby and paying any fees related thereto. The Rights Holder
Representative may resign upon thirty (30) calendar days’ written notice to the Corporate Taxpayer. All reasonable
and documented out-of-pocket costs and expenses incurred by the Rights Holder Representative in its capacity as
such shall be promptly reimbursed by the Corporate Taxpayer upon presentation of an invoice and reasonable
support therefor by the Rights Holder Representative. To the fullest extent permitted by law, none of the Rights
Holder Representative, any of its Affiliates, or any of the Rights Holder Representative’s or Affiliate’s directors,
officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in
damages or otherwise to any Rights Holder, OpCo or the Corporate Taxpayer for damages arising from any action
taken or omitted to be taken by the Rights Holder Representative or any other Person with respect to OpCo or the
Corporate Taxpayer, except in the case of any action or omission which constitutes, with respect to such Person,
willful misconduct or fraud, and each Rights Holder shall indemnify, defend and hold harmless the Rights Holder
Representative for any losses, liabilities or damages arising out of the Rights Holder Representative’s performance
of its duties hereunder. Each of the Covered Persons may consult with legal counsel, accountants and other experts
selected by it, and any act or omission suffered or taken by it on behalf of the Rights Holders or in furtherance of the
interest of the Rights Holders in good faith in reliance upon and in accordance with the advice of such counsel,
accountants or other experts shall create a rebuttable presumption of the good faith and due care of such Covered
Person with respect to such act or omission; provided that such counsel, accountants or other experts were selected
with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to OpCo,
the Corporate Taxpayer or the Rights Holders for acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. Each
Rights Holder irrevocably agrees that such agency is coupled with an interest and is therefore irrevocable without
the written consent of the Rights Holder Representative and will survive the death, incapacity, dissolution,
liquidation or bankruptcy of such Rights Holder.
Section 7.16 Partnership Agreement. To the extent this Agreement imposes obligations on OpCo or a
member of OpCo, this Agreement shall be treated as part of the OpCo Agreement as described in Section 761(c) of
the Code and Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c) of the Treasury Regulations.
Section 7.17 Specific Performance. The parties hereto agree that irreparable damage, for which monetary
relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this
Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties
hereto fail to take any action required of them hereunder to consummate any of the transactions contemplated by this
Agreement. It is accordingly agreed that (i) the parties hereto shall be entitled to an injunction or injunctions,
specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to
which they are entitled under this Agreement and to thereafter cause the transactions contemplated by this
Agreement to be consummated, and (ii) the right of specific performance and other equitable relief is an integral part
of the transactions contemplated by this Agreement and without that right, no party hereto would have entered into
this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief
is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary
damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The
parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this
Section 7.17 shall not be required to provide any bond or other security in connection with any such order or
injunction.
Section 7.18 Certain Acknowledgments. Without limiting the generality of Section 2.4, any Person who or
which accepts the rights and obligations of a Rights Holder under this Agreement shall be treated as a Rights Holder
hereunder pursuant to the terms hereof, and such Person shall be deemed to have adhered to and agreed to be bound
by the terms of this Agreement as a Rights Holder without further action or the execution of any additional
documents or instruments, including any counterpart signature page to this Agreement or joinder to this Agreement.
Further, each such Person shall be deemed to have agreed not to assert any claim that it is not bound by the terms of
this Agreement and acknowledges that in no circumstance can such Person be a Rights Holder, or be entitled to the
rights of a Rights Holder hereunder, if it is not bound by all of the terms and conditions of this Agreement,
including, without limitation, the obligations to which a Rights Holder is subject hereunder.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Tax Receivable Agreement as of the date first
written above.
COMPANY:
ACCELEVATION HOLDINGS CORP.
By:/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
OPCO:
ACCELEVATION HOLDINGS LLC
By:/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
INSTOR:
INSTOR BLOCKER, INC.
By:/s/ Michael Rubiera
Name: Michael Rubiera
Title: Chief Executive Officer
RIGHTS HOLDERS:
ACCELEVATION INVESTMENT HOLDINGS LLC
By:
/s/ Michael Rubiera
Name:
Michael Rubiera
Title:
Chief Executive Officer
EX-10.4 9 exhibit104-exchangeagreeme.htm EX-10.4 Exhibit 10.4 - Exchange Agreement
Exhibit 10.4
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (as it may be amended from time to time in accordance with
the terms hereof, this “Agreement”), dated as of September 30, 2026 and effective as of immediately prior
to the consummation of the IPO (the “Effective Time”), is made by and among Accelevation Holdings
Corp., a Delaware corporation (“Pubco”), Instor Blocker, Inc. (“Blocker”), Accelevation Holdings LLC, a
Delaware limited liability company (the “Company”), and Accelevation Investment Holdings LLC, a
Delaware limited liability company (the “Member”).
WHEREAS, in connection with the initial public offering (the “IPO”) of shares of Class A
common stock, par value $0.0001 per share, of Pubco (“Class A Common Stock”), Pubco intends to
consummate the transactions described in the Registration Statement on Form S-1, as amended
(Registration No. 333-298715), initially filed by Pubco with the U.S. Securities and Exchange
Commission on September 2, 2026;
WHEREAS, immediately following the IPO, the Member owns the number of Series B Units of
the Company and shares of Class B common stock, par value $0.0001 per share, of Pubco (“Class B
Common Stock”) set forth on Exhibit A hereto; and
WHEREAS, the parties to this Agreement desire to provide for the exchange of Exchangeable
Units together with shares of Class B Common Stock for shares of Class A Common Stock, on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained
herein and for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Section 1.1Definitions.
As used in this Agreement, the following terms have the meanings set forth in this Section 1.1.
All other capitalized terms that are used but not otherwise defined herein shall have the meanings ascribed
to such terms in the LLC Agreement.
“Agreement” has the meaning set forth in the preamble.
“Blocker” has the meaning set forth in the preamble.
“Cash Payment” means, an amount in cash equal to the product of (x) the Exchanged Unit
Amount, (y) the then-applicable Exchange Rate, and (z) (i) solely in connection with a Change of Control
Exchange, the Class A Common Stock Value, and (ii) with respect to any Exchange that is not a Change
of Control Exchange, the net price (after underwriting discounts) of Class A Common Stock received by
Pubco in the substantially concurrent public offering or private sale, as applicable.
“Change of Control” has the meaning set forth in the Tax Receivable Agreement.
“Change of Control Exchange” has the meaning set forth in Section 2.1(b)(i).
“Change of Control Exchange Date” has the meaning set forth in Section 2.1(b)(iii).
2
“Class A Common Stock” means Class A common stock, par value $0.0001 per share, of Pubco.
“Class A Common Stock Value” means, with respect to any Change of Control Exchange, the
greater of (x) the arithmetic average of the volume weighted average prices for a share of Class A
Common Stock on the principal U.S. securities exchange or automated or electronic quotation system on
which the Class A Common Stock trades, as reported by Bloomberg, L.P., or its successor, for each of the
three (3) consecutive full Trading Days ending on and including the last full Trading Day immediately
prior to the related Exchange Date, subject to appropriate and equitable adjustment for any stock splits,
reverse splits, stock dividends or similar events affecting the Class A Common Stock and (y) the price per
share of Class A Common Stock offered by the Person or group that is the acquirer in the applicable
Change of Control transaction. If the Class A Common Stock no longer trades on a securities exchange or
automated or electronic quotation system, then the Class A Common Stock Value shall be determined in
good faith by a majority of the directors of Pubco that do not have an interest in the Exchangeable Units
and shares of Class B Common Stock being Exchanged.
“Class B Common Stock” means Class B common stock, par value $0.0001 per share, of Pubco.
“Contribution Notice” has the meaning set forth in Section 2.1(a)(iv).
“Effective Time” has the meaning set forth in the preamble.
“Exchange” has the meaning set forth in Section 2.1(a)(i).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Date” has the meaning set forth in Section 2.1(a)(iv).
“Exchange Notice” has the meaning set forth in Section 2.1(a)(iv).
“Exchange Rate” means the number of shares of Class A Common Stock for which one Series B
Unit is entitled to be Exchanged. The Exchange Rate will also be used to determine the number of shares
of Class B Common Stock that the Member must surrender upon an Exchange. On the date of this
Agreement, the Exchange Rate shall be 1.00, subject to adjustment pursuant to Section 2.2.
“Exchangeable Unit” means a Series B Unit held by the Member.
“Exchanged Unit Amount” means, with respect to an Exchange, the number of Exchangeable
Units set forth in the applicable Exchange Notice.
“First Exchange Time” means the expiration or earlier waiver of any lockup agreement relating to
the IPO.
“IPO” has the meaning set forth in the recitals.
“Liens” means any and all liens, charges, security interests, options, claims, mortgages, pledges,
proxies, voting trusts or agreements, obligations, understandings or arrangements or other restrictions on
title or transfer of any nature whatsoever, in each case, excluding transfer restrictions under applicable
securities laws.
3
“LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of
the Company, dated as of the date hereof, as the same may be amended, amended and restated or replaced
from time to time.
“Member” has the meaning set forth in the preamble.
“Pubco” has the meaning set forth in the preamble.
“Retraction Notice” has the meaning set forth in Section 2.1(a)(vii).
“SEC” means the U.S. Securities and Exchange Commission.
“Takeover Laws” has the meaning set forth in Section 3.1.
“Tax Receivable Agreement” means that certain Tax Receivable Agreement, dated as of the date
hereof, by and among Pubco, the Company and the other signatories listed on Schedule A thereto.
“Trading Day” means a day on which the principal U.S. securities exchange on which the Class A
Common Stock is listed or admitted to trading is open for the transaction of business (unless such trading
shall have been suspended for the entire day).
ARTICLE II
Section 2.1Exchange of Units.
(a)Elective Exchanges.
(i)From and after the First Exchange Time, unless otherwise determined by
the Member and Pubco, in accordance with the procedures set forth in Section 2.6, the Member
shall be entitled, upon the terms and subject to the conditions hereof and the LLC Agreement, to
surrender Exchangeable Units to Blocker and a corresponding number of shares of Class B
Common Stock to Pubco after taking into account the Exchange Rate (in each case, free and clear
of all Liens) in exchange for the delivery to the Member (or its designee) of either, at the option
of Pubco, (x) a number of shares of Class A Common Stock that is equal to the product of the
applicable Exchanged Unit Amount multiplied by the Exchange Rate or (y) solely in connection
with an Exchange (including a Change of Control Exchange) that coincides with a substantially
concurrent public offering or private sale of Class A Common Stock, the applicable Cash
Payment. Any exchange of Exchangeable Units and Class B Common Stock for Class A
Common Stock or the Cash Payment, as applicable, is defined herein as an “Exchange.” Subject
to Section 2.1(a)(ii), from and after the First Exchange Time, the Member may Exchange any
Exchangeable Units at any time and from time to time. Notwithstanding anything to the contrary
herein, neither Pubco nor Blocker shall effectuate a Cash Payment pursuant to this Section 2.1(a)
or Section 2.1(b) unless (A) Pubco determines to consummate a private sale or public offering of
Class A Common Stock on, or not later than five (5) Business Days after, the relevant Exchange
Date and (B) Pubco contributes sufficient proceeds from such private sale or public offering to
Blocker for payment by Blocker of the applicable Cash Payment or Pubco directly pays the
applicable Cash Payment. For the avoidance of doubt, Blocker shall have no obligation to make a
Cash Payment that exceeds the cash contributed to Blocker by Pubco from Pubco’s offering or
sales of Class A Common Stock referenced earlier in this Section 2.1(a)(i).
4
(ii)Notwithstanding anything to the contrary contained herein, the Member
shall not be entitled to effectuate an Exchange of Exchangeable Units (and a corresponding
number of shares of Class B Common Stock after taking into account the Exchange Rate) as set
forth in this Section 2.1(a), and Pubco, Blocker and Company shall have the right to refuse to
honor any request for such an Exchange, if at any time Pubco, Blocker or the Company (as
applicable) determines based on the advice of counsel that such Exchange (1) would be
prohibited by law or regulation (including the unavailability of a registration of such Exchange
under the Securities Act or an exemption from the registration requirements thereof) or (2) would
not be permitted under any agreement with Pubco, Blocker, the Company or any of their
Subsidiaries to which the Member is party (including the LLC Agreement). Upon such
determination, Pubco, Blocker, or the Company (as applicable) shall notify the Member, which
such notice shall include an explanation in reasonable detail as to the reason that the Exchange
has not been honored.
(iii)Notwithstanding anything to the contrary herein, if the Manager of the
Company, after consultation with its outside legal counsel and tax advisor, shall determine in
good faith that interests in the Company do not meet the requirements of Treasury Regulation
Section 1.7704-1(h) (or other provisions of those Regulations as determined by the Manager in its
sole discretion), the Company may impose such restrictions on Exchanges as the Company may
reasonably determine to be necessary or advisable so that the Company is not treated as a
“publicly traded partnership” under Section 7704 of the Code.
(iv)The Member shall exercise its right to effectuate an Exchange of
Exchangeable Units, and a corresponding number of shares of Class B Common Stock after
taking into account the Exchange Rate, as set forth in this Section 2.1(a), by delivering to the
Company, with a contemporaneous copy delivered to Pubco, during normal business hours, (A) a
written election of exchange in respect of the Exchangeable Units to be exchanged substantially
in the form of Exhibit B hereto (an “Exchange Notice”), duly executed by the Member, (B) any
certificates in the Member’s possession representing such Exchangeable Units, (C) any stock
certificates in the Member’s possession representing such shares of Class B Common Stock and
(D) if Pubco or the Company requires the delivery of the certification contemplated by Section
2.4(b), such certification or written notice from the Member that it is unable to provide such
certification. Unless the Member timely has delivered a Retraction Notice pursuant to Section
2.1(a)(vii), an Exchange pursuant to this Section 2.1(a) shall be effected on the fifth (5th) Business
Day following the Business Day on which Pubco and the Company have received all of the items
specified in clauses (A)-(D) of the first sentence of this Section 2.1(a)(iv) or such later date that is
a Business Day specified in the Exchange Notice (such Business Day, the “Exchange Date”);
provided, that the Company may establish alternate exchange procedures as necessary in order to
facilitate the establishment by the Member of a trading plan meeting the requirements of Rule
10b5-1 under the Exchange Act. On the Exchange Date, all rights of the Member as a holder of
the Exchangeable Units and shares of Class B Common Stock that are subject to the Exchange
shall cease, and unless Pubco has elected Cash Payment, the Member (or its designee) shall be
treated for all purposes as having become the record holder of the shares of Class A Common
Stock to be received by the Member in respect of such Exchange.
(v)Within two (2) Business Days following the Business Day on which
Pubco and the Company have received the Exchange Notice, Pubco shall give written notice (the
“Contribution Notice”) to the Company (with a copy to the Member) of its intended settlement
5
method; provided that, if Pubco does not timely deliver a Contribution Notice, Pubco shall be
deemed to have not elected the Cash Payment method.
(vi)The Member may specify, in an applicable Exchange Notice, that the
Exchange is to be contingent (including as to timing) upon the occurrence of any transaction or
event, including the consummation of a purchase by another Person (whether in a tender or
exchange offer, an underwritten offering, Change of Control transaction or otherwise) of shares
of Class A Common Stock or any merger, consolidation or other business combination.
(vii)Notwithstanding anything herein to the contrary, the Member may
withdraw or amend its Exchange Notice, in whole or in part, at any time prior to 5:00 p.m. New
York City time, on the Business Day immediately prior to the Exchange Date by giving written
notice (a “Retraction Notice”) to the Company (with a copy to Pubco) specifying (A) the number
of withdrawn Exchangeable Units (and corresponding number of shares of Class B Common
Stock after taking into account the Exchange Rate), (B) the number of Exchangeable Units (and
corresponding number of shares of Class B Common Stock after taking into account the
Exchange Rate) as to which the Exchange Notice remains in effect, if any, and (C) if the Member
so determines, a new Exchange Date or any other new or revised information permitted in the
Exchange Notice.
(b)Change of Control. In connection with a Change of Control, and subject to any
approval of the Change of Control by the holders of Class A Common Stock and Class B
Common Stock that may be required:
(i)Pubco shall have the right to require the Member to effectuate an
Exchange of some or all of the Member’s Exchangeable Units, and a corresponding number of
shares of Class B Common Stock after taking into account the Exchange Rate (in each case, free
and clear of all Liens), with Blocker or, at the option of Pubco, with any Subsidiary of Pubco, in
each case, in exchange for the delivery by Blocker to the Member (or its designee) of a number of
shares of Class A Common Stock that is equal to the product of the applicable Exchanged Unit
Amount and the Exchange Rate (such Exchange, a “Change of Control Exchange”) in accordance
with the procedures set forth in Section 2.6; provided that, if Pubco requires the Member to
Exchange less than all of its outstanding Exchangeable Units (and corresponding number of
shares of Class B Common Stock after taking into account the Exchange Rate), the Member’s
participation in the required Exchange shall be reduced pro rata based on ownership of
Exchangeable Units. For the avoidance of doubt, any Exchangeable Units and a corresponding
number of shares of Class B Common Stock held by the Member that are not Exchanged pursuant
to a Change of Control Exchange may be Exchanged by the Member after the Change of Control
transaction pursuant to Section 2.1(a) subject to and in accordance with the terms thereof.
(ii)The election of Pubco pursuant to this Section 2.1(b) shall be at the sole
discretion of Pubco upon the approval thereof by a majority of the Board of Directors of Pubco.
(iii)Any Exchange pursuant to this Section 2.1(b) shall be effective
immediately prior to the consummation of the Change of Control (and, for the avoidance of
doubt, shall not be effective if such Change of Control is not consummated) (the “Change of
Control Exchange Date”). From and after the Change of Control Exchange Date, (A) the
Exchangeable Units and shares of Class B Common Stock Exchanged pursuant to this Section
2.1(b) shall be deemed to be transferred to the Company and Pubco, as applicable, on the Change
6
of Control Exchange Date and (B) the Member shall cease to have any rights with respect to the
Exchangeable Units and shares of Class B Common Stock that is Exchanged pursuant to this
Section 2.1(b) (other than the right to receive shares of Class A Common Stock pursuant to
Section 2.1(b)(i) upon compliance with its obligations under Section 2.1(c)).
(iv)Pubco shall provide written notice of an expected Change of Control to
the Member within the earlier of (A) five (5) Business Days following the execution of the
agreement with respect to such Change of Control and (B) ten (10) Business Days before the
proposed date upon which the contemplated Change of Control is to be effected, indicating in
such notice such information as may reasonably describe the Change of Control transaction,
subject to applicable law, including the date of execution of such agreement or such proposed
effective date, as applicable, the amount and types of consideration to be paid for Exchangeable
Units and shares of Class B Common Stock or shares of Class A Common Stock, as applicable,
in the Change of Control (which consideration shall be equivalent whether paid for Exchangeable
Units and shares of Class B Common Stock or shares of Class A Common Stock), any election
with respect to types of consideration that a holder of Exchangeable Units and shares of Class B
Common Stock or shares of Class A Common Stock, as applicable, shall be entitled to make in
connection with the Change of Control, the percentage of total Exchangeable Units and shares of
Class B Common Stock or shares of Class A Common Stock, as applicable, to be transferred to
the acquirer by all shareholders in the Change of Control, and the number of Exchangeable Units
and shares of Class B Common Stock held by the Member that Pubco intends to require to be
Exchanged for shares of Class A Common Stock in connection with the Change of Control.
