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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, 2023
Inspirato Incorporated
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-39791 |
|
85-2426959 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
1544 Wazee Street
Denver, CO |
|
80202 |
(Address of principal executive offices) |
|
(Zip Code) |
(303) 586-7771
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K 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 |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act |
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, $0.0001 par value per share |
|
ISPO |
|
The Nasdaq Stock Market LLC |
Warrants to purchase Class A common stock |
|
ISPOW |
|
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 x
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, 2023,
Inspirato Incorporated (the “Company”) and the other members of Inspirato LLC entered
into the Tenth Amended and Restated Limited Liability Company Agreement of Inspirato LLC (the “Restated LLCA”). The amendments
effected by the Restated LLCA were primarily adopted to reflect the amendments to the Company’s certificate of incorporation described
in Item 3.03 of this Current Report on Form 8-K. The foregoing summary of the Restated LLCA is only a summary and is qualified by reference
to the text of the Restated LLCA, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
a Registrant. |
As previously disclosed in the Current Report on Form 8-K filed with
the Securities and Exchange Commission (“SEC”) on August 8, 2023 (the “Prior 8-K”), the Company previously entered
into that certain Investment Agreement, dated as of August 7, 2023, filed as Exhibit 10.1 to the Prior 8-K (the “Investment Agreement”).
The disclosure contained in Items 1.01 and 2.03 of the Prior 8-K is incorporated herein by reference. On September 29, 2023, the Company
effected the closing of the transactions contemplated by the Investment Agreement, including the sale and issuance to Oakstone Ventures,
Inc. (the “Purchaser”) of an 8% Senior Secured Convertible Note due 2028 in an aggregate principal amount of $25,000,000,
in the form filed as Exhibit 4.1 to the Prior 8-K (the “Oakstone Note”).
| Item 3.02. | Unregistered Sales of Equity Securities. |
The disclosure contained in Item 3.02 of the Prior
8-K and Item 2.03 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 3.03. | Material Modification to Rights of Security Holders. |
As previously disclosed, in accordance with the
Investment Agreement, on September 26, 2023, the Company held a special meeting of stockholders (the “Special Meeting”)
to, among other things, consider and vote upon a proposal to approve an amendment to the Company’s certificate of incorporation
to create a new series of common stock, par value $0.0001 per share, designated Class B Non-Voting common stock (the “Class B
Amendment”). At the Special Meeting, the Company’s stockholders approved the Class B Amendment. The Class B Amendment
became effective upon its filing with the Secretary of State of the State of Delaware on September 29, 2023. The description of the
amendments effected by the Class B Amendment is incorporated herein by reference to the text of the section titled “The
Class B Proposal—Summary of Proposed Amendment” of the Company’s definitive proxy statement for the Special
Meeting, filed with the SEC on September 7, 2023 (the “Proxy Statement”). Such description of the Class B Amendment
is qualified in its entirety by reference to the full text of the Class B Amendment, filed as Exhibit 3.2 to this Current Report
on Form 8-K, which is incorporated by reference into this Item 3.03.
On October 4, 2023, the Company issued a press
release announcing the closing of the sale and issuance of the Oakstone Note and the entry into a commercial agreement between Inspirato
LLC and an affiliate of the Purchaser pursuant to the Investment Agreement. A copy of the press release is filed as Exhibit 99.1 to this
Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
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.