Pubco shall update such notice from time to time to reflect any material changes to such notice.
Pubco may satisfy any such notice and update requirements described in the preceding two
sentences by providing such information on a Form 8-K, Schedule TO, Schedule 14D-9,
Preliminary Merger Proxy on Schedule 14A, Definitive Merger Proxy on Schedule 14A or
similar form filed with the SEC.
(c)Exchange Procedure on Change of Control Exchange. On or prior to the Change
of Control Exchange Date, the Member shall deliver to Pubco or the Company, as applicable,
with a contemporaneous copy delivered to the Company, in each case during normal business
hours at the principal executive offices of the Company and Pubco, respectively: (A) an
Exchange Notice, duly executed by the Member; (B) any certificates in the Member’s possession
representing all Exchangeable Units being surrendered by the Member to Blocker; (C) any stock
certificates in the Member’s possession representing all shares of Class B Common Stock being
surrendered by the Member to Pubco; and (D) if Pubco or the Company requires the delivery of
the certification contemplated by Section 2.4(b), such certification or written notice from the
Member that it is unable to provide such certification.
(d)Exchange Consideration. As promptly as practicable on or after the Exchange
Date or Change of Control Exchange Date, as applicable, provided the Member has satisfied its
obligations under Section 2.1(a)(iv) or Section 2.1(c), as applicable, the Company or Pubco shall
deliver or cause to be delivered to the Member (or its designee), either certificates or evidence of
book-entry shares representing the number of shares of Class A Common Stock deliverable upon
the applicable Exchange, registered in the name of the Member (or its designee) or, if Pubco has
so elected, the Cash Payment. Notwithstanding anything set forth in this Section 2.1(d) to the
contrary, to the extent the Class A Common Stock issued in the exchange will be settled through
the facilities of The Depository Trust Company, the Company or Pubco will, upon the written
instruction of the Member, deliver the shares of Class A Common Stock deliverable to the
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Member through the facilities of The Depository Trust Company to the account of the participant
of The Depository Trust Company designated by the Member in the Exchange Notice. Upon the
Member exercising its right to Exchange in accordance with Section 2.1(a)(i) or the occurrence of
a Change of Control Exchange, the Company or Pubco shall take such actions as (A) may be
required to ensure that the Member receives the shares of Class A Common Stock or the Cash
Payment that the Member is entitled to receive in connection with such Exchange pursuant to this
Section 2.1, and (B) may be reasonably within its control that would cause such Exchange to be
treated for purposes of the Tax Receivable Agreement as an “Exchange” under the Tax
Receivable Agreement.
(e)Legends.
(i)The shares of Class A Common Stock issued upon an Exchange, other
than any such shares issued in an Exchange subject to an effective registration statement under
the Securities Act, shall bear a legend in substantially the following form:
THE TRANSFER OF THESE SECURITIES HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED
OTHER THAN IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED (OR OTHER APPLICABLE LAW), OR AN EXEMPTION
THEREFROM.
(ii)If (A) any shares of Class A Common Stock have been sold pursuant to a
registration statement that has been declared effective by the SEC, (B) all of the applicable
conditions of Rule 144 are met or (C) the legend (or a portion thereof) otherwise ceases to be
applicable, Pubco, upon the written request of the holder thereof, shall promptly provide such
holder or its respective transferees with new certificates (or evidence of book-entry share) for
securities of like tenor not bearing the provisions of the legend with respect to which the
restriction has terminated. In connection therewith, such holder shall provide Pubco with such
information in its possession as Pubco may reasonably request (which may include an opinion of
counsel reasonably acceptable to Pubco) in connection with the removal of any such legend.
(f)Cancellation of Class B Common Stock. Any shares of Class B Common Stock
surrendered in an Exchange shall automatically be deemed cancelled without any action on the
part of any Person, including Pubco. Any such cancelled shares of Class B Common Stock shall
no longer be outstanding, and all rights with respect to such shares shall automatically cease and
terminate.
(g)Expenses. Subject to any other arrangement or agreement among the Company
and the Member, each party hereto shall bear their own expenses in connection with the
consummation of any Exchange, whether or not any such Exchange is ultimately consummated,
except that Pubco shall bear any transfer taxes, stamp taxes or duties, or other similar taxes in
connection with, or arising by reason of, any Exchange; provided, however, that if any shares of
Class A Common Stock are to be delivered in a name other than that of the Member (or The
Depository Trust Company or its nominee for the account of a participant of The Depository
Trust Company that will hold the shares for the account of the Member) or a direct or indirect
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equityholder of the Member or the Cash Payment is to be paid to a Person other than the Member
or a direct or indirect equityholder of the Member, then the Member or the Person in whose name
such shares are to be delivered or to whom the Cash Payment is to be paid shall pay to Pubco the
amount of any transfer taxes, stamp taxes or duties, or other similar taxes in connection with, or
arising by reason of, such Exchange or shall establish to the reasonable satisfaction of Pubco that
such tax has been paid or is not payable.
Section 2.2Adjustment.
The Exchange Rate shall be adjusted accordingly if there is: (a) any subdivision (by any stock or
unit split, stock or unit dividend or distribution, reclassification, reorganization, recapitalization or
otherwise) or combination (by reverse stock or unit split, reclassification, reorganization, recapitalization
or otherwise) of the shares of Class B Common Stock or Series B Units that is not accompanied by a
substantively identical subdivision or combination of the Class A Common Stock; or (b) any subdivision
(by any stock or unit split, stock or unit dividend or distribution, reclassification, reorganization,
recapitalization or otherwise) or combination (by reverse stock or unit split, reclassification,
reorganization, recapitalization or otherwise) of the shares of Class A Common Stock that is not
accompanied by a substantively identical subdivision or combination of the shares of Class B Common
Stock or Series B Units. To the extent not reflected in an adjustment to the Exchange Rate, if there is any
reclassification, reorganization, recapitalization or other similar transaction in which the Class A
Common Stock is converted or changed or exchanged into or for another security, securities or other
property, then upon any subsequent Exchange, the Member shall be entitled to receive the amount of such
security, securities or other property that the Member would have received if such Exchange had occurred
immediately prior to the effective date of such reclassification, reorganization, recapitalization or other
similar transaction, taking into account any adjustment as a result of any subdivision (by any split,
distribution or dividend, reclassification, reorganization, recapitalization or otherwise) or combination (by
reverse split, reclassification, recapitalization or otherwise) of such security, securities or other property
that occurs after the effective time of such reclassification, reorganization, recapitalization or other similar
transaction. For the avoidance of doubt, if there is any reclassification, reorganization, recapitalization or
other similar transaction in which the Class A Common Stock is converted or changed or exchanged into
or for another security, securities or other property, this Section 2.2 shall continue to be applicable,
mutatis mutandis, with respect to such security or other property.
Section 2.3Class A Common Stock to be Issued.
(a)Pubco shall at all times reserve and keep available out of its authorized but
unissued Class A Common Stock, solely for the purpose of issuance upon an Exchange, such
number of shares of Class A Common Stock as shall be sufficient to effect the conversion of all
outstanding Exchangeable Units; provided, however, that nothing contained herein shall be
construed to preclude Pubco from satisfying its obligations in respect of any such Exchange by
delivery of unencumbered purchased shares of Class A Common Stock (which may or may not
be held in the treasury of Pubco or any subsidiary thereof).
(b)Pubco has taken and will take all such steps as may be required to cause to
qualify for exemption under Rule 16b-3(d) or (e), as applicable, under the Exchange Act, and be
exempt for purposes of Section 16(b) under the Exchange Act, any acquisitions or dispositions of
equity securities of Pubco (including derivative securities with respect thereto) and any securities
that may be deemed to be equity securities or derivative securities of Pubco for such purposes that
result from the transactions contemplated by this Agreement, by each director or officer of Pubco
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(including directors-by-deputization) who may reasonably be expected to be subject to the
reporting requirements of Section 16(a) of the Exchange Act with respect to Pubco upon the
registration of any class of equity security of Pubco pursuant to Section 12 of the Exchange Act
(with the authorizing resolutions specifying the name of each such officer or director whose
acquisition or disposition of securities is to be exempted and the number of securities that may be
acquired and disposed of by each such Person pursuant to this Agreement).
(c)If any Takeover Law or other similar law or regulation becomes or is deemed to
become applicable to this Agreement or any of the transactions contemplated hereby, Pubco shall
use its reasonable best efforts to render such law or regulation inapplicable to all of the foregoing.
(d)Pubco covenants that all shares of Class A Common Stock issued upon an
Exchange will, upon issuance, be validly issued, fully paid and non-assessable and not subject to
any preemptive right of stockholders of Pubco or to any right of first refusal or other right in
favor of any Person.
Section 2.4Withholding; Certification of Non-Foreign Status.
(a)If Pubco or the Company shall be required to withhold any amounts by reason of
any federal, state, local or foreign tax rules or regulations in respect of any Exchange, Pubco or
the Company, as the case may be, shall be entitled to take such action as it deems appropriate in
order to ensure compliance with such withholding requirements, including, at its option,
withholding shares of Class A Common Stock with a fair market value equal to the minimum
amount of any taxes that Pubco, Blocker or the Company, as the case may be, may be required to
withhold with respect to such Exchange. To the extent that amounts are (or property is) so
withheld and paid over to the appropriate taxing authority, such withheld amounts (or property)
shall be treated for all purposes of this Agreement as having been paid (or delivered) to the
Member.
(b)Notwithstanding anything to the contrary herein, each of Pubco, Blocker and the
Company may, in its discretion, require that the Member deliver to Pubco, Blocker or the
Company, as the case may be, a duly completed and executed IRS Form W-9 prior to an
Exchange. In the event Pubco, Blocker or the Company has required delivery of such form but
the Member does not provide such form, Pubco, Blocker or the Company, as the case may be,
shall nevertheless deliver or cause to be delivered to the Member the Class A Common Stock or
the Cash Payment in accordance with Section 2.1, but subject to withholding as provided in
Section 2.4(a).
Section 2.5Tax Treatment.
(a)The parties hereto intend to treat any Exchange consummated hereunder as a
taxable sale of the Exchangeable Units and Class B Common Stock (if any) by the Member to
Blocker for U.S. federal and applicable state and local income tax purposes except as otherwise
mutually agreed to in writing by the Member and Pubco and no party hereto shall take a position
inconsistent with such intended tax treatment on any tax return, amendment thereof or any other
communication with a taxing authority, in each case, unless otherwise required by a
“determination” within the meaning of Section 1313 of the Code.
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(b)To the extent this Agreement imposes obligations upon the Company, this
Agreement shall be treated as part of the LLC Agreement as described in Section 761 of the Code
and Treasury Regulations Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c).
Section 2.6Contribution of Pubco.
In connection with any Exchange between the Member and Blocker, Pubco shall first contribute
to Blocker the shares of Class A Common Stock or Cash Payment that the Member is entitled to receive
in such Exchange. Unless the Member has timely delivered a Retraction Notice as provided in Section
2.1(a)(vii), on the Exchange Date (to be effective immediately prior to the close of business on the
Exchange Date) (i) Pubco shall make a capital contribution to Blocker (in the form of the shares of Class
A Common Stock or the Cash Payment that the Member is entitled to receive in such Exchange) required
under this Section 2.6, and (ii) Blocker shall transfer such shares of Class A Common Stock or Cash
Payment to the Member in exchange for such Member’s Series B Units in the Company, and (iii) in the
case of an Exchange for Class A Common Stock and/or the Cash Payment (as applicable), the Company
shall recapitalize the number of Series B Units received by Blocker into Series A Units of the Company
equal to the Exchanged Unit Amount surrendered by the Member.
Section 2.7Distributions.
No Exchange will impair the right of the Member to receive any distribution for periods ending
on or prior to the Exchange Date for such Exchange (but for which payment had not yet been made with
respect to the Exchangeable Units in question at the time the Exchange is consummated); provided that,
for purposes of this Section 2.7, the Member’s right to receive its pro rata portion of any distribution by
the Company in respect of such periods shall not be deemed impaired to the extent that the Company has
not paid Pubco its pro rata portion of such distribution prior to the consummation of the applicable
Exchange.
Section 2.8Structure of Exchange Transactions.
The parties hereto acknowledge that (a) certain direct and indirect equityholders of the Member
may from time to time desire to participate in an Exchange and (b) this Agreement is intended to permit
and facilitate such participation in an Exchange as if such direct and indirect equityholders of the Member
were a party hereto as the Member hereunder. Therefore, the parties agree (x) to enter into any transaction
or series of transactions, including related transaction documents, requested by the Member in any
manner necessary or desirable to facilitate such direct or indirect participation in an Exchange or
otherwise achieve the purposes of this Agreement and (y) that the rights of the Member set forth in this
Agreement may be assigned to any subsequent holder of Series B Units as if such holder were the
Member hereunder as and to the extent elected by the Member.
ARTICLE III
Section 3.1Representations and Warranties of Pubco.
Pubco represents and warrants that (i) it is a corporation duly incorporated and is existing and in
good standing under the laws of the State of Delaware, (ii) it has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby and to deliver the Class A Common Stock and/or Cash Payment in accordance with the terms
hereof, (iii) the execution and delivery of this Agreement by Pubco and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary corporate action on the part
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of Pubco, including all actions necessary to ensure that the acquisition of shares of Class A Common
Stock pursuant to the transactions contemplated hereby, to the fullest extent of each of Pubco’s Board of
Directors’ power and authority and to the extent permitted by law, shall not be subject to any
“moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-
takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or
the transactions contemplated hereby (collectively, “Takeover Laws”), (iv) this Agreement constitutes a
legal, valid and binding obligation of Pubco enforceable against Pubco in accordance with its terms,
except as enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally, and (v) the
execution, delivery and performance of this Agreement by Pubco and the consummation by Pubco of the
transactions contemplated hereby will not (A) result in a violation of the certificate of incorporation of
Pubco or the bylaws of Pubco, (B) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Pubco is a
party or (C) based on the representations to be made by the Member pursuant to the written election in the
form of Exhibit B attached hereto in connection with Exchanges made pursuant to the terms of the
Agreement, result in a violation of any law, rule, regulation, order, judgment or decree applicable to
Pubco or by which any property or asset of Pubco is bound or affected, except with respect to clause (B)
or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would not
reasonably be expected to have a material adverse effect on Pubco or its business, financial condition or
results of operations.
Section 3.2Representations and Warranties of the Company.
The Company represents and warrants that (i) it is a limited liability company duly formed and is
existing and in good standing under the laws of the State of Delaware, (ii) it has all requisite power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby, (iii) the execution and delivery of this Agreement by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary action on the part of the
Company, (iv) this Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors’ rights generally, (v) it is an entity treated as a partnership for U.S. federal income
tax purposes and is not classified as a “publicly traded partnership” as defined under Section 7704 of the
Code and (vi) the execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby will not (A) result in a violation
of the certificate of formation of the Company or the LLC Agreement, (B) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party or (C) result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Company or by which any property or asset of the Company is
bound or affected, except with respect to clause (B) or (C) for any conflicts, defaults, accelerations,
terminations, cancellations or violations that would not reasonably be expected to have a material adverse
effect on the Company or its business, financial condition or results of operations.
Section 3.3Representations and Warranties of the Blocker.
Blocker represents and warrants that (i) it is a corporation duly incorporated and is existing and in
good standing under the laws of the State of Delaware, (ii) it is a wholly owned subsidiary of Pubco, (iii)
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it has all requisite corporate power and authority to enter into and perform this Agreement and to
consummate the transactions contemplated hereby, (iv) the execution and delivery of this Agreement by
Blocker and the consummation by it of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Blocker, (v) this Agreement constitutes a legal, valid and
binding obligation of Blocker enforceable against Blocker in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or limiting creditors’ rights generally and (vi) the execution,
delivery and performance of this Agreement by Blocker and the consummation by Blocker of the
transactions contemplated hereby will not (A) result in a violation of the certificate of incorporation of
Blocker or the bylaws of Blocker, (B) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Blocker is a
party or (C) result in a violation of any law, rule, regulation, order, judgment or decree applicable to
Blocker or by which any property or asset of Blocker is bound or affected, except with respect to clause
(B) or (C) for any conflicts, defaults, accelerations, terminations, cancellations or violations that would
not reasonably be expected to have a material adverse effect on Blocker or its business, financial
condition or results of operations.
Section 3.4Representations and Warranties of the Member.
The Member represents and warrants that (i) it is a limited liability company duly formed and is
existing and in good standing under the laws of the State of Delaware, (ii) it has all requisite power and
authority to enter into and perform this Agreement and to consummate the transactions contemplated
hereby, (iii) the execution and delivery of this Agreement by the Member and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary action on the part of the
Member, (iv) this Agreement constitutes a legal, valid and binding obligation of the Member enforceable
against the Member in accordance with its terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or
limiting creditors’ rights generally and (v) the execution, delivery and performance of this Agreement by
the Member and the consummation by the Member of the transactions contemplated hereby will not (A)
result in a violation of the certificate of formation or the limited liability company agreement of the
Member, (B) conflict with, or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Member is a party or (C) result in a
violation of any law, rule, regulation, order, judgment or decree applicable to the Member or by which
any property or asset of the Member is bound or affected, except with respect to clause (B) or (C) for any
conflicts, defaults, accelerations, terminations, cancellations or violations that would not in any material
respect result in the unenforceability against the Member of this Agreement.
ARTICLE IV
Section 4.1Notices.
All notices, demands or other communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be deemed to have been given or made when
(a) delivered personally to the recipient, (b) delivered by means of electronic mail if emailed on a
Business Day, and otherwise on the next Business Day, or (c) one (1) Business Day after being sent to the
recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other
communications shall be sent to the address for such recipient set forth in the Company’s books and
13
records (or below, with respect to Pubco), or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending party.
If to the Company, the Member or Pubco:
c/o Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Chief Executive Officer
E-mail: ****
with a copy (which shall not constitute notice to the Company, the Member or Pubco) to:
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Robert M. Hayward, P.C.; Robert E. Goedert, P.C.
E-mail: ****; ****
Section 4.2Permitted Transferees.
To the extent that the Member (or an applicable Permitted Transferee of the Member) validly
transfers after the date hereof any or all of its  Series B Units and corresponding shares of Class B
Common Stock after taking into account the Exchange Rate, to a Permitted Transferee of such Person or
to any other Person in a transaction not in contravention of, and in accordance with, the LLC Agreement,
then the transferee thereof shall have the right to execute and deliver a joinder to this Agreement, in the
form attached hereto as Exhibit C. Upon execution of any such joinder, such transferee shall, with respect
to such transferred Series B Units and shares of Class B Common Stock, be entitled to all of the rights
and bound by each of the obligations applicable to the relevant transferor hereunder; provided that the
transferor shall remain entitled to all of the rights and bound by each of the obligations with respect to
Series B Units and shares of Class B Common Stock that were not so transferred.