|
|
|
|
Inspirato Incorporated |
Dated: October 4, 2023 |
|
|
By: |
/s/ Robert Kaiden |
|
|
Name: Robert Kaiden
Title: Chief Financial Officer |
Exhibit 3.1
TENTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
INSPIRATO LLC
DATED AS OF SEPTEMBER 29, 2023
THE LIMITED LIABILITY COMPANY INTERESTS IN INSPIRATO
LLC HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, THE SECURITIES LAWS OF ANY STATE, OR ANY OTHER APPLICABLE SECURITIES
LAWS, AND HAVE BEEN OR ARE BEING ISSUED IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH
LAWS. SUCH INTERESTS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED
OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS OF ANY STATE AND ANY
OTHER APPLICABLE SECURITIES LAWS; (II) THE TERMS AND CONDITIONS OF THIS TENTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT;
AND (III) ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BETWEEN THE COMPANY AND THE APPLICABLE MEMBER. THEREFORE, PURCHASERS
AND OTHER TRANSFEREES OF SUCH LIMITED LIABILITY COMPANY INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT OR ACQUISITION
FOR AN INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS |
3 |
|
|
|
Section 1.1 |
Definitions |
3 |
Section 1.2 |
Interpretive Provisions |
20 |
|
|
|
ARTICLE II ORGANIZATION OF THE LIMITED
LIABILITY COMPANY |
21 |
|
|
|
Section 2.1 |
Formation |
21 |
Section 2.2 |
Filing |
21 |
Section 2.3 |
Name |
21 |
Section 2.4 |
Registered Office: Registered Agent |
21 |
Section 2.5 |
Principal Place of Business |
22 |
Section 2.6 |
Purpose; Powers |
22 |
Section 2.7 |
Term |
22 |
Section 2.8 |
Intent |
22 |
|
|
|
ARTICLE III TRANSACTIONS RELATED TO
THE BUSINESS COMBINATION AGREEMENT |
22 |
|
|
|
Section 3.1 |
Transactions That Occurred Prior to the Business Combination
Agreement Transactions |
22 |
Section 3.2 |
Business Combination Agreement Transactions |
23 |
|
|
|
ARTICLE IV OWNERSHIP AND CAPITAL CONTRIBUTIONS;
CAPITAL ACCOUNTS |
23 |
|
|
|
Section 4.1 |
Authorized Units; General Provisions with Respect to
Units |
23 |
Section 4.2 |
Capital Contributions |
28 |
Section 4.3 |
Issuance of Additional Units |
28 |
Section 4.4 |
Capital Accounts |
28 |
Section 4.5 |
Other Matters Regarding Capital Contributions |
29 |
Section 4.6 |
Exchange of Common Units |
30 |
Section 4.7 |
Representations and Warranties of the Members |
36 |
|
|
|
ARTICLE V ALLOCATIONS OF PROFITS AND
LOSSES |
38 |
|
|
|
Section 5.1 |
Profits and Losses |
38 |
Section 5.2 |
Special Allocations |
38 |
Section 5.3 |
Allocations for Tax Purposes in General |
40 |
Section 5.4 |
Other Allocation Rules |
41 |
|
|
|
ARTICLE VI DISTRIBUTIONS |
42 |
|
|
|
Section 6.1 |
Distributions |
42 |
Section 6.2 |
Tax-Related Distributions |
43 |
Section 6.3 |
Distribution Upon Withdrawal |
44 |
Section 6.4 |
Special Distributions to Facilitate Acquisitions |
44 |
|
|
|
ARTICLE VII MANAGEMENT |
45 |
|
|
|
Section 7.1 |
Board Rights; Member and Officer Duties |
45 |
Section 7.2 |
Election of Board |
47 |
Section 7.3 |
Resignation or Removal of Managers; Vacancy |
47 |
Section 7.4 |
Role of Officers |
47 |
Section 7.5 |
Warranted Reliance by Officers on Others |
48 |
Section 7.6 |
Indemnification |
49 |
Section 7.7 |
Reclassification Events of PubCo |
51 |
Section 7.8 |
Transactions between Company and PubCo |
51 |
Section 7.9 |
Certain Costs and Expenses |
51 |
|
|
|
ARTICLE VIII ROLE OF MEMBERS |
52 |
|
|
|
Section 8.1 |
Rights or Powers |
52 |
Section 8.2 |
Voting |
52 |
Section 8.3 |
Various Capacities |
52 |
Section 8.4 |
Investment Opportunities |
53 |
|
|
|
ARTICLE IX TRANSFERS OF UNITS |
54 |
|
|
|
Section 9.1 |
Restrictions on Transfer |
54 |
Section 9.2 |
Notice of Transfer |
55 |
Section 9.3 |
Transferee Members |
55 |
Section 9.4 |
Legend |
56 |
Section 9.5 |
Transfer |
56 |
Section 9.6 |
Assignee’s Rights |
56 |
Section 9.7 |
Assignor’s Rights and Obligations. |
57 |
|
|
|
ARTICLE X ACCOUNTING |
57 |
|
|
|
Section 10.1 |
Books of Account |
57 |
Section 10.2 |
Tax Elections |
57 |
Section 10.3 |
Tax Returns; Information |
58 |
Section 10.4 |
Company Representative |
59 |
Section 10.5 |
Withholding Tax Payments and Obligations |
61 |
|
|
|
ARTICLE XI DISSOLUTION |
62 |
|
|
|
Section 11.1 |
Liquidating Events |
62 |
Section 11.2 |
Bankruptcy |
62 |
Section 11.3 |
Procedure |
63 |
Section 11.4 |
Rights of Members |
64 |
Section 11.5 |
Notices of Dissolution |
64 |
Section 11.6 |
Reasonable Time for Winding Up |
64 |
Section 11.7 |
No Deficit Restoration |
64 |
|
|
|
ARTICLE XII GENERAL |
64 |
|
|
|
Section 12.1 |
Amendments; Waivers |
64 |
Section 12.2 |
Further Assurances |
65 |
Section 12.3 |
Successors and Assigns |
65 |
Section 12.4 |
Entire Agreement |