Section 4.3Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other provisions
hereof. If any provision of this Agreement, or the application thereof to any Person or entity or any
circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement
and the application of such provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 4.4Counterparts.
This Agreement and any amendments may be executed simultaneously in two or more
counterparts and delivered via facsimile or .pdf, each of which shall be deemed an original and all of
14
which, when taken together, shall constitute one and the same document. The signature of any party to
any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.
Section 4.5Entire Agreement.
This Agreement, together with the LLC Agreement and the Tax Receivable Agreement and the
other agreements and instruments referenced herein and therein, (a) constitutes the entire agreement and
supersedes all other prior agreements, both written and oral, among the parties with respect to the subject
matter hereof and (b) is not intended to confer upon any Person, other than the parties hereto and their
Permitted Transferees, any rights or remedies hereunder.
Section 4.6Further Assurances.
Each party hereto shall execute, deliver, acknowledge and file such other documents and take
such further actions as may be reasonably requested from time to time by any other party hereto to give
effect to and carry out the transactions contemplated herein.
Section 4.7Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the
State of Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
Section 4.8Consent to Jurisdiction.
Each party hereto irrevocably submits to the exclusive jurisdiction of the United States District
Court for the State of Delaware and the state courts of the State of Delaware for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each
party hereto further agrees that service of any process, summons, notice or document by United States
certified or registered mail (in each such case, prepaid return receipt requested) to such party’s respective
address set forth in Section 4.1 or such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party shall be effective service of
process in any action, suit or proceeding in Delaware with respect to any matters to which it has
submitted to jurisdiction as set forth above in the immediately preceding sentence. Each party hereto
irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contemplated hereby in the United States
District Court for the State of Delaware or the state courts of the State of Delaware and hereby
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in such court has been brought in an inconvenient forum.
Section 4.9Waiver of Jury Trial.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO
APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
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OF ARBITRATION, EACH PARTY TO THIS AGREEMENT (INCLUDING THE COMPANY)
HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES
HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED
AMONG THE PARTIES HEREUNDER.
Section 4.10Amendments.
The provisions of this Agreement may be amended only by the affirmative vote or written
consent of each of the parties hereto. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by
law.
Section 4.11Assignment.
Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties; provided, that nothing herein shall
restrict the Member from assigning any of its rights or obligations hereunder to any direct or indirect
equityholder of the Member. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective successors, assigns and
Permitted Transferees.
Section 4.12Specific Enforcement.
The parties hereto acknowledge that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this
Agreement, without posting any bond, and in addition to all other remedies that may be available, shall be
entitled to equitable relief in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy that may then be available.
[Signature Pages to Follow]
Signature Page to Exchange Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized representatives as of the day and year first above written.
COMPANY
ACCELEVATION HOLDINGS LLC
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title:  Chief Executive Officer
PUBCO
ACCELEVATION HOLDINGS CORP.
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title:  Chief Executive Officer
MEMBER
ACCELEVATION INVESTMENT HOLDINGS LLC
By:
/s/ Matthew Boyd
Name: Matthew Boyd
Title: President
BLOCKER
INSTOR BLOCKER, INC.
By:
/s/ Michael Rubiera
Name: Michael Rubiera
Title:  Chief Executive Officer
A-1
Exhibit A
Immediately Following IPO
Number of Series B
Units Owned
Number of Shares of
Class B Common Stock
Owned
Name of Member
Accelevation Investment Holdings, LLC
116,965,529
116,965,529
B-1
Exhibit B
Form of Exchange Notice
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention: Chief Executive Officer
Email: ****
Reference is hereby made to the Exchange Agreement, dated as of September 30, 2026 (as
amended from time to time, the “Exchange Agreement”), by and among Accelevation Holdings Corp., a
Delaware corporation (“Pubco”), Instor Blocker, Inc., a Delaware Corporation (“Blocker”), Accelevation
Holdings LLC, a Delaware limited liability company (the “Company”), and Accelevation Investment
Holdings LLC, a Delaware limited liability company (the “Member”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Exchange Agreement.
The Member hereby transfers to Blocker effective as of the Exchange Date, the number of
Exchangeable Units in Exchange for either shares of Class A Common Stock to be issued in its name or,
at the option of Pubco, the Cash Payment payable to the account set forth below, in accordance with the
terms of the Exchange Agreement.
Number of Exchangeable Units to be Exchanged:               
Number of shares of Class B Common Stock to be Exchanged:               
If Pubco elects a Cash Payment:
Account Number:               
Legal Name of Account Holder:               
The Member hereby represents and warrants that: (i) it is a limited liability company duly formed
and is existing and in good standing under the laws of the State of Delaware; (ii) it has all requisite power
and authority to enter into this Exchange Notice and to perform the Member’s obligations hereunder; (iii)
the execution and delivery of this Exchange Notice by the Member and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of the
Member; (iv) this Exchange Notice constitutes a legal, valid and binding obligation of the Member
enforceable against the Member in accordance with its terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors’ rights generally; (v) the Exchangeable Units and shares of Class B Common Stock
subject to this Exchange Notice are being transferred to Pubco (or the Company, if applicable) free and
clear of any Liens; (vi) no consent, approval, authorization, order, registration or qualification of any third
party or with any court or governmental agency or body having jurisdiction over the Member, the
Exchanged Units or shares of Class B Common Stock subject to this Exchange Notice is required to be
obtained by the Member for the transfer of such Exchanged Units or shares of Class B Common Stock to
Pubco; and (vii) the Member is either not currently in possession of material non-public information
concerning Pubco or will not be in possession of such material non-public information at the time the
shares of Class A Common Stock are sold by the undersigned in any public sale.
B-2
The Member hereby irrevocably constitutes and appoints any officer of Pubco, Pubco or the
Company as the attorney of the undersigned, with full power of substitution and resubstitution in the
premises, to do any and all things and to take any and all actions that may be necessary to transfer to
Pubco (or the Company, if applicable) the Exchanged Units and shares of Class B Common Stock subject
to this Exchange Notice and to deliver to the Member the shares of Class A Common Stock or Cash
Payment to be delivered in exchange therefor.
IN WITNESS WHEREOF, the Member, by authority duly given, has caused this Exchange
Notice to be executed and delivered by the undersigned.
ACCELEVATION INVESTMENT HOLDINGS, LLC
By:
Name:
Title:
Dated:
C-1
Exhibit C
Form of Joinder
This Joinder (“Joinder”) is a joinder agreement to the Exchange Agreement, dated as of
September 30, 2026 (as amended from time to time, the “Exchange Agreement”), by and among
Accelevation Holdings Corp., a Delaware corporation (“Pubco”), Instor Blocker, Inc., a Delaware
Corporation (“Blocker”), Accelevation Holdings LLC, a Delaware limited liability company (the
“Company”), and Accelevation Investment Holdings LLC, a Delaware limited liability company (the
“Member”). Capitalized terms used but not defined herein shall have the meanings given to them in the
Exchange Agreement.
The Company, Pubco, Blocker, and the undersigned agree that all questions concerning the
construction, validity and interpretation of this Joinder shall be governed by, and construed in accordance
with, the law of the State of Delaware, without giving effect to any choice or conflict of law provision or
rule, notwithstanding that public policy in Delaware or any other forum jurisdiction might indicate that
the laws of that or any other jurisdiction should otherwise apply based on contacts with such state or
otherwise. In the event of any conflict between this Joinder and the Exchange Agreement, the terms of
this Joinder shall control.
The undersigned, having acquired Series B Units and shares of Class B Common Stock, hereby
joins and enters into the Exchange Agreement. By signing and returning this Joinder to the Company,
Pubco, and Blocker, the undersigned (i) accepts and agrees to be bound by and subject to all of the terms
and conditions of and agreements of the Member contained in the Exchange Agreement, with all
attendant rights, duties and obligations of the Member thereunder and (ii) makes each of the
representations and warranties of the Member set forth in Section 3.3 of the Exchange Agreement as fully
as if such representations and warranties were set forth herein. The parties to the Exchange Agreement
shall treat the execution and delivery hereof by the undersigned as the execution and delivery of the
Exchange Agreement by the undersigned and, upon receipt of this Joinder by the Company, Pubco, and
Blocker, the signature of the undersigned set forth below shall constitute a counterpart signature to the
signature page of the Agreement.
[●]
Name:
Title:
Dated:
Address for Notice:               
EX-10.5 10 exhibit105-8xkxformofindem.htm EX-10.5 Exhibit 10.5 - 8-K - Form of Indem.
1 Note to Draft: Bracketed language to be included for officers and non-Olympus affiliated directors.
2 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
Exhibit 10.5
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into
as of [       ], 202[       ], between Accelevation Holdings Corp., a Delaware corporation (the
“Company”), and [        ] (the “Indemnitee”). Capitalized terms used but not otherwise defined
herein shall have the meaning set forth in Section 14 hereof.
WHEREAS, highly competent persons have become more reluctant to serve corporations
as directors or officers or in other capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Amended and Restated Bylaws of the Company (as amended, restated,
modified and/or supplemented from to time, the “Bylaws”) require indemnification of the
directors and officers of the Company;
WHEREAS, the certificate of incorporation of the Company (as amended, restated,
modified and/or supplemented from to time, the “Charter”), the Bylaws and the General
Corporation Law of the State of Delaware (the “DGCL”) expressly contemplate that contracts
may be entered into between the Company and members of the Board of Directors of the
Company (the “Board”), officers of the Company and other persons with respect to
indemnification and advancement of Expenses;
WHEREAS, the uncertainties relating to insurance and indemnification have increased
the difficulty of attracting and retaining directors and officers;
WHEREAS, the Board has determined that the increased difficulty in attracting and
retaining directors and officers is detrimental to the best interests of the Company and its
stockholders and that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company to indemnify, and
to advance Expenses on behalf of, the Company’s directors and officers to the Fullest Extent
Permitted By Applicable Law; [and]1
[WHEREAS, the Indemnitee may have certain rights to indemnification, advancement of
Expenses and/or insurance provided by Olympus Partners, LP, which the Indemnitee, the
Company and Olympus Partners, LP intend to be secondary to the primary obligation of the
Company to indemnify the Indemnitee as provided herein, with the Company’s acknowledgment
of and agreement to the foregoing being a material condition to the Indemnitee’s willingness to
serve as a director and/or officer of the Company; and]2
2
WHEREAS, the Indemnitee may not be willing to serve or continue to serve as an officer
or director without adequate protection, and the Company desires the Indemnitee to serve or
continue to serve in such capacity.
NOW, THEREFORE, each party hereto, intending to be legally bound hereby, agrees as
follows:
1.Indemnity of the Indemnitee. On the terms and subject to the conditions set forth in this
Agreement, the Company hereby agrees to hold harmless and indemnify the Indemnitee
to the Fullest Extent Permitted By Applicable Law. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a)Proceedings Other Than Proceedings by or in the Right of the Company. The
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 1(a) if the Indemnitee has been or is, or is threatened to be made, a party
to or participant in, or otherwise becomes involved in, any Proceeding other than
a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), the
Indemnitee shall be indemnified to the Fullest Extent Permitted By Applicable
Law against all Losses and Expenses actually and reasonably incurred by the
Indemnitee or on the Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal Proceeding, had no
reasonable cause to believe the Indemnitee’s conduct was unlawful.
(b)Proceedings by or in the Right of the Company. The Indemnitee shall be entitled
to the rights of indemnification provided in this Section 1(b) if the Indemnitee has
been or is, or is threatened to be made, a party to or participant in, or otherwise
becomes involved in, any Proceeding brought by or in the right of the Company.
Pursuant to this Section 1(b), the Indemnitee shall be indemnified to the Fullest
Extent Permitted By Applicable Law against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with
such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, if applicable
law so provides, no indemnification against such Expenses shall be made in
respect of any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged to be liable to the Company unless and only
to the extent that the Chancery Court of the State of Delaware (the “Delaware
Court”) or the court in which such Proceeding was brought shall determine that
the Indemnitee is fairly and reasonably entitled to such indemnification.
(c)Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement (other than Section 9), to
the extent that the Indemnitee is successful, on the merits or otherwise, in defense
of any Proceeding, the Indemnitee shall be indemnified to the Fullest Extent
3
Permitted By Applicable Law against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection
therewith. If the Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by the
Indemnitee, or on the Indemnitee’s behalf, in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 1(c) and without
limitation, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, on substantive or procedural grounds, shall
be deemed to be a successful result as to such claim, issue or matter.
2.Additional Indemnity. Notwithstanding any limitations in Section 1 of this Agreement,
the Company shall indemnify the Indemnitee to the Fullest Extent Permitted By
Applicable Law if the Indemnitee is, or is threatened to be made, a party to or a
participant in any Proceeding (including a Proceeding by or in the right of the Company
to procure a judgment in its favor) for all Losses and Expenses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s behalf.
3.Contribution.
(a)Whether or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any threatened, pending or completed Proceeding in which
the Company is jointly liable with the Indemnitee (or would be if joined in such
Proceeding), to the Fullest Extent Permitted By Applicable Law, the Company
shall pay, in the first instance, the entire amount of any judgment or settlement of
such Proceeding without requiring the Indemnitee to contribute to such payment
and the Company hereby waives and relinquishes any right of contribution it may
have against the Indemnitee. The Company shall not enter into any settlement of
any Proceeding in which the Company is jointly liable with the Indemnitee (or
would be if joined in such Proceeding) unless such settlement (i) provides for a
full and final release of all claims asserted against the Indemnitee and (ii) does not
impose any Loss, Expense or limitation on the Indemnitee.
(b)Without diminishing or impairing the obligations of the Company set forth in the
preceding subsection, if, for any reason, the Indemnitee shall elect or be required
to pay all or any portion of any judgment or settlement in any threatened, pending
or completed Proceeding in which the Company is jointly liable with the
Indemnitee (or would be if joined in such Proceeding), to the Fullest Extent
Permitted By Applicable Law, the Company shall contribute to the amount of
Losses and Expenses actually and reasonably incurred and paid or payable by the
Indemnitee in proportion to the relative benefits received by the Company and all
officers, directors or employees of the Company, other than the Indemnitee, who
are jointly liable with the Indemnitee (or would be if joined in such Proceeding),
on the one hand, and the Indemnitee, on the other hand, from the transaction or
4
events from which such Proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company, other than the
Indemnitee, who are jointly liable with the Indemnitee (or would be if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other hand, in
connection with the transaction or events that resulted in such Losses or Expenses,
as well as any other equitable considerations which applicable law may require to
be considered. The relative fault of the Company and all officers, directors or
employees of the Company, other than the Indemnitee, who are jointly liable with
the Indemnitee (or would be if joined in such Proceeding), on the one hand, and
the Indemnitee, on the other hand, shall be determined by reference to, among
other things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or passive.
(c)To the Fullest Extent Permitted By Applicable Law, the Company hereby agrees
to fully indemnify and hold the Indemnitee harmless from any claims of
contribution that may be brought by officers, directors or employees of the
Company, other than the Indemnitee, who may be jointly liable with the
Indemnitee.
(d)To the Fullest Extent Permitted By Applicable Law, if the indemnification
provided for in this Agreement is unavailable to the Indemnitee for any reason
whatsoever, the Company, in lieu of indemnifying the Indemnitee, shall
contribute to the amount incurred by the Indemnitee, whether for Losses and/or
for Expenses, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in light
of all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and the Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding, and/or (ii) the relative fault
of the Company (and its directors, officers, employees and agents) and the
Indemnitee in connection with such event(s) and/or transaction(s).
4.Indemnification for Expenses of a Witness. Notwithstanding any other provision of this
Agreement (other than Section 9), to the Fullest Extent Permitted By Applicable Law and
to the extent that the Indemnitee is a witness, or is made (or asked) to respond to
discovery requests, in any Proceeding to which the Indemnitee is not a party, the
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by
the Indemnitee, or on the Indemnitee’s behalf, in connection therewith.
5.Advancement of Expenses. Notwithstanding any other provision of this Agreement, the
Company shall advance, to the Fullest Extent Permitted By Applicable Law, all Expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding within 30
days after the receipt by the Company of a statement or statements from the Indemnitee
5
requesting such advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by the Indemnitee. The Indemnitee’s execution and delivery to the
Company of this Agreement shall constitute an undertaking providing that the Indemnitee
undertakes to repay the amounts advanced by the Company pursuant to this Agreement,
if and only to the extent that it is ultimately determined that the Indemnitee is not entitled
to be indemnified by the Company. No other form of undertaking shall be required other
than the execution of this Agreement. Any advances and undertakings to repay pursuant
to this Agreement shall be unsecured and interest free.
6.Procedures and Presumptions for Determination of Entitlement to Indemnification. It is
the intent of this Agreement to secure for the Indemnitee rights of indemnity that are as
favorable as may be permitted under the DGCL and the public policy of the State of
Delaware. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether the Indemnitee is entitled to
indemnification under this Agreement:
(a)To obtain indemnification under this Agreement, the Indemnitee shall submit to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of
such a request for indemnification, advise the Board in writing that the Indemnitee
has requested indemnification. Notwithstanding the foregoing, any failure of the
Indemnitee to provide such a request to the Company, or to provide such a request
in a timely fashion, shall not relieve the Company of any liability that it may have
to the Indemnitee unless, and to the extent that, such failure actually and
materially prejudices the interests of the Company.
(b)Upon written request by the Indemnitee for indemnification pursuant to the first
sentence of Section 6(a) hereof, a determination with respect to the Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following four
methods, which shall be at the election of the Board: (i) by a majority vote of the
Disinterested Directors, even though less than a quorum, (ii) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum, (iii) if there are no Disinterested
Directors or if the Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to the
Indemnitee, or (iv) if so directed by the Board, by the stockholders of the
Company; provided, however, that if a Change in Control has occurred, the
determination with respect to the Indemnitee’s entitlement to indemnification
shall be made by Independent Counsel.
(c)If the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel
6
shall be selected as provided in this Section 6(c). If a Change in Control has not
occurred, the Independent Counsel shall be selected by the Board, and the
Company shall give written notice to the Indemnitee advising the Indemnitee of
the identity of the Independent Counsel so selected. The Indemnitee may, within
10 days after such written notice of selection shall have been given, deliver to the
Company a written objection to such selection; provided, however, that such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in
Section 14 of this Agreement, and the objection shall set forth with particularity
the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written objection is made
and substantiated, the Independent Counsel selected may not serve as Independent
Counsel unless and until such objection is withdrawn or a court has determined
that such objection is without merit. If a Change in Control has occurred, the
Independent Counsel shall be selected by the Indemnitee (unless the Indemnitee
requests that such selection be made by the Board, in which event the preceding
sentence shall apply) and approved by the Board (which approval shall not be
unreasonably withheld). If (i) an Independent Counsel is to make the
determination of entitlement pursuant to this Section 6, and (ii) within 20 days
after submission by the Indemnitee of a written request for indemnification
pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected
(and not objected to), either the Company or the Indemnitee may petition the
Delaware Court or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Indemnitee to the Company’s
selection of Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the court or by such other person as the court
shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 6(b)
hereof. The Company shall pay any and all reasonable fees and expenses of
Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable
fees and expenses incident to the procedures of this Section 6(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
(d)In making a determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall, to the
Fullest Extent Permitted By Applicable Law, presume that the Indemnitee is
entitled to indemnification under this Agreement, and the burden of proof and the
burden of persuasion by clear and convincing evidence to overcome this
presumption shall be on the Company. Neither the failure of the Company
(including by its directors or Independent Counsel) to have made a determination
prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that the Indemnitee has not
7
met such applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of conduct.