65 |
Section 12.5 |
Rights of Members Independent |
66 |
Section 12.6 |
Governing Law; Waiver of Jury Trial; Jurisdiction |
66 |
Section 12.7 |
Headings |
66 |
Section 12.8 |
Counterparts; Electronic Delivery |
67 |
Section 12.9 |
Notices |
67 |
Section 12.10 |
Representation by Counsel; Interpretation |
68 |
Section 12.11 |
Severability |
68 |
Section 12.12 |
Expenses |
68 |
Section 12.13 |
No Third Party Beneficiaries |
68 |
Section 12.14 |
Confidentiality |
68 |
Section 12.15 |
No Recourse |
69 |
Exhibits
Exhibit A: Capitalization
Exhibit B: Exchange Notice
Exhibit C: Officers
Exhibit D: Joinder
TENTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
INSPIRATO LLC
This TENTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (as amended, supplemented or restated from time to time in accordance with the terms hereof, this
“LLC Agreement”) of Inspirato LLC (f/k/a BH Ventures, LLC), a Delaware limited liability company (the “Company”),
is entered into as of September 29, 2023 (the “LLCA Effective Time”), by and among Inspirato Incorporated
(f/k/a Thayer Ventures Acquisition Corporation), a Delaware corporation (“PubCo”), the other Members set forth
on Exhibit A hereto (together with PubCo, the “Existing Members”) and each other Person who is
or at any time becomes a Member in accordance with the terms of this LLC Agreement and the Act. Capitalized terms used in this LLC Agreement
shall have the respective meanings set forth in Section 1.1.
RECITALS
WHEREAS, the Company was
incorporated as a Delaware corporation under the name “BH Ventures, Inc.” pursuant to a Certificate of Incorporation
filed in the office of the Secretary of State of the State of Delaware on February 12, 2010, and converted into a Delaware limited
liability company under the name “BH Ventures, LLC” pursuant to a Certificate of Conversion to Limited Liability Company
and Certificate of Formation of the Company filed in the office of the Secretary of State of the State of Delaware on May 12, 2010,
as amended by the Certificate of Amendment to the Certificate of Formation of the Company filed in the office of the Secretary of State
of the State of Delaware on January 25, 2011 (as so amended, and as amended from time to time, the “Certificate of Formation”)
and upon the effectiveness of the Certificate of Formation was governed by the First Amended and Restated Limited Liability Company Agreement
of the Company, dated as of March 31, 2011 (the “Initial LLC Agreement”);
WHEREAS, certain of the Existing
Members entered into the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of October 11,
2011 (the “Second A&R LLC Agreement”), which amended and restated the Initial LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of January 13,
2012 (the “Third A&R LLC Agreement”), which amended and restated the Second A&R LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Fourth Amended and Restated Limited Liability Company Agreement of the Company, dated as of June 12, 2012
(the “Fourth A&R LLC Agreement”), which amended and restated the Third A&R LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Amended and Restated Limited Liability Company Agreement of the Company, dated as of December 16, 2013
(the “Fifth A&R LLC Agreement”), which amended and restated the Fourth A&R LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Amended and Restated Limited Liability Company Agreement of the Company, dated as of September 11, 2014
(the “Sixth A&R LLC Agreement”), which amended and restated the Fifth A&R LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Amended and Restated Limited Liability Company Agreement of the Company, dated as of April 3, 2017 (the
“Seventh A&R LLC Agreement”), which amended and restated the Sixth LLC Agreement;
WHEREAS, certain of the Existing
Members entered into the Amended and Restated Limited Liability Company Agreement, dated as of February 9, 2020 (the “Eighth
A&R LLC Agreement”), which amended and restated the Seventh A&R LLC Agreement;
WHEREAS, immediately prior
to the Ninth LLCA Effective Time (as defined below), the Company was wholly owned by certain of the Existing Members;
WHEREAS, on June 30,
2021, the Company, PubCo, Passport Company Merger Sub, LLC, a Delaware limited liability company (“Company Merger Sub”),
and the other parties thereto entered into that certain Business Combination Agreement, as amended by the Amendment to Business Combination
Agreement dated as of September 15, 2021 (as amended, modified or supplemented from time to time in accordance with the terms thereof,
the “Business Combination Agreement”), pursuant to which, among other things, as of the Effective Time, Company
Merger Sub merged with and into the Company, with the Company surviving as a Subsidiary of PubCo, and each member of the Company as of
immediately prior to the Effective Time received a number of Common Units in accordance with Section 3.1(c) of the Business
Combination Agreement (each such Member who received Common Units at the Effective Time together with their permitted successors and
assigns, a “Continuing Member”);
WHEREAS, the Business Combination
Agreement provided for the amendment and restatement of the Eighth A&R LLC Agreement in the form of the Existing LLC Agreement to
reflect: (a) the redemption of the limited liability company interests in the Company held by certain Ninth LLCA Existing Members
(as defined below) prior to the Blocker Effective Time; (b) the recapitalization of the limited liability company interests of the
Company into a single class of units prior to the Blocker Effective Time; (c) the consummation of the transactions contemplated
by the Business Combination Agreement and the Ancillary Agreements (as such term is defined in the Business Combination Agreement), including
the conversion of units pursuant to Section 3.1(c)(ii) of the Business Combination Agreement, (d) admission of
PubCo as a Member at the Effective Time, and (e) the rights and obligations of the members of the Company under the Existing LLC
Agreement and other terms and provisions, in each case as set forth in the Existing LLC Agreement;
WHEREAS,
in accordance with the Business Combination Agreement, the Eighth A&R LLC Agreement and Section 18-302(e) of the
Act, as of the Ninth LLCA Effective Time, the Eighth A&R LLC Agreement was amended and restated in its entirety by the Existing LLC
Agreement; and
WHEREAS, following the Effective
Time, each Common Unit (other than any Common Unit held by PubCo and its wholly owned Subsidiaries) may be exchanged, at the election
of the holder of such Common Unit (together with the surrender and delivery by such holder of one (1) share of Class V Common
Stock of PubCo), for one (1) share of Class A Common Stock of PubCo, in each case in accordance with the terms and conditions
of the Existing LLC Agreement or this LLC Agreement.
NOW THEREFORE, in accordance
with the Existing LLC Agreement and Section 18-302(e) of the Act and in consideration of the mutual covenants and agreements
contained in this LLC Agreement, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound, the Existing LLC Agreement is hereby amended and restated in its entirety as of the LLCA Effective
Time as set forth herein and the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
As used in this LLC Agreement and the Schedules and Exhibits attached to this LLC Agreement, the following definitions shall apply:
“Act”
means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq.
“Action”
means any action, suit, charge, litigation, arbitration, notice of violation or citation received, or other proceeding at law or in equity
(whether civil, criminal or administrative) by or before any Governmental Entity.
“Adjusted Basis”
has the meaning given to such term in Section 1011 of the Code.
“Adjusted Capital
Account Deficit” means the deficit balance, if any, in such Member’s Capital Account at the end of any Taxable Year
or other taxable period, with the following adjustments:
(a) credit
to such Capital Account any amount that such Member is obligated to restore under Treasury Regulations Section 1.704-1(b)(2)(ii)(c),
as well as any addition thereto pursuant to the next to last sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) after
taking into account thereunder any changes during such year in Company Minimum Gain and Member Minimum Gain; and
(b) debit
to such Capital Account the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
This definition of Adjusted
Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
“Admission Date”
is defined in Section 9.7.
“Advancement
of Expenses” is defined in Section 7.6(b).
“Affiliate”
of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “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 manager or otherwise. For purposes of this LLC Agreement, no Member
shall be deemed to be an Affiliate of any other Member solely as a result of membership in the Company.
“Affiliated Group”
is defined in the Business Combination Agreement.
“Appraiser FMV”
means the fair market value of any Equity Security as determined by an independent appraiser mutually agreed upon by the Board and the
relevant Transferor, whose determination shall be final and binding for those purposes for which Appraiser FMV is used in this LLC Agreement.