(e)The Indemnitee shall be deemed to have acted in good faith if the Indemnitee’s
action is based on the records or books of account of the Enterprise, including
financial statements, on information supplied to the Indemnitee by the officers of
the Enterprise in the course of their duties, on the advice of legal counsel for the
Enterprise, or on information or records given or reports made to the Enterprise
by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise. In addition, the knowledge and/or
actions, or failure to act, of any other director, officer, agent or employee of the
Enterprise shall not be imputed to the Indemnitee for purposes of determining the
right to indemnification under this Agreement. Whether or not the foregoing
provisions of this Section 6(e) are satisfied, it shall in any event be presumed that
the Indemnitee has at all times acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and the burden of proof and the burden of persuasion by clear and convincing
evidence to overcome this presumption shall be on the Company.
(f)If the person, persons or entity empowered or selected under Section 6 to
determine whether the Indemnitee is entitled to indemnification shall not have
made a determination within 60 days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall, to the
Fullest Extent Permitted By Applicable Law, be deemed to have been made and
the Indemnitee shall be entitled to such indemnification absent (i) a misstatement
by the Indemnitee of a material fact, or an omission of a material fact necessary to
make the Indemnitee’s statement not materially misleading, in connection with
the request for indemnification, (ii) a prohibition of such indemnification under
applicable law or (iii) if the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 6(b) of this Agreement;
provided, however, that such 60-day period may be extended for a reasonable
time, not to exceed an additional 30 days, if the person, persons or entity making
such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or
information relating thereto; and provided, further, that the foregoing provisions
of this Section 6(f) shall not apply if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section 6(b) of this
Agreement and if (A) within 15 days after receipt by the Company of the request
for such determination, the Board or the Disinterested Directors, if appropriate,
resolve to submit such determination to the stockholders for their consideration at
an annual meeting thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of stockholders is called
within 15 days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within 60 days after having been so called
and such determination is made thereat.
8
(g)The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the Indemnitee’s entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information that is not privileged or otherwise
protected from disclosure and that is reasonably available to the Indemnitee and
reasonably necessary to such determination. Any Independent Counsel, member
of the Board or stockholder of the Company shall act reasonably and in good faith
in making a determination regarding the Indemnitee’s entitlement to
indemnification under this Agreement. Any costs or Expenses (including
attorneys’ fees and disbursements) incurred by the Indemnitee in so cooperating
with the person, persons or entity making such determination shall be borne by
the Company (irrespective of the determination as to the Indemnitee’s entitlement
to indemnification) and the Company hereby indemnifies and agrees to hold the
Indemnitee harmless therefrom.
(h)The Company acknowledges that a settlement or other disposition of any action,
claim or Proceeding to which the Indemnitee is a party or potential party short of
final judgment may be successful on the merits or otherwise if it permits the
Indemnitee to avoid the expense, delay, distraction, disruption and uncertainty of
litigation. In the event that any action, claim or Proceeding to which the
Indemnitee is a party is resolved in any manner other than by adverse judgment
against the Indemnitee (including, without limitation, settlement of such action,
claim or Proceeding with or without payment of money or other consideration), it
shall to the Fullest Extent Permitted By Applicable Law be presumed that the
Indemnitee has been successful on the merits or otherwise in such Proceeding,
and the burden of proof and the burden of persuasion by clear and convincing
evidence to overcome this presumption shall be on the Company.
(i)The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
the Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the Company or, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that the Indemnitee’s conduct was unlawful.
7.Remedies of the Indemnitee.
(a)In the event that (i) a determination is made pursuant to Section 6 of this
Agreement that the Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement, (iii) no determination of entitlement to
indemnification is made pursuant to Section 6(b) of this Agreement within 90
days after receipt by the Company of the request for indemnification, (iv) if no
9
determination is required to be made by the Company pursuant to Section 1(c) of
this Agreement, payment of indemnification is not made pursuant to Section 1(c)
of this Agreement within 30 days after receipt by the Company of a written
request therefor or (v) payment of indemnification is not made within 30 days
after a determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 6 of this Agreement, the Indemnitee shall be entitled to an adjudication in
an appropriate court, pursuant to Section 22 of this Agreement, of the
Indemnitee’s entitlement to such indemnification, contribution or advancement of
Expenses.
(b)In the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 7 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits, and the
Indemnitee shall not be prejudiced by reason of the adverse determination under
Section 6(b). In any judicial proceeding or arbitration commenced pursuant to this
Section 7, the Indemnitee shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden of proving the
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be. If the Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 7, the Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 5 until a final determination is
made with respect to the Indemnitee’s entitlement to indemnification (as to which
all rights of appeal have been exhausted or lapsed).
(c)If a determination shall have been made pursuant to Section 6(b) of this
Agreement that the Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 7, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact, necessary to make
the Indemnitee’s misstatement not materially misleading in connection with the
application for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d)In the event that the Indemnitee, pursuant to this Section 7, incurs costs in a
judicial or arbitration proceeding or otherwise seeking to enforce the Indemnitee’s
rights under, or to recover damages for breach of, this Agreement, or to recover
under any directors’ and officers’ liability insurance policies maintained by the
Company, the Company shall, to the Fullest Extent Permitted By Applicable Law,
indemnify the Indemnitee against any and all Expenses and, if requested by the
Indemnitee, shall (within 10 days after receipt by the Company of a written
request therefor) advance, to the Fullest Extent Permitted By Applicable Law,
such Expenses to the Indemnitee that are incurred by or on behalf of the
Indemnitee in connection with any action brought by the Indemnitee for
10
indemnification or advancement of Expenses from the Company under this
Agreement or under any directors’ and officers’ liability insurance policies
maintained by the Company.
In the case of any action brought by the Indemnitee for indemnification, if the
Indemnitee (i) is wholly successful, on the merits or otherwise, on the underlying
claims, the Company shall indemnify the Indemnitee to the Fullest Extent
Permitted By Applicable Law, against all Expenses actually and reasonably
incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection
therewith, or (ii) is not wholly successful on the underlying claims but is
successful, on the merits or otherwise, as to one or more but less than all claims,
the Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf, in
connection with each successfully resolved claim.
(e)The Company agrees that it shall not assert in any judicial or arbitral proceeding
commenced pursuant to this Section 7 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(f)Notwithstanding anything in this Agreement to the contrary, no determination as
to entitlement to indemnification under this Agreement shall be required to be
made prior to the final disposition of the Proceeding.
8.Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a)The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may at any time be entitled under applicable law, the
Charter, any agreement, a vote of stockholders, a resolution of directors of the
Company, or otherwise; provided, however, that this Agreement shall supersede
and replace any rights and obligations of the Company and the Indemnitee with
respect to indemnification and the advancement of Expenses that are granted
pursuant to the Bylaws, and, for so long as this Agreement is in effect, the
Indemnitee waives any right to indemnification or advancement of Expenses from
the Company under the Bylaws that is not permitted or provided by this
Agreement. No amendment, alteration or repeal of this Agreement or of any
provision hereof shall eliminate, reduce or otherwise adversely affect any right or
protection of the Indemnitee under this Agreement with respect to any Proceeding
involving any action or omission that occurred or allegedly occurred prior to such
amendment, alteration or repeal. To the extent that a change in the DGCL,
whether by statute or judicial decision, permits greater indemnification than
would be afforded currently under the Charter, the Bylaws and this Agreement, it
is the intent of the parties hereto that the Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change, and the scope of
11
indemnification provided by this Agreement shall be automatically extended to
include such greater indemnification rights. No right or remedy herein conferred
is intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.
(b)The Company shall make commercially reasonable efforts to obtain and maintain
in effect during the entire period for which the Company is obligated to indemnify
the Indemnitee under this Agreement, one or more policies of insurance with
reputable insurance companies to provide the directors and officers of the
Company with commercially reasonable coverage for losses from wrongful acts
and omissions and to ensure the Company’s performance of its indemnification
obligations under this Agreement. The Indemnitee shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of the
coverage available for any director or officer under such policy or policies. In all
such insurance policies, the Indemnitee shall be named as an insured in such a
manner as to provide the Indemnitee with the same rights and benefits as are
accorded to the most favorably insured of the Company’s directors and officers.
At the time of the receipt of a notice of a claim pursuant to the terms hereof, the
Company shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause such
insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of
such proceeding in accordance with the terms of such policies.
(c)[The Company hereby acknowledges that the Indemnitee has certain rights to
indemnification, advancement of Expenses and/or insurance provided by
Olympus Partners. With respect to any amounts that are subject to indemnity
under this Agreement and also subject to an indemnity obligation owed by
Olympus Partners, the Company hereby agrees (i) that, as compared to Olympus
Partners, the Company is the indemnitor of first resort with respect to any rights to
indemnification provided to the Indemnitee herein (i.e., its obligations to the
Indemnitee are primary and any obligation of Olympus Partners to advance
Expenses or to provide indemnification for the same Expenses or liabilities
incurred by the Indemnitee is secondary), (ii) that the Company shall be required
to advance the full amount of Expenses incurred by the Indemnitee and shall be
liable for the full amount of all Losses and Expenses to the extent legally
permitted and as required by the terms of this Agreement and the Charter or
Bylaws of the Company (or any other agreement between the Company and the
Indemnitee), without regard to any rights the Indemnitee may have against
Olympus Partners, and (iii) that the Company irrevocably waives, relinquishes
and releases Olympus Partners from any and all claims against Olympus Partners
for contribution, subrogation or any other recovery of any kind in respect thereof.
3 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
4 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
5 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
6 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
7 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
12
The Company further agrees that no advancement or payment by Olympus
Partners on behalf of the Indemnitee with respect to any claim for which the
Indemnitee has sought indemnification from the Company shall affect the
foregoing and Olympus Partners shall have a right of contribution and/or be
subrogated to the extent of such advancement or payment to all of the rights of
recovery of the Indemnitee against the Company. The Company and the
Indemnitee agree that Olympus Partners is an express third-party beneficiary of
the terms of this Section 8(c).]3
(d)[Except as provided in Section 8(c) above, in]4 In the event of any payment under
this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of recovery of the Indemnitee [other than against Olympus
Partners)]5, who shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(e)[Except as provided in Section 8(c) above, the]6 The Company shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
(or for which advancement of Expenses is provided) hereunder if and to the extent
that the Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
9.Exception to Right of Indemnification. Notwithstanding any provision in this Agreement,
the Charter or the Bylaws, the Company shall not be obligated under this Agreement, the
Charter or the Bylaws to make any indemnity or advancement of Expenses in connection
with any claim made against the Indemnitee:
(a)for which payment has actually been made to or on behalf of the Indemnitee
under any insurance policy or other indemnity provision, except with respect to
any excess beyond the amount paid under any insurance policy or other indemnity
provision; [provided, that the foregoing shall not affect the rights of the
Indemnitee or Olympus Partners set forth in Section 8(c) above;]7 or
(b)for an accounting of profits made from the purchase and sale (or sale and
purchase) by the Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Exchange Act, or similar provisions of state statutory law or
common law; or
(c)for reimbursement to the Company of any bonus or other incentive-based or
equity-based compensation or of any profits realized by the Indemnitee from the
sale of securities of the Company, in each case as required under the Exchange
13
Act (including any such reimbursements that arise from an accounting restatement
of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, as
amended (the “Sarbanes-Oxley Act”), or Section 954 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act in connection with an accounting
restatement of the Company or the payment to the Company of profits arising
from the purchase and sale by the Indemnitee of securities in violation of
Section 306 of the Sarbanes-Oxley Act); or
(d)in connection with any Proceeding (or any part of any Proceeding) initiated by the
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by
the Indemnitee against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding (or any such part of
any Proceeding) prior to its initiation, (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law, or (iii) the Proceeding is one to enforce the
Indemnitee’s rights under this Agreement; or
(e)for reimbursement to the Company (such Proceeding, a “Clawback Proceeding”)
by the Indemnitee of any compensation pursuant to any compensation recoupment
or clawback policy adopted by the Board or the compensation committee of the
Board, including but not limited to any such policy adopted to comply with stock
exchange listing requirements implementing Section 10D of the Exchange Act (a
“Clawback Policy”).
(f)In furtherance of paragraph (e) of this Section 9, the Indemnitee hereby agrees to
abide by the terms of any Clawback Policy, including, without limitation, by
returning any compensation to the Company to the extent required by, and in a
manner permitted by, the Clawback Policy, and hereby understands and agrees
that Indemnitee shall not be entitled to any (x) indemnification for any liability
(including any amounts owed by the Indemnitee in a judgment or settlement of
any Clawback Proceeding) or Losses incurred by the Indemnitee in connection
with any Clawback Proceeding or (y) indemnification or advancement of
Expenses from the Company or any subsidiary of the Company incurred by the
Indemnitee in connection with any Clawback Proceeding; provided, however, that
if the Indemnitee is successful on the merits in the defense of any claim asserted
against the Indemnitee in a Clawback Proceeding, the Indemnitee shall be
indemnified for the Expenses that the Indemnitee reasonably incurred to defend
such claim. The Indemnitee hereby knowingly, voluntarily and intentionally
waives, and agrees not to assert any claim regarding, all indemnification,
advancement of Expenses and other rights to which the Indemnitee is now or
becomes entitled to under this Agreement, the Charter, the Bylaws, the governing
documents of each subsidiary of the Company and the DGCL, in each case to the
extent such waiver and agreement is necessary to give effect to the preceding
sentence of this paragraph. The Indemnitee agrees and acknowledges that the
compensation the Indemnitee has or will receive from the Company or any of its
8 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
14
subsidiaries constitutes fair and adequate consideration in exchange for the waiver
and agreement provided by the Indemnitee in this paragraph.
10.Duration of Agreement. All agreements and obligations of the Company contained herein
shall continue after the Indemnitee has ceased to be a director, officer, partner, trustee,
member, manager, employee, agent or fiduciary of the Company or of any other
Enterprise. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all, substantially all
or a substantial part of the business and/or assets of the Company), assigns, spouses,
heirs, executors, administrators and personal and legal representatives.
11.Security. To the extent requested by the Indemnitee and approved by the Board, the
Company may at any time and from time to time provide security to the Indemnitee for
the Company’s obligations hereunder through an irrevocable bank line of credit, funded
trust or other collateral. Any such security, once provided to the Indemnitee, may not be
revoked or released without the prior written consent of the Indemnitee.
12.[Indemnification of Olympus Partners. If (i) the Indemnitee is or was affiliated with
Olympus Partners, (ii) Olympus Partners is, or is threatened to be made, a party to or a
participant in any Proceeding, and (iii) Olympus Partners’ involvement in the Proceeding
results from any claim based on the Indemnitee’s service to the Company as a director or
other fiduciary of the Company, Olympus Partners will be entitled to indemnification and
advancement of Expenses hereunder to the same extent, and upon the same terms and
conditions, as the Indemnitee. The Company and the Indemnitee agree that Olympus
Partners is an express third-party beneficiary of the terms of this Section 12.] 8
13.Enforcement.
(a)The Company expressly confirms and agrees that it has entered into this
Agreement and assumes the obligations imposed on it hereby in order to induce
the Indemnitee to serve and to continue to serve as a director or officer of the
Company, and the Company acknowledges that the Indemnitee is relying upon
this Agreement in serving and continuing to serve as a director or officer of the
Company.
(b)This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with respect
to the subject matter hereof.
(c)The Company shall not seek from a court, or agree to, a “bar order” that would
have the effect of prohibiting or limiting the Indemnitee’s rights to receive
advancement of Expenses under this Agreement.
15
(d)The Company shall require and cause any successor (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all,
substantially all or a substantial part of the business and/or assets of the Company)
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place.
(e)The Company and the Indemnitee agree herein that a monetary remedy for breach
of this Agreement, at some later date, may be inadequate, impracticable and
difficult to prove, and further agree that such breach may cause the Indemnitee
irreparable harm. Accordingly, the parties hereto agree that the Indemnitee may
enforce this Agreement by seeking injunctive relief and/or specific performance
hereof, without any necessity of showing actual damage or irreparable harm and
that by seeking injunctive relief and/or specific performance, the Indemnitee shall
not be precluded from seeking or obtaining any other relief to which the
Indemnitee may be entitled. The Company and the Indemnitee further agree that
the Indemnitee shall be entitled to such specific performance and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertaking in
connection therewith. The Company acknowledges that in the absence of a
waiver, a bond or undertaking may be required of the Indemnitee by the court,
and the Company hereby waives any such requirement of such a bond or
undertaking.
14.Definitions. For purposes of this Agreement:
(a)“Beneficial Owner” shall have the meaning given to such term in Rule 13d-3
under the Exchange Act.
(b)“Change in Control” shall be deemed to occur upon the earliest to occur after the
date of this Agreement of any of the following events:
(i)a change in ownership or control of the Company effected through a
transaction or series of transactions (other than an offering of shares to the
general public through a registration statement filed with the U.S.
Securities and Exchange Commission or similar non-U.S. regulatory
agency) whereby any “person,” as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, any trustee or
other fiduciary holding securities under any employee benefit plan of the
Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the Company), becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company’s then-outstanding securities,
excluding for purposes herein, acquisitions pursuant to a Business
16
Combination that does not constitute a Change in Control as defined
in Section 14(b)(ii);
(ii)the consummation of a merger, reorganization or consolidation of the
Company with or into the Company or in which equity securities of the
Company are issued (each, a “Business Combination”), other than a
merger, reorganization or consolidation that would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or its direct or
indirect parent) more than 50% of the combined voting power of the
voting securities of the Company or such surviving entity (or, as
applicable, a direct or indirect parent of the Company or such surviving
entity), outstanding immediately after such merger, reorganization or
consolidation; provided, however, that a merger, reorganization or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person (other than those covered by the
exceptions in Section 14(b)(i)) acquires more than 50% of the combined
voting power of the Company’s then-outstanding securities shall not
constitute a Change in Control;
(iii)the date, within any consecutive two-year period commencing on or after
the date of this Agreement, upon which individuals who, at the beginning
of such period, constitute the Board together with any new director(s)
(other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
Section 14(b)(i), 14(b)(ii) or 14(b)(iv) of this Agreement) whose election
by the Board or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds of the directors then in office
who either were directors at the beginning of the two-year period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof;
(iv)a complete liquidation or dissolution of the Company or the
consummation of a sale or disposition by the Company of all or
substantially all of the Company’s assets other than the sale or disposition
of all or substantially all of the assets of the Company to a person or
persons who beneficially own, directly or indirectly, 50% or more of the
combined voting power of the outstanding voting securities of the
Company at the time of the sale; or
(v)the occurrence of any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated
under the Exchange Act, whether or not the Company is then subject to
17
such reporting requirement, except the completion of the Company’s
initial public offering shall not be considered a Change in Control.