Appraiser FMV shall be the fair market value determined without regard to any discounts for minority interest, illiquidity or other discounts.
The cost of any independent appraisal in connection with the determination of Appraiser FMV in accordance with this LLC Agreement shall
be borne by the Company.
“Assumed Rate”
means the highest effective marginal combined U.S. federal, state and local income tax rate (including, if applicable, under Section 1411
of the Code) applicable to an individual or corporate resident in California (whichever is higher), 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 Taxable Year, and taking into account: (a) the character of any income, gains, deductions, losses or credits, and
the deductibility of state income taxes, and (b) available deductions under Code Section 199A, as applicable. The Assumed Rate
shall be the same for all Members regardless of the actual combined income tax rate of the Member or its direct or indirect owners.
“Audit”
is defined in Section 10.4(b).
“Automatic Redemption”
is defined in Section 4.1(h)(i).
“BBA Rules”
means Code Sections 6221 through 6241, as in effect for taxable years of the Company beginning after December 31, 2017, together
with any Treasury Regulations and other guidance promulgated thereunder, and any similar state or local legislation, regulations or guidance.
“beneficially
own” and “beneficial owner” shall be as defined in Rule 13d-3 of the rules promulgated
under the Exchange Act.
“Blackout Period”
means a broadly applicable period during which trading in PubCo’s Equity Securities would not be permitted under PubCo’s
insider trading policy.
“Blocker Effective
Time” is defined in the Business Combination Agreement and, for the avoidance of doubt, occurred prior to the LLCA Effective
Time.
“Board”
is defined in Section 7.1(a).
“Business Combination
Agreement” is defined in the recitals to this LLC Agreement.
“Business Day”
means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State
of New York.
“Business Opportunities
Exempt Party” is defined in Section 8.4.
“Capital Account”
means, with respect to any Member, the capital account maintained for such Member in accordance with Section 4.4.
“Capital Contribution”
means, with respect to any Member, the amount of cash and the Fair Market Value of any property (other than cash) contributed to the
Company by such Member, net of any liabilities assumed by the Company for such Member in connection with such contribution, as set forth
from time to time in the books and records of the Company. Any reference to the Capital Contribution of a Member will include any Capital
Contributions made by a predecessor holder of such Member’s Units to the extent that such Capital Contribution was made in respect
of Units Transferred to such Member.
“Cash Available
for Tax Distributions” is defined in Section 6.2.
“Cash Exchange
Notice” has the meaning set forth in Section 4.6(a)(ii).
“Cash Exchange
Payment” means with respect to a particular Exchange for which PubCo has elected to make a Cash Exchange Payment in accordance
with Section 4.6(a)(ii):
(i) if
the Class A Common Stock trades on a National Securities Exchange or automated or electronic quotation system, an amount of cash
equal to the product of (x) the number of shares of Class A Common Stock that would have been received by the Exchanging Member
in the Exchange for that portion of the Common Units subject to the Exchange set forth in the Cash Exchange Notice if PubCo had paid
the Stock Exchange Payment with respect to such number of Common Units, and (y) the Class A 5-Day VWAP; or
(ii) if
the Class A Common Stock is not then traded on a National Securities Exchange or automated or electronic quotation system, as applicable,
an amount of cash equal to the product of (x) the number of shares of Class A Common Stock that would have been received by
the Exchanging Member in the Exchange for that portion of the Common Units subject to the Exchange set forth in the Cash Exchange Notice
if PubCo had paid the Stock Exchange Payment with respect to such number of Common Units, for which PubCo has elected to make a Cash
Exchange Payment and (y) the Appraiser FMV of one (1) share of Class A Common Stock that would be obtained in an arms-length
transaction between an informed and willing buyer and an informed and willing seller, neither of whom is under any compulsion to buy
or sell, respectively, and without regard to the particular circumstances of the buyer or seller.
“Certificate
Delivery” means, in the case of any shares of Class V Common Stock to be transferred and surrendered by an Exchanging
Member in connection with an Exchange which are represented by a certificate or certificates, the process by which the Exchanging Member
shall also present and surrender such certificate or certificates representing such shares of Class V Common Stock during normal
business hours at the principal executive offices of PubCo, or if any agent for the registration or transfer of shares of Class V
Common Stock is then duly appointed and acting, at the office of such transfer agent, along with any instruments of transfer reasonably
required by PubCo or such transfer agent, as applicable, duly executed by the Exchanging Member or the Exchanging Member’s duly
authorized representative.
“Certificate
of Formation” is defined in the recitals to this LLC Agreement.
“Change of Control”
means the occurrence of any transaction or series of related transactions in which: (a) any Person or any group of Persons (other
than PubCo and its wholly-owned Subsidiaries) acting together that would constitute a “group” for purposes
of Section 13(d) of the Exchange Act, is or becomes the beneficial owner, directly or indirectly, of securities of PubCo or
the Company representing more than 50% of the combined voting power of PubCo’s or the Company’s, as applicable, then outstanding
voting securities (excluding a transaction or series of related transactions described in clause (b) that would not constitute a
Change of Control), (b) there is consummated a merger or consolidation of PubCo or the Company with any other Person, and, immediately
after the consummation of such merger or consolidation, the outstanding voting securities of PubCo or the Company, as applicable, immediately
prior to such merger or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power
of the then outstanding voting securities of the Person resulting from such merger or consolidation or, if PubCo or the Company, as applicable
(or its successor) is a Subsidiary of such Person, the ultimate parent thereof, or (c) there is consummated an agreement or series
of related agreements for the sale or transfer, directly or indirectly, by PubCo of all or substantially all of PubCo’s and its
Subsidiaries’ assets (including the Company). Notwithstanding the foregoing, a “Change of Control” shall
not be deemed to have occurred by virtue of the consummation of any transaction or series of related transactions immediately following
which the record holders of the shares of PubCo immediately prior to such transaction or series of related 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 PubCo immediately following such transaction or series of related
transactions.
“Class A
5-Day VWAP” means, on any relevant measurement date, the VWAP for five (5) consecutive Trading Days ending on such
date.
“Class A
Common Stock” means, as applicable, (a) the Class A Common Stock, par value $0.0001 per share, of PubCo or (b) following
any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other
Person that become payable in consideration for the Class A Common Stock or into which the Class A Common Stock is exchanged
or converted as a result of such consolidation, merger, reclassification or other similar event.
“Class B
Common Stock” means, as applicable, (a) the Class B Common Stock, par value $0.0001 per share, of PubCo or (b) following
any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other
Person that become payable in consideration for the Class B Common Stock or into which the Class B Common Stock is exchanged
or converted as a result of such consolidation, merger, reclassification or other similar event.
“Class V
Common Stock” means, as applicable, (a) the Class V Common Stock, par value $0.0001 per share, of PubCo or (b) following
any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other
Person that become payable in consideration for the Class V Common Stock or into which the Class V Common Stock is exchanged
or converted as a result of such consolidation, merger, reclassification or other similar event.
“COC Exchange”
is defined in Section 4.6(a)(v).
“COC Exchange
Date” is defined in Section 4.6(a)(v).
“COC Notice”
is defined in Section 4.6(a)(v).
“Code”
means the United States Internal Revenue Code of 1986.
“Commission”
means the U.S. Securities and Exchange Commission, including any Governmental Entity succeeding to the functions thereof.
“Common Units”
means the common units of limited liability company interests issued under this LLC Agreement, including by way of dividend or other
distribution, split, recapitalization, merger, rollup transaction, consolidation, conversion or reorganization.
“Company”
is defined in the preamble to this LLC Agreement.
“Company Merger”
has the meaning given to it in the Business Combination Agreement.
“Company Minimum
Gain” has the meaning of “partnership minimum gain” set forth in Treasury Regulations Sections 1.704-2(b)(2) and
1.704-2(d).
“Company Representative”
shall mean the Person designated under this LLC Agreement in its capacity as the “partnership representative”
(as such term is defined under the BBA Rules and any analogous provision of state or local tax Law) of the Company and as the “tax
matters partner” (to the extent applicable for state and local tax purposes and for U.S. federal income tax purposes for
Taxable Years beginning on or before December 31, 2017) of the Company, including, as the context requires, any “designated
individual” through whom the Company Representative is permitted by applicable Law to act in accordance with the terms
hereof, which Person, as of the LLCA Effective Time, is PubCo.