Notwithstanding anything contained herein, a transaction shall not
constitute a “Change in Control” for the purposes of this definition if
(1) the Company becomes a direct or indirect wholly owned subsidiary of
a holding company and (2) the direct or indirect holders of the voting
stock of such holding company immediately following that transaction are
substantially the same as the holders of the Company’s voting stock
immediately prior to that transaction.
(c)“Corporate Status” describes the status of a person who is or was a director,
officer, partner, trustee, member, manager, employee, agent or fiduciary of the
Company or of any other Enterprise.
(d)“Disinterested Director” means a director of the Company who is not and was not
a party to the Proceeding in respect of which indemnification is sought by the
Indemnitee.
(e)“Enterprise” shall mean the Company and any corporation, partnership, joint
venture, trust, limited liability company, employee benefit plan or other enterprise
that the Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, partner, member, manager, employee, agent or fiduciary.
(f)“Exchange Act” means the Securities Exchange Act of 1934, as amended.
(g)“Expenses” shall mean all reasonable direct and indirect costs, fees and expenses
of any type or nature whatsoever and shall specifically include, without limitation,
all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and costs
of experts and other professionals, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees and
all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in, or otherwise
participating in, a Proceeding, or responding to, or objecting to, a request to
provide discovery in any Proceeding. Expenses also shall include Expenses
incurred in connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs relating to any cost
bond, supersedeas bond, or other appeal bond or its equivalent, and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, as well as all reasonable
attorneys’ fees and all other expenses incurred by or on behalf of the Indemnitee
in connection with preparing and submitting any requests or statements for
indemnification, advancement, contribution or any other right provided by this
Agreement. Expenses, however, shall not include amounts paid in settlement by
the Indemnitee or the amount of judgments or fines against the Indemnitee.
18
(h)“Fullest Extent Permitted By Applicable Law” includes, but is not limited to: (a)
to the fullest extent permitted by the applicable provision of the DGCL, or the
corresponding provision of any amendment to or replacement of the DGCL, and
(b) to the fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its directors and officers.
(i)“Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of Delaware corporation law and neither presently is, nor
in the past 5 years has been, retained to represent: (i) the Company or the
Indemnitee in any matter material to either such party (other than with respect to
matters concerning the Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the Indemnitee in
an action to determine the Indemnitee’s rights under this Agreement.
(j)“Losses” means all liabilities, judgments, fines, penalties, costs, losses, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974,
as amended from time to time, amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect of
such liabilities, losses, judgements, fines, excise taxes, penalties and costs) and
other amounts that the Indemnitee reasonably incurs and that result from, arise in
connection with or are by reason of the Indemnitee’s Corporate Status.
(k)“Proceeding” includes any threatened, pending or completed action, suit, claim,
counterclaim, cross claim, arbitration, mediation, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any other actual,
threatened or completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative or
investigative, in which the Indemnitee was, is or will be involved as a party,
potential party, non-party witness or otherwise, by reason of the Indemnitee’s
Corporate Status or by reason of any action taken by the Indemnitee or of any
inaction on the Indemnitee’s part while acting in the Indemnitee’s Corporate
Status, in each case whether or not the Indemnitee is acting or serving in any such
capacity at the time any liability or expense is incurred for which indemnification
can be provided under this Agreement, and including one pending on or before
the date of this Agreement, but excluding one initiated by an Indemnitee pursuant
to Section 7 of this Agreement to enforce the Indemnitee’s rights under this
Agreement.
(l)[“Olympus Partners” means, collectively, Olympus Partners, LP and any entity
that controls, is controlled by or under common control with Olympus Partners,
9 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
10 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
19
LP (other than the Company and any entity that is controlled by the Company)
and any investment vehicles or funds managed or controlled, directly or
indirectly, by or otherwise affiliated with Olympus Partners, LP.]9
15.Severability. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and
shall remain enforceable to the Fullest Extent Permitted By Applicable Law, (ii) such
provision or provisions shall be deemed reformed to the fullest extent necessary to
conform to applicable law and to give the maximum effect to the intent of the parties
hereto, and (iii) to the Fullest Extent Permitted By Applicable Law, the provisions of this
Agreement (including, without limitation, each portion of any section, paragraph or
sentence of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested thereby. Without limiting the generality of the
foregoing, this Agreement is intended to confer upon the Indemnitee [and Olympus
Partners]10 indemnification rights to the Fullest Extent Permitted By Applicable Law.
16.Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto.
No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
17.Notice By the Indemnitee. The Indemnitee agrees to promptly notify the Company in
writing upon being served with or otherwise receiving any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or
matter which may be subject to indemnification or advancement of Expenses covered
hereunder. The failure to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the interests of the
Company.
18.Notices. All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent
during normal business hours of the recipient, and if not so confirmed, then on the next
business day, (iii) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (iv) one day after deposit with a nationally
20
recognized overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent:
(a)To the Indemnitee at the address set forth below the Indemnitee’s signature
hereto.
(b)To the Company at:
Accelevation Holdings Corp.
9555 N. Springboro Pike, Suite 400
Miamisburg, Ohio 45342
Attention:        Michael Rubiera
E-mail:            ****
or to such other address as may have been furnished to the Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
19.Construction. Whenever required by the context, as used in this Agreement the singular
number shall include the plural, the plural shall include the singular, and all words herein
in any gender shall be deemed to include (as appropriate) the masculine, feminine and
neuter genders. References to “day” shall mean a calendar day unless expressly stated to
the contrary.
20.Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same Agreement. Counterparts may be delivered via facsimile, electronic mail (including
pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all
purposes.
21.Headings. The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
22.Governing Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. The
Company and the Indemnitee hereby irrevocably and unconditionally (i) agree that any
action or proceeding arising out of or in connection with this Agreement shall, unless the
Company consents in writing to the selection of an alternate forum, be brought only in
the Delaware Court (or, if and only if the Delaware Court lacks subject matter
jurisdiction, any state court located within the State of Delaware or, if and only if all such
state courts lack subject matter jurisdiction, the federal district court for the District of
Delaware), (ii) generally and unconditionally consent to submit to the exclusive
jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of
11 Note to Draft: Bracketed language to be included for Olympus affiliated directors.
21
or in connection with this Agreement, (iii) irrevocably appoint, to the extent such party is
not otherwise subject to service of process in the State of Delaware, The Corporation
Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801, as its agent in the State of Delaware as such party’s agent for acceptance of legal
process in connection with any such action or proceeding against such party with the
same legal force and validity as if such party had been personally served within the State
of Delaware, (iv) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware Court has been brought
in an improper or inconvenient forum.
23.[Non-Exclusive Capacities of Indemnitee. The Company acknowledges and agrees that
Indemnitee provides services to entities other than the Company. The Company further
acknowledges and agrees that Olympus Partners invests in entities other than the
Company, and may also provide financial, operational and other advisory services to such
entities in connection with such investments.]11
[SIGNATURE PAGE FOLLOWS]
[Signature Page to Indemnification Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of the day and year first written above.
ACCELEVATION HOLDINGS CORP.
By:
Name:
Title: 
INDEMNITEE
Name:
Address:
EX-10.6 11 exhibit106-8xkxomnibusplan.htm EX-10.6 Exhibit 10.6 - 8-K - Omnibus Plan
1
Exhibit 10.6
ACCELEVATION HOLDINGS CORP.
OMNIBUS INCENTIVE PLAN
ARTICLE I
PURPOSE
The purpose of this Accelevation Holdings Corp. Omnibus Incentive Plan (this “Plan”) is
to promote the success of the Company’s business for the benefit of its stockholders by enabling
the Company to offer Eligible Individuals cash and stock-based incentives in order to attract,
retain, and reward such individuals and strengthen the mutuality of interests between such
individuals and the Company’s stockholders. This Plan is effective as of the date set forth in
Article XIV.
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following terms shall have the following meanings:
2.1“Affiliate” means a corporation or other entity controlled by, controlling, or
under common control with the Company. The term “control” (including, with correlative
meaning, the terms “controlled by” and “under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause the direction of
management and policies of such Person, whether through the ownership of voting or other
securities, by contract or otherwise.
2.2“Applicable Law” means the requirements relating to the administration of
equity-based awards and the related shares under U.S. state corporate law, U.S. federal and state
securities laws, the rules or requirements of any stock exchange or quotation system on which
the shares are listed or quoted, and any other applicable laws, including tax laws, of any U.S. or
non-U.S. jurisdictions where Awards are, or will be, granted under this Plan.
2.3“Award” means any award under this Plan of any Stock Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Units, Performance Award, Other Stock-
Based Award, or Cash Award. All Awards shall be evidenced by and subject to the terms of an
Award Agreement.
2.4“Award Agreement” means the written or electronic agreement, contract,
certificate, or other instrument or document evidencing the terms and conditions of an individual
Award. Each Award Agreement shall be subject to the terms and conditions of this Plan.
2.5“Board” means the Board of Directors of the Company.
2
2.6“Cash Award” means an Award granted to an Eligible Individual pursuant to
Section 9.3 of this Plan and payable in cash at such time or times and subject to such terms and
conditions as determined by the Committee in its sole discretion.
2.7“Cause” means, unless otherwise determined by the Committee in the applicable
Award Agreement, with respect to a Participant’s Termination of Service, the following: (a) in
respect of the Participant that is not party to an employment, consulting, change in control,
severance or similar written agreement between such Participant and the Company or an
Affiliate, in each case, as approved by the Board or applicable governing body of an Affiliate of
the Company (or where there is such an agreement but it does not define “cause”), that such
Participant: (i) is convicted of, or pleads guilty or nolo contendere to, a felony or other crime
involving moral turpitude or committed any other act or omission involving misappropriation,
embezzlement, dishonesty, disloyalty, theft or fraud with respect to the Company or an Affiliate,
its property, assets, products, services or customers, suppliers or other business relations; (ii)
failed or refused to comply with a material directive from the Board or the person to whom such
Participant reports; (iii) breached any material agreement between the Participant and the
Company or an Affiliate; (iv) engaged (or prepared to engage) in any activities competitive with
the business of the Company or an Affiliate or aided or abetted a competitor, supplier, customer
or other business relation of the Company or an Affiliate to the disadvantage or detriment of the
Company or an Affiliate; (v) abused alcohol in a manner that impaired or impairs such
Participant’s ability to perform the Participant’s duties, reported to work under the influence of
alcohol or used illegal drugs (whether or not at the workplace); (vi) engaged in misconduct that
could be injurious to the business or reputation of the Company or an Affiliate, or engaged in
other conduct that could cause the Company, an Affiliate, or their direct and indirect
equityholders, directors, managers, officers, members, partners, employees, agents and
representatives public disgrace, disrepute or economic harm; (vii) breached any fiduciary duty or
engaged in any gross negligence or willful misconduct with respect to the Company or an
Affiliate; (viii) violated the Company’s code of ethics or any other material written policy of the
Company or an Affiliate that the Board determines has not been cured (if capable of being cured)
within a reasonable time after written notice thereof to such Participant; (ix) violated any law
regarding employment discrimination or sexual harassment; or (x) breached the terms of this
Plan or any other agreement between such Participant and the Company or an Affiliate that the
Board determines has not been cured (if capable of being cured) within a reasonable time after
written notice to such Participant thereof; or (b) if the Participant is party to a written
employment, consulting, change in control, severance or similar agreement between such
Participant and the Company or an Affiliate (in each case, as approved by the Board or
applicable governing body of an Affiliate of the Company) that defines “cause,” “cause” as
defined under such agreement. 
2.8“Change in Control” means and includes each of the following, unless otherwise
determined by the Committee in the applicable Award Agreement or other written agreement
with a Participant approved by the Committee:
(a)any Person (other than the Company, any trustee or other fiduciary
holding securities under any employee benefit plan of the Company, or any company owned,
3
directly or indirectly, by the stockholders of the Company in substantially the same proportions
as their ownership of the Company), becoming the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company’s then outstanding
securities, excluding for purposes herein, acquisitions pursuant to a Business Combination that
does not constitute a Change in Control as defined in Section 2.8(b);
(b)a merger, reorganization, or consolidation of the Company or in which
equity securities of the Company are issued (each, a “Business Combination”), other than a
merger, reorganization or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity or its direct or
indirect parent) more than fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity (or, as applicable, a direct or indirect parent of
the Company or such surviving entity) outstanding immediately after such merger,
reorganization or consolidation; provided, however, that a merger, reorganization or
consolidation effected to implement a recapitalization of the Company (or similar transaction) in
which no Person (other than those covered by the exceptions in Section 2.8(a)) acquires more
than 50% of the combined voting power of the Company’s then outstanding securities shall not
constitute a Change in Control;
(c)during the period of two (2) consecutive years, individuals who, at the
beginning of such period, constitute the Board together with any new director(s) (other than a
director designated by a Person who has entered into an agreement with the Company to effect a
transaction described in Sections 2.8(a) or (b)) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the two (2) year period
or whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof; or
(d)a complete liquidation or dissolution of the Company or the
consummation of a sale or disposition by the Company of all or substantially all of the
Company’s assets other than the sale or disposition of all or substantially all of the assets of the
Company to a Person or Persons who beneficially own, directly or indirectly, fifty percent (50%)
or more of the combined voting power of the outstanding voting securities of the Company at the
time of the sale.
For purposes of this Section 2.8, acquisitions or dispositions of securities of the Company by
Olympus Partners, LP, any of its respective affiliates, or any investment vehicle or fund
controlled by or managed by, or otherwise affiliated with Olympus Partners, LP shall not, in and
of themselves, constitute a Change in Control unless the applicable requirements of Section
2.8(a), (b), (c) or (d) are otherwise satisfied. Notwithstanding the foregoing, with respect to any
Award that is characterized as “nonqualified deferred compensation” within the meaning of
Section 409A of the Code, an event shall not be considered to be a Change in Control under this
Plan for purposes of payment of such Award unless such event is also a “change in ownership,” a
4
“change in effective control,” or a “change in the ownership of a substantial portion of the
assets” of the Company within the meaning of Section 409A of the Code.
2.9“Change in Control Price” means the highest price per Share paid in any
transaction related to a Change in Control as determined by the Committee in its discretion.
2.10“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to
time. Any reference to any section of the Code shall also be a reference to any successor
provision and any guidance and treasury regulation promulgated thereunder.
2.11“Committee” means any committee of the Board duly authorized by the Board to
administer this Plan; provided, however, that unless otherwise determined by the Board, the
Committee shall consist solely of two or more members of the Board who are each (a) a “non-
employee director” within the meaning of Rule 16b-3(b), and (b) “independent” under the listing
standards or rules of the securities exchange upon which the Common Stock is traded, but only
to the extent such independence is required in order to take the action at issue pursuant to such
standards or rules. If no committee is duly authorized by the Board to administer this Plan, the
term “Committee” shall be deemed to refer to the Board for all purposes under this Plan. The
Board may abolish any Committee or re-vest in itself any previously delegated authority from
time to time, and will retain the right to exercise the authority of the Committee to the extent
consistent with Applicable Law.
2.12“Common Stock” means the Class A common stock, $0.0001 par value per
share, of the Company.
2.13“Company” means Accelevation Holdings Corp., a Delaware corporation, and its
successors by operation of law.
2.14“Consultant” means any natural person who is an advisor or consultant or other
service provider to the Company or any of its Affiliates.
2.15“Detrimental Conduct” means, as determined by the Company, a Participant’s
serious misconduct or unethical behavior, including any of the following: (a) any violation by the
Participant of a restrictive covenant agreement that the Participant has entered into with the
Company or an Affiliate (covering, for example, confidentiality, non-competition, non-
solicitation, non-disparagement, etc.); (b) any conduct by the Participant that could result in the
Participant’s Termination of Service for Cause; (c) the commission of a criminal act by the
Participant, whether or not performed in the workplace, that subjects, or if generally known
would subject, the Company or an Affiliate to public ridicule or embarrassment, or other
improper or intentional conduct by the Participant causing reputational harm to the Company, an
Affiliate, or a client or former client of the Company or an Affiliate; (d) the Participant’s breach
of a fiduciary duty owed to the Company or an Affiliate or a client or former client of the
Company or an Affiliate; (e) the Participant’s intentional violation, or grossly negligent
disregard, of the Company’s or an Affiliate’s policies, rules, or procedures; or (f) the Participant
taking or maintaining trading positions that result in a need to restate financial results in a
5
subsequent reporting period or that result in a significant financial loss to the Company or an
Affiliate.
2.16“Disability” means, unless otherwise determined by the Committee in the
applicable Award Agreement, with respect to a Participant’s Termination of Service, that the
Participant is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment, after accounting for reasonable accommodations (if
applicable and required by Applicable Law); provided, however, for purposes of an Incentive
Stock Option, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of
the Code. The determination of whether an individual has a Disability shall be determined by the
Committee, and the Committee may rely on any determination that a Participant is disabled for
purposes of benefits under any long-term disability plan in which a Participant participates that is
maintained by the Company or any Affiliate.
2.17“Dividend Equivalent Rights” means a right granted to a Participant under this
Plan to receive the equivalent value (in cash or Shares) of dividends paid on Shares.
2.18“Effective Date” means the effective date of this Plan as defined in Article XIV.
2.19“Eligible Employee” means each employee of the Company or any of its
Affiliates. An employee on a leave of absence may be an Eligible Employee.
2.20“Eligible Individual” means an Eligible Employee, Non-Employee Director, or
Consultant who is designated by the Committee in its discretion as eligible to receive Awards
subject to the terms and conditions set forth herein.
2.21“Exchange Act” means the Securities Exchange Act of 1934, as amended from
time to time. Reference to a specific section of the Exchange Act or regulation thereunder shall
include such section or regulation, any valid regulation or interpretation promulgated under such
section, and any comparable provision of any future legislation or regulation amending,
supplementing, or superseding such section or regulation.
2.22“Fair Market Value” means, for purposes of this Plan, unless otherwise required
by any applicable provision of the Code or any regulations issued thereunder, as of any date and
except as provided below, the last sales price reported for the Common Stock on the applicable
date: (a) as reported on the principal national securities exchange in the United States on which it
is then traded, listed or otherwise reported or quoted or (b) if the Common Stock is not traded,
listed, or otherwise reported or quoted, the Committee shall determine in good faith the Fair
Market Value in whatever manner it considers appropriate, taking into account the requirements
of Section 409A of the Code. For purposes of the grant of any Award, the applicable date shall
be the trading day immediately prior to the date on which the Award is granted. For purposes of
the exercise of any Award, the applicable date shall be the date a notice of exercise is received by
the Committee or, if not a date on which the applicable market is open, the next day that it is
open. Notwithstanding the foregoing, with respect to any Award granted on the pricing date of
the Company’s initial public offering, the Fair Market Value shall mean the initial public
6
offering price of a Share as set forth in the Company’s final prospectus relating to its initial
public offering filed with the Securities and Exchange Commission.
2.23“Family Member” means “family member” as defined in Section A.1.(a)(5) of
the general instructions of Form S-8.
2.24“Incentive Stock Option” means any Stock Option granted to an Eligible
Employee who is an employee of the Company or its Subsidiaries under this Plan and that is
intended to be, and is designated as, an “Incentive Stock Option” within the meaning of Section
422 of the Code.
2.25“Non-Employee Director” means a director on the Board who is not an
employee of the Company.
2.26“Non-Qualified Stock Option” means any Stock Option granted under this Plan
that is not an Incentive Stock Option.
2.27“Other Stock-Based Award” means an Award granted under Article IX of this
Plan that is valued in whole or in part by reference to, or is payable in or otherwise based on,
Shares, but may be settled in the form of Shares or cash.
2.28“Participant” means an Eligible Individual to whom an Award has been granted
pursuant to this Plan.
2.29“Performance Award” means an Award granted under Article VIII of this Plan.
2.30“Performance Goals” means goals established by the Committee as
contingencies for Awards to vest and/or become exercisable or distributable.
2.31“Performance Period” means the designated period during which the
Performance Goals must be satisfied with respect to the Award to which the Performance Goals
relate.
2.32“Person” means any “person” as such term is used in Sections 13(d) and 14(d) of
the Exchange Act.
2.33“Restricted Stock” means an Award of Shares granted under Article VII of this
Plan.
2.34“Restricted Stock Unit” means an unfunded, unsecured right to receive, on the
applicable settlement date, one Share or an amount in cash or other consideration determined by
the Committee to be of equal value as of such settlement date, subject to certain vesting
conditions and other restrictions.
2.35“Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange Act as then
in effect or any successor provision.
7
2.36“Section 409A of the Code” means the nonqualified deferred compensation rules
under Section 409A of the Code and any applicable treasury regulations and other official
guidance thereunder.
2.37“Securities Act” means the Securities Act of 1933, as amended, and all rules and
regulations promulgated thereunder. Reference to a specific section of the Securities Act or
regulation thereunder shall include such section or regulation, any valid regulation or
interpretation promulgated under such section, and any comparable provision of any future
legislation or regulation amending, supplementing, or superseding such section or regulation.
2.38“Shares” means shares of Common Stock.
2.39“Stock Appreciation Right” means a stock appreciation right granted under
Article VI of this Plan.
2.40“Stock Option” or “Option” means any option to purchase Shares granted
pursuant to Article VI of this Plan.
2.41“Subsidiary” means any subsidiary corporation of the Company within the
meaning of Section 424(f) of the Code.
2.42“Ten Percent Stockholder” means a Person owning stock representing more
than ten percent (10%) of the total combined voting power of all classes of stock of the Company
or its Subsidiaries.
2.43“Termination of Service” means the termination of the applicable Participant’s
employment with, or performance of services for, the Company and its Affiliates. Unless
otherwise determined by the Committee, (a) if a Participant’s employment or services with the
Company and its Affiliates terminates but such Participant continues to provide services to the
Company and its Affiliates in a non-employee capacity, such change in status shall not be
deemed a Termination of Service with the Company and its Affiliates and (b) a Participant
employed by, or performing services for an Affiliate that ceases to be an Affiliate shall also be
deemed to have incurred a Termination of Service provided the Participant does not immediately
thereafter become an employee of the Company or another Affiliate. Notwithstanding the
foregoing provisions of this definition, with respect to any Award that constitutes a “nonqualified
deferred compensation plan” within the meaning of Section 409A of the Code, a Participant shall
not be considered to have experienced a “Termination of Service” unless the Participant
has experienced a “separation from service” within the meaning of Section 409A of the Code.
ARTICLE III
ADMINISTRATION
3.1Authority of the Committee. This Plan shall be administered by the Committee.
Subject to the terms of this Plan and Applicable Law, the Committee shall have full authority to
8
grant Awards to Eligible Individuals under this Plan. In particular, the Committee shall have the
authority to:
(a)determine whether and to what extent Awards, or any combination
thereof, are to be granted hereunder to one or more Eligible Individuals;
(b)determine the number of Shares to be covered by each Award granted
hereunder;
(c)determine the terms and conditions, not inconsistent with the terms of this
Plan, of any Award granted hereunder (including, but not limited to, the exercise or purchase
price (if any), any restriction or limitation, any vesting schedule or acceleration thereof, or any
forfeiture restrictions or waiver thereof, regarding any Award and the Shares, if any, relating
thereto, based on such factors, if any, as the Committee shall determine, in its sole discretion);
(d)determine the amount of cash to be covered by each Award granted
hereunder;
(e)determine whether, to what extent, and under what circumstances grants of
Options and other Awards under this Plan are to operate on a tandem basis and/or in conjunction
with or apart from other awards made by the Company outside of this Plan;
(f)determine whether and under what circumstances an Award may be settled
in cash, Shares, other property, or a combination of the foregoing;
(g)determine whether, to what extent and under what circumstances cash,
Shares, or other property and other amounts payable with respect to an Award under this Plan
shall be deferred either automatically or at the election of the Participant;
(h)modify, waive, amend, or adjust the terms and conditions of any Award, at
any time or from time to time, including but not limited to Performance Goals;
(i)determine whether a Stock Option is an Incentive Stock Option or Non-
Qualified Stock Option;
(j)determine whether to require a Participant, as a condition of the granting
of any Award, to not sell or otherwise dispose of Shares acquired pursuant to the exercise or
vesting of an Award for a period of time as determined by the Committee, in its sole discretion,
following the date of the acquisition of such Award or Shares;
(k)modify, extend, or renew an Award, subject to Article XI and Section
6.8(g) of this Plan; and
(l)determine how the Disability, death, retirement, authorized leave of
absence or any other change or purported change in a Participant’s status affects an Award and
the extent to which, and the period during which, the Participant, the Participant’s legal
9
representative, conservator, guardian or beneficiary may exercise rights under the Award, if
applicable.
3.2Guidelines. Subject to Article XI of this Plan, the Committee shall have the
authority to adopt, alter, and repeal such administrative rules, guidelines, and practices governing
this Plan and perform all acts, including the delegation of its responsibilities (to the extent
permitted by Applicable Law and applicable stock exchange rules), as it shall, from time to time,
deem advisable; to construe and interpret the terms and provisions of this Plan and any Award
issued under this Plan (and any agreements or sub-plans relating thereto); and to otherwise
supervise the administration of this Plan. The Committee may correct any defect, supply any
omission, or reconcile any inconsistency in this Plan or in any agreement relating thereto in the
manner and to the extent it shall deem necessary to effectuate the purpose and intent of this Plan.
The Committee may adopt special rules, sub-plans, guidelines, and provisions for persons who
are residing in or employed in, or subject to, the taxes of any domestic or foreign jurisdictions to
satisfy or accommodate applicable foreign laws or to qualify for preferred tax treatment of such
domestic or foreign jurisdictions.
3.3Decisions Final. Any decision, interpretation, or other action made or taken in
good faith by or at the direction of the Company, the Board, or the Committee (or any of its
members) arising out of or in connection with this Plan shall be within the absolute discretion of
all and each of them, as the case may be, and shall be final, binding, and conclusive on the
Company and all employees and Participants and their respective heirs, executors,
administrators, successors, and assigns.
3.4Designation of Consultants/Liability; Delegation of Authority.
(a)The Committee may employ such legal counsel, consultants, and agents as
it may deem desirable for the administration of this Plan and may rely upon any opinion received
from any such counsel or consultant and any computation received from any such consultant or
agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel,
consultant, or agent shall be paid by the Company. The Committee, its members, and any person
designated pursuant to this Section 3.4 shall not be liable for any action or determination made in
good faith with respect to this Plan. To the maximum extent permitted by Applicable Law, no
officer of the Company or member or former member of the Committee or of the Board shall be
liable for any action or determination made in good faith with respect to this Plan or any Award
granted under it.
(b)The Committee may delegate any or all of its powers and duties under this
Plan to a subcommittee of directors or to any officer of the Company, including the power to
perform administrative functions (including executing agreements or other documents on behalf
of the Committee) and grant Awards; provided, that such delegation does not (i) violate
Applicable Law, or (ii) result in the loss of an exemption under Rule 16b-3(d)(1) for Awards
granted to Participants subject to Section 16 of the Exchange Act in respect of the Company.
Upon any such delegation, all references in this Plan to the “Committee” shall be deemed to
include any subcommittee or officer of the Company to whom such powers have been delegated
by the Committee. Any such delegation shall not limit the right of such subcommittee members
10
or such an officer to receive Awards; provided, however, that such subcommittee members and
any such officer may not grant Awards to himself or herself, a member of the Board, or any
executive officer of the Company or an Affiliate, or take any action with respect to any Award
previously granted to himself or herself, a member of the Board, or any executive officer of the
Company or an Affiliate. The Committee may also designate employees or professional advisors
who are not executive officers of the Company or members of the Board to assist in
administering this Plan, provided, however, that such individuals may not be delegated the
authority to grant or modify any Awards that will, or may, be settled in Shares.
3.5Indemnification. To the maximum extent permitted by Applicable Law and to
the extent not covered by insurance directly insuring such person, each current and former officer
or employee of the Company or any of its Affiliates and member or former member of the
Committee or the Board shall be indemnified and held harmless by the Company against any
cost or expense (including reasonable fees of counsel acceptable to the Committee) or liability
(including any sum paid in settlement of a claim with the approval of the Committee), and
advanced amounts necessary to pay the foregoing at the earliest time and to the fullest extent
permitted, arising out of any act or omission to act in connection with the administration of this
Plan, except to the extent arising out of such officer’s, employee’s, member’s, or former
member’s own fraud or bad faith. Such indemnification shall be in addition to any right of
indemnification that the current or former employee, officer or member may have under
Applicable Law or under the by-laws of the Company or any of its Affiliates. Notwithstanding
anything else herein, this indemnification will not apply to the actions or determinations made by
an individual with regard to Awards granted to such individual under this Plan.
ARTICLE IV
SHARE LIMITATION
4.1Shares. The aggregate number of Shares that may be issued pursuant to this Plan
shall not exceed 17,890,813 Shares (subject to any increase or decrease pursuant to this Article
IV), which may be either authorized and unissued Shares or Shares held in or acquired for the
treasury of the Company or both. The number of Shares that may be issued pursuant to this Plan
shall be subject to an annual increase on January 1 of each calendar year beginning in 2027, and
ending and including January 1, 2036, equal to the lesser of (a) 3% of the aggregate number of
Shares and shares of Class B common stock, in each case, outstanding on December 31 of the
immediately preceding calendar year and (b) such smaller number of Shares as is determined by
the Board. The aggregate number of Shares that may be issued or used with respect to any
Incentive Stock Option shall not exceed 17,890,813 Shares (subject to any increase or decrease
pursuant to Section 4.3). Any Award under this Plan settled in cash shall not be counted against
the foregoing maximum share limitations. Notwithstanding anything to the contrary contained
herein, Shares subject to an Award under this Plan shall again be made available for issuance or
delivery under this Plan if such Shares are (i) Shares delivered, withheld or surrendered in
payment of the exercise or purchase price of an Award, (ii) Shares delivered, withheld, or
surrendered to satisfy any tax withholding obligation or (iii) Shares subject to a stock-settled
Award that expires or is canceled, forfeited, or terminated without issuance of the full number of
Shares to which the Award related.
11
4.2Substitute Awards. In connection with an entity’s merger or consolidation with
the Company or the Company’s acquisition of an entity’s property or stock, the Committee may
grant Awards in substitution for any options or other stock or stock-based awards granted before
such merger or consolidation by such entity or its affiliate (“Substitute Awards”). Substitute
Awards may be granted on such terms as the Committee deems appropriate, notwithstanding
limitations on Awards in this Plan. Substitute Awards will not count against the Shares
authorized for grant under this Plan (nor shall Shares subject to a Substitute Award be added to
the Shares available for Awards under this Plan as provided under Section 4.1 above), except that
Shares acquired by exercise of substitute Incentive Stock Options will count against the
maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock
Options under this Plan, as set forth in Section 4.1 above. Additionally, in the event that a Person
acquired by the Company or any Subsidiary or with which the Company or any Subsidiary
combines has shares available under a pre-existing plan approved by stockholders and not
adopted in contemplation of such acquisition or combination, the shares available for grants
pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the
exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or
combination to determine the consideration payable to the holders of common stock of the
entities party to such acquisition or combination) may be used for Awards under this Plan and
shall not reduce the Shares authorized for grant under this Plan (and Shares subject to such
Awards shall not be added to the Shares available for Awards under this Plan as provided under
Section 4.1 above); provided that Awards using such available shares shall not be made after the
date awards or grants could have been made under the terms of the pre-existing plan, absent the
acquisition or combination, and shall only be made to individuals who were not Eligible
Employees or Non-Employee Directors prior to such acquisition or combination.
4.3Adjustments.
(a)The existence of this Plan and the Awards granted hereunder shall not
affect in any way the right or power of the Board or the stockholders of the Company to make or
authorize (i) any adjustment, recapitalization, reorganization, or other change in the Company’s
capital structure or its business, (ii) any merger or consolidation of the Company or any Affiliate,
(iii) any issuance of bonds, debentures, or preferred or prior preference stock ahead of or
affecting the Shares, (iv) the dissolution or liquidation of the Company or any Affiliate, (v) any
sale or transfer of all or part of the assets or business of the Company or any Affiliate, or (vi) any
other corporate act or proceeding.
(b)Subject to the provisions of Section 10.1:
(i)If the Company at any time subdivides (by any split,
recapitalization or otherwise) the outstanding Shares into a greater number of Shares, or
combines (by reverse split, combination, or otherwise) its outstanding Shares into a lesser
number of Shares, then the respective exercise prices for outstanding Awards that provide for a
Participant-elected exercise and the number of Shares covered by outstanding Awards shall be
appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted
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to, or available for, Participants under this Plan; provided, that the Committee in its sole
discretion shall determine whether an adjustment is appropriate.
(ii)Excepting transactions covered by Section 4.3(b)(i), if the
Company effects any merger, consolidation, statutory exchange, spin-off, reorganization, sale or
transfer of all or substantially all the Company’s assets or business, or other corporate transaction
or event in such a manner that the Company’s outstanding Shares are converted into the right to
receive (or the holders of Common Stock are entitled to receive in exchange therefor), either
immediately or upon liquidation of the Company, securities or other property of the Company or
other entity, then, subject to the provisions of Section 10.1, (A) the aggregate number or kind of
securities that thereafter may be issued under this Plan, (B) the number or kind of securities or
other property (including cash) to be issued pursuant to Awards granted under this Plan
(including as a result of the assumption of this Plan and the obligations hereunder by a successor
entity, as applicable), or (C) the exercise or purchase price thereof, shall be appropriately
adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or
available for, Participants under this Plan.
(iii)If there shall occur any change in the capital structure of the
Company other than those covered by Section 4.3(b)(i) or 4.3(b)(ii), any conversion, any
adjustment, or any issuance of any class of securities convertible or exercisable into, or
exercisable for, any class of equity securities of the Company, then the Committee shall adjust
any Award and make such other adjustments to this Plan to prevent dilution or enlargement of
the rights granted to, or available for, Participants under this Plan.
(iv)In the event of any pending stock dividend, stock split,
combination or exchange of shares, merger, consolidation or other distribution (other than
normal cash dividends) of Company assets to stockholders, or any other extraordinary
transaction or change affecting the Shares or the Share price, including any securities offering or
other similar transaction, for administrative convenience, the Committee may refuse to permit
the exercise of any Award for up to sixty (60) days before or after such transaction.
(v)The Committee may adjust the Performance Goals applicable to
any Awards to reflect any unusual or non-recurring events and other extraordinary items, impact
of charges for restructurings, discontinued operations, and the cumulative effects of accounting
or tax changes, each as defined by generally accepted accounting principles or as identified in the
Company’s financial statements, notes to the financial statements, management’s discussion and
analysis, or other Company public filing, and any other circumstances deemed relevant.
(vi)Any such adjustment determined by the Committee pursuant to
this Section 4.3(b) shall be final, binding, and conclusive on the Company and all Participants
and their respective heirs, executors, administrators, successors, and permitted assigns. Any
adjustment to, or assumption or substitution of, an Award under this Section 4.3(b) shall be
intended to comply with the requirements of Section 409A of the Code and Treasury Regulation
§1.424-1 (and any amendments thereto), to the extent applicable. Except as expressly provided in
this Section 4.3 or in the applicable Award Agreement, a Participant shall have no additional
rights under this Plan by reason of any transaction or event described in this Section 4.3.
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4.4Annual Limit on Non-Employee Director Compensation. In each calendar year
during any part of which this Plan is in effect, a Non-Employee Director may not receive Awards
for such individual’s service on the Board that, taken together with any cash fees paid to such
Non-Employee Director during such calendar year for such individual’s service on the Board,
have a value in excess of $750,000 (calculating the value of any such Awards based on the grant
date fair value of such Awards for financial reporting purposes); provided, that (a) the
Committee may make exceptions to this limit, except that the Non-Employee Director receiving
such additional compensation may not participate in the decision to award such compensation or
in other contemporaneous decisions involving compensation for Non-Employee Directors and
(b) for any calendar year in which a Non-Employee Director (i) first commences service on the
Board, (ii) serves on a special committee of the Board, or (iii) serves as lead director or non-
executive chair of the Board, such limit shall be increased to $1,000,000; provided, further, that
the limit set forth in this Section 4.4 shall be applied without regard to Awards or other
compensation, if any, provided to a Non-Employee Director during any period in which such
individual was an employee of the Company or any Affiliate or was otherwise providing services
to the Company or to any Affiliate other than in the capacity as a Non-Employee Director.
ARTICLE V
ELIGIBILITY
5.1General Eligibility. All current and prospective Eligible Individuals are eligible
to be granted Awards. Eligibility for the grant of Awards and actual participation in this Plan
shall be determined by the Committee in its sole discretion. No Eligible Individual will
automatically be granted any Award under this Plan.
5.2Incentive Stock Options. Notwithstanding the foregoing, only Eligible
Employees who are employees of the Company or its Subsidiaries are eligible to be granted
Incentive Stock Options under this Plan. Eligibility for the grant of an Incentive Stock Option
and actual participation in this Plan shall be determined by the Committee in its sole discretion.
5.3General Requirement. The vesting and exercise of Awards granted to a
prospective Eligible Individual are conditioned upon such individual actually becoming an
Eligible Employee, Consultant, or Non-Employee Director, as applicable.
ARTICLE VI
STOCK OPTIONS; STOCK APPRECIATION RIGHTS
6.1General. Stock Options or Stock Appreciation Rights may be granted alone or in
addition to other Awards granted under this Plan. Each Stock Option granted under this Plan
shall be of one of two types: (a) an Incentive Stock Option or (b) a Non-Qualified Stock Option.
Stock Options and Stock Appreciation Rights granted under this Plan shall be evidenced by an
Award Agreement and subject to the terms, conditions and limitations in this Plan, including any
limitations applicable to Incentive Stock Options.