“Confidential
Information” means any and all confidential or proprietary information obtained by a Member from the Company, PubCo or
any of their respective Subsidiaries, directly or indirectly, including from their representatives, which information includes ideas,
financial information, products, services, business strategies, innovations, recipes and materials, all aspects of the Company’s
business plan, proposed operation and products, corporate structure, board minutes and materials, financial and organizational information,
analyses, proposed partners, software code and system and product designs, employees and their identities, equity ownership, the methods
and means by which the Company plans to conduct its business, all trade secrets, trademarks, tradenames and all intellectual property
associated with the Company’s business. With respect to any Member, Confidential Information does not include information that:
(a) is in the possession of such Member on a non-confidential basis at the time of disclosure by or on behalf of the Company or
any of its Affiliates; (b) before or after it has been disclosed to such Member by or on behalf of the Company or any of its Affiliates,
becomes part of public knowledge, not as a result of any action or inaction of such Member (other than PubCo or one of its Subsidiaries)
in violation of this LLC Agreement; (c) is approved for release by written authorization of the Board and the PubCo Board; (d) is
disclosed to such Member or its representatives by a third party not, to the knowledge of such Member or such representative, respectively,
in violation of any obligation of confidentiality owed to the Company or any of its Affiliates with respect to such information; or (e) is
or becomes independently developed by such Member or its representatives without use or reference to the Confidential Information.
“Continuing Member
COC” means a Change of Control in which the acquiring Person or Persons in the relevant transaction or series of related
transactions are not (a) a Continuing Member or (b) an Affiliate of a Continuing Member.
“Continuing Member
Representative” means Brent Handler or any Affiliate of Brent Handler designated in writing by Brent Handler to PubCo,
the Company and each of the Continuing Members after the Effective Date.
“Continuing Members”
is defined in the recitals to this LLC Agreement.
“Debt Securities”
means, with respect to PubCo, any and all debt instruments or debt securities that are not convertible or exchangeable into Equity Securities
of PubCo.
“Depreciation”
means, for each Taxable Year or other taxable period, an amount equal to the depreciation, amortization, or other cost recovery deduction
allowable for U.S. federal income tax purposes with respect to an asset for such Taxable Year or other taxable period, except that (a) with
respect to any such property the Gross Asset Value of which differs from its Adjusted Basis for U.S. federal income tax purposes and
which difference is being eliminated by use of the “remedial method” pursuant to Treasury Regulations Section 1.704-3(d),
Depreciation for such Taxable Year or other taxable period shall be the amount of book basis recovered for such Taxable Year or other
taxable period under the rules prescribed by Treasury Regulations Section 1.704-3(d)(2), and (b) with respect to any other
such property the Gross Asset Value of which differs from its Adjusted Basis for U.S. federal income tax purposes at the beginning of
such Taxable Year or other taxable period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value
as the federal income tax depreciation, amortization, or other cost recovery deduction for such Taxable Year or other taxable period
bears to such beginning Adjusted Basis; provided, however, for purposes of clause (b) of this definition, that if
the Adjusted Basis for U.S. federal income tax purposes of an asset at the beginning of such Taxable Year or other taxable period is
zero, Depreciation with respect to such asset shall be determined with reference to such beginning Gross Asset Value using any reasonable
method selected by the Board.
“DGCL”
means the General Corporation Law of the State of Delaware.
“Disinterested
Majority” means (a) with respect to the PubCo Board, a majority of the directors of the PubCo Board who are disinterested
as determined by the PubCo Board in accordance with the DGCL and other applicable Delaware Law with respect to the matter being considered
by the PubCo Board; provided that to the extent a matter being considered by the PubCo Board is required to be considered by disinterested
directors under the rules of the National Securities Exchange on which the Class A Common Stock is then listed, the Securities
Act or the Exchange Act, such rules with respect to the definition of disinterested director shall apply solely with respect to
such matter and (b) with respect to the Board, a majority of the Managers who are disinterested as determined by the Board in accordance
with applicable Delaware Law with respect to the matter being considered by the Board.
“Distributable
Cash” means, as of any relevant date on which a determination is being made by the Board regarding a potential distribution
pursuant to Section 6.1(a), the amount of cash reasonably determined by the Board to be available for any such distribution.
“Distributed
Cash Amount” is defined in the Business Combination Agreement.
“Effective Time”
has the meaning given to such term in the Business Combination Agreement and, for the avoidance of doubt, occurred prior to the LLCA
Effective Time.
“Equity Merger
Consideration” is defined in the Business Combination Agreement.