6.2Grants. The Committee shall have the authority to grant to any Eligible
Individual one or more Incentive Stock Options, Non-Qualified Stock Options, and/or Stock
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Appreciation Rights; provided, however, that Incentive Stock Options may only be granted to an
Eligible Employee who is an employee of the Company or its Subsidiaries. To the extent that any
Stock Option does not qualify as an Incentive Stock Option (whether because of its provisions or
the time or manner of its exercise or otherwise), such Stock Option or the portion thereof which
does not so qualify shall constitute a separate Non-Qualified Stock Option.
6.3Exercise Price. The exercise price per Share subject to a Stock Option or Stock
Appreciation Right shall be determined by the Committee at the time of grant, provided that the
per share exercise price of a Stock Option or Stock Appreciation Right shall not be less than
100% (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, 110%)
of the Fair Market Value at the time of grant. Notwithstanding the foregoing, in the case of a
Stock Option or Stock Appreciation Right that is a Substitute Award, the exercise price per Share
for such Stock Option or Stock Appreciation Right may be less than the Fair Market Value on
the date of grant; provided, that, such exercise price is determined in a manner consistent with
the provisions of Section 409A of the Code and, if applicable, Section 424(a) of the Code.
6.4Term. The term of each Stock Option or Stock Appreciation Right shall be fixed
by the Committee, provided that no Stock Option or Stock Appreciation Right shall be
exercisable more than ten (10) years (or, in the case of an Incentive Stock Option granted to a
Ten Percent Stockholder, five (5) years) after the date on which the Stock Option or Stock
Appreciation Right, as applicable, is granted.
6.5Exercisability. Unless otherwise provided by the Committee in accordance with
the provisions of this Section 6.5, Stock Options and Stock Appreciation Rights granted under
this Plan shall be exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee at the time of grant. The Committee may, but shall not be
required to, provide for an acceleration of vesting and exercisability upon the occurrence of a
specified event. Unless otherwise determined by the Committee, if the exercise of a Non-
Qualified Stock Option or Stock Appreciation Right within the permitted time periods is
prohibited because such exercise would violate the registration requirements under the Securities
Act or any other Applicable Law or the rules of any securities exchange or interdealer quotation
system, the Company’s insider trading policy (including any blackout periods) or a “lock-up”
agreement entered into in connection with the issuance of securities by the Company, then the
expiration of such Non-Qualified Stock Option or Stock Appreciation Right shall be extended
until the date that is thirty (30) days after the end of the period during which the exercise of the
Non-Qualified Stock Option or Stock Appreciation Right would be in violation of such
registration requirement or other Applicable Law or rules, blackout period or lock-up agreement,
as determined by the Committee; provided, however, that in no event shall any such extension
result in any Non-Qualified Stock Option or Stock Appreciation Right remaining exercisable
after the ten (10)-year term of the applicable Non-Qualified Stock Option or Stock Appreciation
Right.
6.6Method of Exercise. Subject to any applicable waiting period or exercisability
provisions under Section 6.5, to the extent vested, Stock Options and Stock Appreciation Rights
may be exercised in whole or in part at any time during the term of the applicable Stock Option
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or Stock Appreciation Right, by giving written notice of exercise (which may be electronic) to
the Company specifying the number of Stock Options or Stock Appreciation Rights, as
applicable, being exercised. Such notice shall be accompanied by payment in full of the exercise
price (which shall equal the product of such number of Shares to be purchased multiplied by the
applicable exercise price). The exercise price for the Stock Options may be paid upon such terms
and conditions as shall be established by the Committee and set forth in the applicable Award
Agreement. Without limiting the foregoing, the Committee may establish payment terms for the
exercise of Stock Options pursuant to which the Company may withhold a number of Shares that
otherwise would be issued to the Participant in connection with the exercise of the Stock Option
having a Fair Market Value on the date of exercise equal to the exercise price, or that permit the
Participant to deliver cash or Shares with a Fair Market Value equal to the exercise price on the
date of payment, or through a simultaneous sale through a broker of Shares acquired on exercise,
all as permitted by Applicable Law. No Shares shall be issued until payment therefor, as
provided herein, has been made or provided for. Upon the exercise of a Stock Appreciation Right
a Participant shall be entitled to receive, for each right exercised, up to, but no more than, an
amount in cash and/or Shares (as chosen by the Committee in its sole discretion) equal in value
to the excess of the Fair Market Value of one (1) Share on the date that the right is exercised over
the Fair Market Value of one (1) Share on the date that the right was awarded to the Participant.
6.7Non-Transferability. No Stock Option or Stock Appreciation Right shall be
transferable by the Participant other than by will or by the laws of descent and distribution, and
all Stock Options and Stock Appreciation Rights shall be exercisable, during the Participant’s
lifetime, only by the Participant. Notwithstanding the foregoing, the Committee may determine,
in its sole discretion, at the time of grant or thereafter that a Non-Qualified Stock Option that is
otherwise not transferable pursuant to this Section 6.7 is transferable to a Family Member of the
Participant in whole or in part and in such circumstances, and under such conditions, as specified
by the Committee. A Non-Qualified Stock Option that is transferred to a Family Member
pursuant to the preceding sentence (a) may not be subsequently transferred other than by will or
by the laws of descent and distribution and (b) remains subject to the terms of this Plan and the
applicable Award Agreement. Any Shares acquired upon the exercise of a Non-Qualified Stock
Option by a permissible transferee of a Non-Qualified Stock Option or a permissible transferee
pursuant to a transfer after the exercise of the Non-Qualified Stock Option shall be subject to the
terms of this Plan and the applicable Award Agreement.
6.8Termination. Unless otherwise determined by the Committee at grant or, if no
rights of the Participant are reduced, thereafter, subject to the provisions of the applicable Award
Agreement and this Plan, upon a Participant’s Termination of Service for any reason, Stock
Options and Stock Appreciation Rights may remain exercisable following a Participant’s
Termination of Service as follows:
(a)Termination by Death or Disability. Unless otherwise provided in the
applicable Award Agreement, or otherwise determined by the Committee at the time of grant or,
if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is
by reason of death or Disability, all Stock Options and Stock Appreciation Rights that are held
by such Participant that are vested and exercisable at the time of the Participant’s Termination of
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Service may be exercised by the Participant (or in the case of the Participant’s death, by the legal
representative of the Participant’s estate) at any time within a period of one (1) year from the
date of such Termination of Service, but in no event beyond the expiration of the stated term of
such Stock Options and Stock Appreciation Rights; provided, however, that, in the event of a
Participant’s Termination of Service by reason of Disability, if the Participant dies within such
exercise period, all unexercised Stock Options and Stock Appreciation Rights held by such
Participant shall thereafter be exercisable, to the extent to which they were exercisable at the
time of death, for a period of one (1) year from the date of such death, but in no event beyond the
expiration of the stated term of such Stock Options and/or Stock Appreciation Rights.
(b)Involuntary Termination Without Cause. Unless otherwise provided in the
applicable Award Agreement or otherwise determined by the Committee at the time of grant or,
if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is
by involuntary termination by the Company without Cause, all Stock Options and Stock
Appreciation Rights that are held by such Participant that are vested and exercisable at the time
of the Participant’s Termination of Service may be exercised by the Participant at any time
within a period of ninety (90) days from the date of such Termination of Service, but in no event
beyond the expiration of the stated term of such Stock Options or Stock Appreciation Rights.
(c)Voluntary Resignation. Unless otherwise provided in the applicable
Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights
of the Participant are reduced, thereafter, if a Participant’s Termination of Service is voluntary
(other than a voluntary termination described in Section 6.8(d) hereof), all Stock Options and
Stock Appreciation Rights that are held by such Participant that are vested and exercisable at the
time of the Participant’s Termination of Service may be exercised by the Participant at any time
within a period of thirty (30) days from the date of such Termination of Service, but in no event
beyond the expiration of the stated term of such Stock Options or Stock Appreciation Rights.
(d)Termination for Cause. Unless otherwise provided in the applicable
Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights
of the Participant are reduced, thereafter, if a Participant’s Termination of Service (i) is for Cause
or (ii) is a voluntary Termination of Service (as provided in Section 6.8(c)) after the occurrence
of an event that would be grounds for a Termination of Service for Cause, all Stock Options and
Stock Appreciation Rights, whether vested or not vested, that are held by such Participant shall
thereupon immediately terminate and expire as of the date of such Termination of Service.
(e)Unvested Stock Options and Stock Appreciation Rights. Unless otherwise
provided in the applicable Award Agreement or determined by the Committee at the time of
grant or, if no rights of the Participant are reduced, thereafter, Stock Options and Stock
Appreciation Rights that are not vested as of the date of a Participant’s Termination of Service
for any reason shall terminate and expire as of the date of such Termination of Service.
(f)Incentive Stock Option Limitations. To the extent that the aggregate Fair
Market Value (determined as of the time of grant) of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by an Eligible Employee during any calendar year
under this Plan and/or any other stock option plan of the Company or any Subsidiary exceeds
17
$100,000, such Options shall be treated as Non-Qualified Stock Options. In addition, if an
Eligible Employee does not remain employed by the Company or any Subsidiary at all times
from the time an Incentive Stock Option is granted until three (3) months prior to the date of
exercise thereof (or such other period as required by Applicable Law), such Stock Option shall
be treated as a Non-Qualified Stock Option. Should any provision of this Plan not be necessary
in order for the Stock Options to qualify as Incentive Stock Options, or should any additional
provisions be required, the Committee may amend this Plan accordingly, without the necessity of
obtaining the approval of the stockholders of the Company.
(g)Modification, Extension and Renewal of Stock Options. The Committee
may (i) modify, extend, or renew outstanding Stock Options granted under this Plan (provided
that the rights of a Participant are not reduced without such Participant’s consent and provided,
further that such action does not subject the Stock Options to Section 409A of the Code without
the consent of the Participant), and (ii) accept the surrender of outstanding Stock Options (to the
extent not theretofore exercised) and authorize the granting of new Stock Options in substitution
therefor (to the extent not theretofore exercised).
6.9Automatic Exercise. The Committee may include a provision in an Award
Agreement providing for the automatic exercise of a Non-Qualified Stock Option or Stock
Appreciation Right on a cashless basis on the last day of the term of such Option or Stock
Appreciation Right if the Participant has failed to exercise the Non-Qualified Stock Option or
Stock Appreciation Right as of such date, with respect to which the Fair Market Value of the
Shares underlying the Non-Qualified Stock Option or Stock Appreciation Right exceeds the
exercise price of such Non-Qualified Stock Option or Stock Appreciation Right on the date of
expiration of such Option or Stock Appreciation Right, subject to Section 13.4.
6.10Dividends. No dividends or Dividend Equivalent Rights shall be granted with
respect to Stock Options or Stock Appreciation Rights.
6.11Other Terms and Conditions. As the Committee shall deem appropriate, Stock
Options and Stock Appreciation Rights may be subject to additional terms and conditions or
other provisions, which shall not be inconsistent with any of the terms of this Plan.
ARTICLE VII
RESTRICTED STOCK; RESTRICTED STOCK UNITS
7.1Awards of Restricted Stock and Restricted Stock Units. Shares of Restricted
Stock and Restricted Stock Units may be granted alone or in addition to other Awards granted
under this Plan. The Committee shall determine the Eligible Individuals to whom, and the time
or times at which, grants of Restricted Stock and/or Restricted Stock Units shall be made, the
number of shares of Restricted Stock or Restricted Stock Units to be awarded, the price (if any)
to be paid by the Participant (subject to Section 7.2), the time or times within which such Awards
may be subject to forfeiture, the vesting schedule and rights to acceleration thereof, and all other
terms and conditions of the Awards. The Committee shall determine and set forth in the Award
Agreement the terms and conditions for each Award of Restricted Stock and Restricted Stock
18
Units, subject to the conditions and limitations contained in this Plan, including any vesting or
forfeiture conditions.
The Committee may condition the grant or vesting of Restricted Stock and Restricted
Stock Units upon the attainment of specified Performance Goals or such other factor as the
Committee may determine in its sole discretion.
7.2Awards and Certificates. Restricted Stock and Restricted Stock Units granted
under this Plan shall be evidenced by an Award Agreement and subject to the following terms
and conditions and shall be in such form and contain such additional terms and conditions not
inconsistent with the terms of this Plan, as the Committee shall deem desirable:
(a)Restricted Stock.
(i)Purchase Price. The purchase price of Restricted Stock
shall be fixed by the Committee. The purchase price for shares of Restricted Stock may be
zero to the extent permitted by Applicable Law, and, to the extent not so permitted, such
purchase price may not be less than par value.
(ii)Legend. Each Participant receiving Restricted Stock shall
be issued a stock certificate in respect of such shares of Restricted Stock, unless the
Committee elects to use another system, such as book entries by the Company’s transfer
agent, as evidencing ownership of shares of Restricted Stock. Such certificate shall be
registered in the name of such Participant, and shall, in addition to such legends required by
Applicable Law, bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such Restricted Stock.
(iii)Custody. If stock certificates are issued in respect of shares
of Restricted Stock, the Committee may require that any stock certificates evidencing such
shares be held in custody by the Company until the restrictions thereon shall have lapsed, and
that, as a condition of any grant of Restricted Stock, the Participant shall have delivered a
duly signed stock power or other instruments of assignment (including a power of attorney),
each endorsed in blank with a guarantee of signature if deemed necessary or appropriate by
the Company, which would permit transfer to the Company of all or a portion of the shares
subject to the Award of Restricted Stock in the event that such Award is forfeited in whole or
part.
(iv)Rights as a Stockholder. Except as provided in Section
7.3(a) and this Section 7.2(a) or as otherwise determined by the Committee in an Award
Agreement, the Participant shall have, with respect to the shares of Restricted Stock, all of
the rights of a holder of Shares, including, without limitation, the right to receive dividends,
the right to vote such shares, and, subject to and conditioned upon the full vesting of shares
of Restricted Stock, the right to tender such shares; provided that the Award Agreement shall
specify on what terms and conditions the applicable Participant shall be entitled to dividends
payable on the Shares.
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(v)Lapse of Restrictions. If and when the Restriction Period
expires without a prior forfeiture of the Restricted Stock, the certificates for such Shares shall
be delivered to the Participant. All legends shall be removed from said certificates at the time
of delivery to the Participant, except as otherwise required by Applicable Law or other
limitations imposed by the Committee.
(b)Restricted Stock Units.
(i)Settlement. The Committee may provide that settlement of
Restricted Stock Units will occur upon or as soon as reasonably practical after the Restricted
Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s
election, in a manner intended to comply with Section 409A of the Code.
(ii)Rights as a Stockholder. A Participant will have no rights
of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and until
Shares are delivered in settlement of the Restricted Stock Units.
(iii)Dividend Equivalent Rights. If the Committee so provides,
a grant of Restricted Stock Units may provide a Participant with the right to receive Dividend
Equivalent Rights. Dividend Equivalent Rights may be paid currently or credited to an
account for the Participant, settled in cash or Shares, and subject to the same restrictions on
transferability and forfeitability as the Restricted Stock Units with respect to which the
Dividend Equivalent Rights are granted and subject to other terms and conditions as set forth
in the Award Agreement.
7.3Restrictions and Conditions.
(a)Restriction Period.
(i)The Participant shall not be permitted to transfer shares of
Restricted Stock awarded under this Plan or vest in Restricted Stock Units during the period or
periods set by the Committee (the “Restriction Period”) commencing on the date of such Award,
as set forth in the applicable Award Agreement and such agreement shall set forth a vesting
schedule and any event that would accelerate vesting of the Restricted Stock and/or Restricted
Stock Units. Within these limits, based on service, attainment of Performance Goals pursuant to
Section 7.3(a)(ii), and/or such other factors or criteria as the Committee may determine in its sole
discretion, the Committee may condition the grant or provide for the lapse of such restrictions in
installments in whole or in part, or may accelerate the vesting of all or any part of any Award of
Restricted Stock or Restricted Stock Units and/or waive the deferral limitations for all or any part
of any Award of Restricted Stock or Restricted Stock Units.
(ii)If the grant of shares of Restricted Stock or Restricted Stock
Units or the lapse of restrictions or vesting schedule is based on the attainment of Performance
Goals, the Committee shall establish the objective Performance Goals and the applicable vesting
percentage applicable to each Participant or class of Participants in the applicable Award
Agreement prior to the beginning of the applicable fiscal year or at such later date as otherwise
20
determined by the Committee and while the outcome of the Performance Goals are substantially
uncertain. Such Performance Goals may incorporate provisions for disregarding (or adjusting
for) changes in accounting methods, corporate transactions (including, without limitation,
dispositions and acquisitions), and other similar types of events or circumstances.
(b)Termination. Unless otherwise provided in the applicable Award
Agreement or determined by the Committee at grant or, if no rights of the Participant are
reduced, thereafter, upon a Participant’s Termination of Service for any reason during the
relevant Restriction Period, all Restricted Stock or Restricted Stock Units still subject to
restriction will be forfeited in accordance with the terms and conditions established by the
Committee at grant or thereafter.
ARTICLE VIII
PERFORMANCE AWARDS
The Committee may grant a Performance Award to a Participant payable upon the
attainment of specific Performance Goals either alone or in addition to other Awards granted
under this Plan. The Performance Goals to be achieved during the Performance Period and the
length of the Performance Period shall be determined by the Committee upon the grant of each
Performance Award. The conditions for grant or vesting and the other provisions of Performance
Awards (including, without limitation, any applicable Performance Goals) need not be the same
with respect to each Participant. Performance Awards may be paid in cash, Shares, other
property, or any combination thereof, in the sole discretion of the Committee as set forth in the
applicable Award Agreement.
ARTICLE IX
OTHER STOCK-BASED AND CASH AWARDS
9.1Other Stock-Based Awards. The Committee is authorized to grant to Eligible
Individuals Other Stock-Based Awards that are payable in, valued in whole or in part by
reference to, or otherwise based on or related to Shares, including but not limited to, Shares
awarded purely as a bonus and not subject to restrictions or conditions, Shares in payment of the
amounts due under an incentive or performance plan sponsored or maintained by the Company,
stock equivalent units, and Awards valued by reference to the book value of Shares. Other Stock-
Based Awards may be granted either alone or in addition to or in tandem with other Awards
granted under this Plan.
Subject to the provisions of this Plan, the Committee shall have authority to determine the
Eligible Individuals, to whom, and the time or times at which, such Other Stock-Based Awards
shall be made, the number of Shares to be awarded pursuant to such Awards, and all other
conditions of the Awards. The Committee may also provide for the grant of Shares under such
Awards upon the completion of a specified Performance Period. The Committee may condition
the grant or vesting of Other Stock-Based Awards upon the attainment of specified Performance
Goals as the Committee may determine, in its sole discretion.
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9.2Terms and Conditions. Other Stock-Based Awards made pursuant to this Article
IX shall be evidenced by an Award Agreement and subject to the following terms and conditions
and shall be in such form and contain such additional terms and conditions not inconsistent with
the terms of this Plan, as the Committee shall deem desirable:
(a)Non-Transferability. Subject to the applicable provisions of the Award
Agreement and this Plan, Shares subject to Other Stock-Based Awards may not be transferred
prior to the date on which the Shares are issued or, if later, the date on which any applicable
restriction, performance, or deferral period lapses.
(b)Dividends. Unless otherwise determined by the Committee at the time of
the grant of an Other Stock-Based Award, subject to the provisions of the Award Agreement and
this Plan, the recipient of an Other Stock-Based Award shall not be entitled to receive, currently
or on a deferred basis, dividends or Dividend Equivalent Rights in respect of the number of
Shares covered by the Other Stock-Based Award.
(c)Vesting. Any Other Stock-Based Award and any Shares covered by any
such Other Stock-Based Award shall vest or be forfeited to the extent so provided in the Award
Agreement, as determined by the Committee, in its sole discretion.
(d)Price. Shares under this Article IX may be issued for no cash
consideration. Shares purchased pursuant to a purchase right awarded pursuant to an Other
Stock-Based Award shall be priced, as determined by the Committee in its sole discretion.
9.3Cash Awards. The Committee may from time to time grant Cash Awards to
Eligible Individuals in such amounts, on such terms and conditions, and for such consideration,
including no consideration or such minimum consideration as may be required by Applicable
Law, as it shall determine in its sole discretion. Cash Awards may be granted subject to the
satisfaction of vesting conditions or may be awarded purely as a bonus and not subject to
restrictions or conditions, and if subject to vesting conditions, the Committee may accelerate the
vesting of such Awards at any time in its sole discretion. The grant of a Cash Award shall not
require a segregation of any of the Company’s assets for satisfaction of the Company’s payment
obligation thereunder.
ARTICLE X
CHANGE IN CONTROL PROVISIONS
10.1Benefits. In the event of a Change in Control of the Company, and except as
otherwise provided by the Committee in an Award Agreement or any applicable employment
agreement, offer letter, consulting agreement, change in control agreement, or similar agreement
in effect between the Company or an Affiliate and the Participant, a Participant’s unvested
Awards shall not vest automatically and a Participant’s Awards shall be treated in accordance
with one or more of the following methods as determined by the Committee:
(a)Awards, whether or not then vested, shall be continued, be assumed, or
have new rights substituted therefor, as determined by the Committee in a manner consistent
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with the requirements of Section 409A of the Code, and restrictions to which shares of Restricted
Stock or any other Award granted prior to the Change in Control are subject shall not lapse upon
a Change in Control and the Restricted Stock or other Award shall, where appropriate in the sole
discretion of the Committee, receive the same distribution as other Shares on such terms as
determined by the Committee; provided that the Committee may decide to award additional
Restricted Stock or other Awards in lieu of any cash distribution. Notwithstanding anything to
the contrary herein, for purposes of Incentive Stock Options, any assumed or substituted Stock
Option shall comply with the requirements of Treasury Regulation Section 1.424-1 (and any
amendment thereto).
(b)The Committee, in its sole discretion, may provide for the purchase of any
Awards by the Company for an amount of cash equal to the excess (if any) of the Change in
Control Price of the Shares covered by such Awards, over the aggregate exercise price of such
Awards; provided, however, that if the exercise price of an Option or Stock Appreciation Right
exceeds the Change in Control Price, such Award may be cancelled for no consideration.
(c)The Committee may, in its sole discretion, terminate all outstanding and
unexercised Stock Options, Stock Appreciation Rights, or any Other Stock-Based Award that
provides for a Participant-elected exercise, effective as of the date of the Change in Control, by
delivering notice of termination to each Participant at least twenty (20) days prior to the date of
consummation of the Change in Control, in which case during the period from the date on which
such notice of termination is delivered to the consummation of the Change in Control, each such
Participant shall have the right to exercise in full all of such Participant’s Awards that are then
outstanding (without regard to any limitations on exercisability otherwise contained in the Award
Agreements), but any such exercise shall be contingent on the occurrence of the Change in
Control, provided that, if the Change in Control does not take place within a specified period
after giving such notice for any reason whatsoever, the notice and exercise pursuant thereto shall
be null and void.
(d)Notwithstanding any other provision herein to the contrary, the Committee
may, in its sole discretion, provide for accelerated vesting or lapse of restrictions of an Award at
any time.
ARTICLE XI
TERMINATION OR AMENDMENT OF PLAN
Notwithstanding any other provision of this Plan, the Board or the Committee may at any
time, and from time to time, amend, in whole or in part, any or all of the provisions of this Plan
(including any amendment deemed necessary to ensure that the Company may comply with any
Applicable Law), or suspend or terminate it entirely, retroactively or otherwise; provided,
however, that, unless otherwise required by Applicable Law or specifically provided herein, the
rights of a Participant with respect to Awards granted prior to such amendment, suspension, or
termination may not be materially impaired without the consent of such Participant and,
provided, further, that without the approval of the holders of the Shares entitled to vote in
accordance with Applicable Law, no amendment may be made that would (a) increase the
aggregate number of Shares that may be issued under this Plan (except by operation of Section
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4.1); or (b) change the classification of individuals eligible to receive Awards under this Plan. In
addition, the Board or the Committee shall, without the approval of the holders of the Shares
entitled to vote in accordance with Applicable Law, have the authority to (i) amend any
outstanding Option or Stock Appreciation Right to reduce its exercise price per Share or (ii)
cancel any Option or Stock Appreciation Right in exchange for cash or another Award.
Notwithstanding anything herein to the contrary, the Board or the Committee may amend this
Plan or any Award Agreement at any time without a Participant’s consent to comply with
Applicable Law, including Section 409A of the Code. The Committee may amend the terms of
any Award theretofore granted, prospectively or retroactively, but, subject to Article IV or as
otherwise specifically provided herein, no such amendment or other action by the Committee
shall materially impair the rights of any Participant without the Participant’s consent.
ARTICLE XII
UNFUNDED STATUS OF PLAN
This Plan is intended to constitute an “unfunded” plan for incentive and deferred
compensation. With respect to any payment as to which a Participant has a fixed and vested
interest but which is not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any right that is greater than those of a general unsecured creditor
of the Company.
ARTICLE XIII
GENERAL PROVISIONS
13.1Lock-Up; Legend. The Committee may require each person receiving Shares
pursuant to a Stock Option or other Award under this Plan to represent to and agree with the
Company in writing that the Participant is acquiring the Shares without a view to distribution
thereof. The Company may, in connection with registering the offering of any Company
securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or
otherwise transferring any Shares or other Company securities during any period determined by
the underwriter or the Company. In addition to any legend required by this Plan, the certificates
for such Shares may include any legend that the Committee deems appropriate to reflect any
restrictions on transfer. All certificates for Shares delivered under this Plan shall be subject to
such stop transfer orders and other restrictions as the Committee may deem advisable under the
rules, regulations, and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Common Stock is then listed or any national securities exchange
system upon whose system the Common Stock is then quoted, and any Applicable Law, and the
Committee may cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions. If the Shares are held in book-entry form, then the book-entry will
indicate any restrictions on such Shares.
13.2Other Plans. Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder approval if such
approval is required, and such arrangements may be either generally applicable or applicable
only in specific cases.
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13.3No Right to Employment/Directorship/Consultancy. Neither this Plan nor the
grant of any Award hereunder shall give any Participant or other employee, Consultant or Non-
Employee Director any right with respect to continuance of employment, consultancy or
directorship by the Company or any Affiliate, nor shall there be a limitation in any way on the
right of the Company or any Affiliate by which an employee is employed or a Consultant or
Non-Employee Director is retained to terminate such employment, consultancy, or directorship
at any time.
13.4Withholding of Taxes. A Participant shall be required to pay to the Company or
one of its Affiliates, as applicable, or make arrangements satisfactory to the Company regarding
the payment of, any income tax, social insurance contribution or other applicable taxes that are
required to be withheld in respect of an Award. The Committee may (but is not obligated to), in
its sole discretion, permit or require a Participant to satisfy all or any portion of the applicable
taxes that are required to be withheld with respect to an Award by (a) the delivery of Shares
(which are not subject to any pledge or other security interest) that have been both held by the
Participant and vested for at least six (6) months (or such other period as established from time to
time by the Committee in order to avoid adverse accounting treatment under applicable
accounting standards) having an aggregate Fair Market Value equal to such withholding liability
(or portion thereof); (b) having the Company withhold from the Shares otherwise issuable or
deliverable to, or that would otherwise be retained by, the Participant upon the grant, exercise,
vesting, or settlement of the Award, as applicable, a number of Shares with an aggregate Fair
Market Value equal to the amount of such withholding liability; or (c) by any other means
specified in the applicable Award Agreement or otherwise determined by the Committee.
13.5Fractional Shares. No fractional Shares shall be issued or delivered pursuant to
this Plan. The Committee shall determine whether cash, additional Awards, or other securities or
property shall be used or paid in lieu of fractional Shares or whether any fractional shares should
be rounded, forfeited, or otherwise eliminated.
13.6No Assignment of Benefits. No Award or other benefit payable under this Plan
shall, except as otherwise specifically provided in this Plan or under Applicable Law or
permitted by the Committee, be transferable in any manner, and any attempt to transfer any such
benefit shall be void, and any such benefit shall not in any manner be liable for or subject to the
debts, contracts, liabilities, engagements, or torts of any person who shall be entitled to such
benefit, nor shall it be subject to attachment or legal process for or against such person.
13.7Clawbacks; Detrimental Conduct.
(a)Clawbacks. All awards, amounts, or benefits received or outstanding
under this Plan will be subject to clawback, cancellation, recoupment, rescission, payback,
reduction, or other similar action in accordance with any Company clawback or similar policy or
any Applicable Law related to such actions. A Participant’s acceptance of an Award will
constitute the Participant’s acknowledgement of and consent to the Company’s application,
implementation, and enforcement of any applicable Company clawback or similar policy that
may apply to the Participant, whether adopted before or after the Effective Date, and any
Applicable Law relating to clawback, cancellation, recoupment, rescission, payback, or reduction
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of compensation, and the Participant’s agreement that the Company may take any actions that
may be necessary to effectuate any such policy or Applicable Law, without further consideration
or action.
(b)Detrimental Conduct. Except as otherwise determined by the Committee,
notwithstanding any other term or condition of this Plan, if a Participant engages in Detrimental
Conduct, whether during or after the Participant’s service, in addition to any other penalties or
restrictions that may apply under this Plan, Applicable Law or otherwise, the Participant must
forfeit or pay to the Company the following:
(i)any and all outstanding Awards granted to the Participant,
including Awards that have become vested or exercisable;
(ii)any cash or Shares received by the Participant in
connection with this Plan within the 36-month period immediately before the date the
Company determines the Participant has engaged in Detrimental Conduct; and
(iii)the profit realized by the Participant from the sale, or other
disposition for consideration, of any Shares received by the Participant under this Plan within
the 36-month period immediately before the date the Company determines the Participant has
engaged in Detrimental Conduct.
13.8Listing and Other Conditions.
(a)Unless otherwise determined by the Committee, as long as the Common
Stock is listed on a national securities exchange or system sponsored by a national securities
association, the issuance of Shares pursuant to an Award shall be conditioned upon such Shares
being listed on such exchange or system. The Company shall have no obligation to issue such
Shares unless and until such Shares are so listed, and the right to exercise any Option or other
Award with respect to such Shares shall be suspended until such listing has been effected.
(b)If at any time counsel to the Company advises the Company that any sale
or delivery of Shares pursuant to an Award is or may in the circumstances be unlawful or result
in the imposition of excise taxes on the Company under Applicable Law, the Company shall
have no obligation to make such sale or delivery, or to make any application or to effect or to
maintain any qualification or registration under the Securities Act or otherwise, with respect to
Shares or Awards, and the right to exercise any Option or other Award shall be suspended until,
based on the advice of said counsel, such sale or delivery shall be lawful or will not result in the
imposition of excise taxes on the Company.
(c)Upon termination of any period of suspension under this Section 13.8, any
Award affected by such suspension which shall not then have expired or terminated shall be
reinstated as to all Shares available before such suspension and as to Shares which would
otherwise have become available during the period of such suspension, but no such suspension
shall extend the term of any Award.
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(d)A Participant shall be required to supply the Company with certificates,
representations, and information that the Company requests and otherwise cooperate with the
Company in obtaining any listing, registration, qualification, exemption, consent, or approval
that the Company deems necessary or appropriate.
13.9Governing Law. This Plan and actions taken in connection herewith shall be
governed and construed in accordance with the laws of the State of Delaware, without reference
to principles of conflict of laws.
13.10Construction. Wherever any words are used in this Plan in the masculine gender
they shall be construed as though they were also used in the feminine gender in all cases where
they would so apply, and wherever words are used herein in the singular form they shall be
construed as though they were also used in the plural form in all cases where they would so
apply.
13.11Other Benefits. No Award granted or paid out under this Plan shall be deemed
compensation for purposes of computing benefits under any retirement plan of the Company or
its Affiliates or affect any benefit or compensation under any other plan now or subsequently in
effect under which the availability or amount of benefits is related to the level of compensation.
13.12Costs. The Company shall bear all expenses associated with administering this
Plan, including expenses of issuing Shares pursuant to Awards hereunder.
13.13No Right to Same Benefits. The provisions of Awards need not be the same with
respect to each Participant, and such Awards to individual Participants need not be the same in
subsequent years.
13.14Death/Disability. The Committee may in its discretion require the transferee of a
Participant to supply it with written notice of the Participant’s death or Disability and to supply it
with a copy of the will (in the case of the Participant’s death) or such other evidence as the
Committee deems necessary to establish the validity of the transfer of an Award. The Committee
may also require the agreement of the transferee to be bound by all of the terms and conditions of
this Plan.
13.15Section 16(b) of the Exchange Act. It is the intent of the Company that this Plan
satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as
promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the
benefit of Rule 16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and
will not be subject to short-swing liability under Section 16 of the Exchange Act. Accordingly, if
the operation of any provision of this Plan would conflict with the intent expressed in this
Section 13.15, such provision to the extent possible shall be interpreted and/or deemed amended
so as to avoid such conflict.
13.16Deferral of Awards. The Committee may establish one or more programs under
this Plan to permit selected Participants the opportunity to elect to defer receipt of consideration
upon exercise of an Award, satisfaction of performance criteria, or other event that absent the
27
election would entitle the Participant to payment or receipt of Shares or other consideration
under an Award. The Committee may establish the election procedures, the timing of such
elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on
amounts, Shares or other consideration so deferred, and such other terms, conditions, rules, and
procedures that the Committee deems advisable for the administration of any such deferral
program.
13.17Section 409A of the Code. This Plan and Awards are intended to comply with or
be exempt from the applicable requirements of Section 409A of the Code and shall be limited,
construed, and interpreted in accordance with such intent. To the extent that any Award is subject
to Section 409A of the Code, it shall be paid in a manner that will comply with Section 409A of
the Code. Notwithstanding anything herein to the contrary, any provision in this Plan that is
inconsistent with Section 409A of the Code shall be deemed to be amended to comply with or be
exempt from Section 409A of the Code and, to the extent such provision cannot be amended to
comply therewith or be exempt therefrom, such provision shall be null and void. The Company
shall have no liability to a Participant, or any other party, if an Award that is intended to be
exempt from, or compliant with, Section 409A of the Code is not so exempt or compliant or for
any action taken by the Committee or the Company and, in the event that any amount or benefit
under this Plan becomes subject to penalties under Section 409A of the Code, responsibility for
payment of such penalties shall rest solely with the affected Participants and not with the
Company. Notwithstanding any contrary provision in this Plan or Award Agreement, any
payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the
Code) that are otherwise required to be made under this Plan to a “specified employee” (as
defined under Section 409A of the Code) as a result of such employee’s separation from service
(other than a payment that is not subject to Section 409A of the Code) shall be delayed for the
first six (6) months following such separation from service (or, if earlier, until the date of death
of the specified employee) and shall instead be paid (in a manner set forth in the Award
Agreement) upon expiration of such delay period.
13.18Data Privacy. As a condition of receipt of any Award, each Participant explicitly
and unambiguously consents to the collection, use, and transfer, in electronic or other form, of
personal data as described in this Section 13.18 by and among, as applicable, the Company and
its Affiliates, for the exclusive purpose of implementing, administering, and managing this Plan
and Awards and the Participant’s participation in this Plan. In furtherance of such
implementation, administration, and management, the Company and its Affiliates may hold
certain personal information about a Participant, including, but not limited to, the Participant’s
name, home address, telephone number, date of birth, social security or insurance number or
other identification number, salary, nationality, job title(s), information regarding any securities
of the Company or any of its Affiliates, and details of all Awards (the “Data”). In addition to
transferring the Data amongst themselves as necessary for the purpose of implementation,
administration, and management of this Plan and Awards and the Participant’s participation in
this Plan, the Company and its Affiliates may each transfer the Data to any third parties assisting
the Company in the implementation, administration, and management of this Plan and Awards
and the Participant’s participation in this Plan. Recipients of the Data may be located in the
Participant’s country or elsewhere, and the Participant’s country and any given recipient’s
28
country may have different data privacy laws and protections. By accepting an Award, each
Participant authorizes such recipients to receive, possess, use, retain, and transfer the Data, in
electronic or other form, for the purposes of assisting the Company in the implementation,
administration, and management of this Plan and Awards and the Participant’s participation in
this Plan, including any requisite transfer of such Data as may be required to a broker or other
third party with whom the Company or the Participant may elect to deposit any shares of
Common Stock. The Data related to a Participant will be held only as long as is necessary to
implement, administer, and manage this Plan and Awards and the Participant’s participation in
this Plan. A Participant may, at any time, view the Data held by the Company with respect to
such Participant, request additional information about the storage and processing of the Data
with respect to such Participant, recommend any necessary corrections to the Data with respect
to the Participant, or refuse or withdraw the consents herein in writing, in any case without cost,
by contacting his or her local human resources representative. The Company may cancel the
Participant’s eligibility to participate in this Plan, and in the Committee’s discretion, the
Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the
consents described herein. For more information on the consequences of refusal to consent or
withdrawal of consent, Participants may contact their local human resources representative.
13.19Successor and Assigns. This Plan shall be binding on all successors and
permitted assigns of a Participant, including, without limitation, the estate of such Participant and
the executor, administrator, or trustee of such estate.
13.20Severability of Provisions. If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof,
and this Plan shall be construed and enforced as if such provisions had not been included.
13.21Headings and Captions. The headings and captions herein are provided for
reference and convenience only, shall not be considered part of this Plan, and shall not be
employed in the construction of this Plan.
ARTICLE XIV
EFFECTIVE DATE OF PLAN
This Plan shall become effective on September 29, 2026 which is the date of its adoption
by the Board, subject to the approval of this Plan by the stockholders of the Company in
accordance with the requirements of the laws of the State of Delaware.
ARTICLE XV
TERM OF PLAN
No Award shall be granted pursuant to this Plan on or after the tenth (10th) anniversary of
the earlier of the date that this Plan is adopted by the Board or the date of stockholder approval,
but Awards granted prior to such tenth (10th) anniversary may extend beyond that date.
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