“Equity Securities”
means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person,
all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or preferred
interests or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable
for shares of capital stock or equity of (or other ownership or profit interests in) such Person, including convertible debt securities,
or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted
stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership
or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.
“ERISA”
means the Employee Retirement Security Act of 1974.
“Exchange”
means (a) the exchange by the Company of Common Units held by a Member (together with the surrender and cancellation of the same
number of outstanding shares of Class V Common Stock held by such Member) for either (i) a Stock Exchange Payment or (ii) a
Cash Exchange Payment or (b) the direct purchase by PubCo of Common Units and shares of Class V Common Stock held by a Member
in accordance with a PubCo Call Right, in each case in accordance with Section 4.6.
“Exchange Act”
means the Securities Exchange Act of 1934.
“Exchange Blackout
Period” means (i) any Blackout Period to which the applicable Exchanging Member is subject (or will be subject at
such time as it owns Class A Common Stock), which period restricts the ability of such Exchanging Member to immediately resell shares
of Class A Common Stock to be delivered to such Exchanging Member in connection with a Stock Exchange Payment and (ii) the
period of time commencing on (x) the date of the declaration of a dividend by PubCo and ending on the first day following (y) the
record date determined by the PubCo Board with respect to such dividend declared pursuant to clause (x), which period of time shall be
no longer than 10 Business Days; provided that in no event shall an Exchange Blackout Period which respect to clause (ii) of
the definition hereof occur more than four (4) times per calendar year.
“Exchange Conditions”
means any of the following conditions: (a) any Registration Statement pursuant to which the resale of the Class A Common Stock
to be registered for such Exchanging Member at or immediately following the consummation of the Exchange shall have ceased to be effective
pursuant to any action or inaction by the Commission or no such resale Registration Statement has yet become effective, (b) PubCo
shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement necessary to effect such Exchange,
(c) PubCo shall have exercised its right to defer, delay or suspend the filing or effectiveness of a Registration Statement and
such deferral, delay or suspension shall affect the ability of such Exchanging Member to have its Class A Common Stock registered
at or immediately following the consummation of the Exchange, (d) any stop order relating to the Registration Statement pursuant
to which the Class A Common Stock was to be registered by such Exchanging Member at or immediately following the Exchange shall
have been issued by the Commission, (e) there shall be in effect an injunction, a restraining order or a decree of any nature of
any Governmental Entity that restrains or prohibits the Exchange, or (f) PubCo shall have failed to comply in any material respect
with its obligations under the Registration and Stockholder Rights Agreement to the extent related to the resale of the Class A
Common Stock of an Exchanging Member, and such failure shall have adversely affected the ability of such Exchanging Member to consummate
the resale of Class A Common Stock to be received upon such Exchange pursuant to an effective Registration Statement.
“Exchange
Date” means the date that is five (5) Business Days after the Exchange Notice Date is given; provided, that
if an Exchanging Member delays the consummation of an Exchange by delivering an Exchange Delay Notice, the Exchange Date shall occur
on the date that is three (3) Business Days following the date on which the conditions giving rise to such delay cease to exist
which shall in no event be prior to the date otherwise determined pursuant to this definition (or such earlier day as the Board and such
Exchanging Member may agree in writing); provided, further, that if the Exchange Date for any Exchange with respect to
which PubCo elects to make a Stock Exchange Payment would otherwise fall within any Exchange Blackout Period, then the Exchange Date
shall occur on the next Business Day following the end of such Exchange Blackout Period; provided further, that to the extent
an Exchange is made in connection with an Exchanging Member’s proper exercise of its rights to participate in a Piggyback Registration
pursuant to Section 2.2 of the Registration and Stockholder Rights Agreement, the Exchange Date shall be the date on which
the offering with respect to such Piggyback Registration is completed; provided further, that to the extent an Exchange is made
in connection with a PubCo Offer, the Exchange Date may be such other date or time as the Board determines to be necessary or advisable
to enable and permit the holders of Common Units to participate in such PubCo Offer and to ensure that such Exchange is contingent upon
such PubCo Offer and not effective if such PubCo Offer is not consummated.
“Exchange Delay
Notice” is defined in Section 4.6(a)(iii).
“Exchange Notice”
means a written election of Exchange in the form of Exhibit B, duly executed by the Exchanging Member.
“Exchange Notice
Date” means, with respect to any Exchange Notice, the date such Exchange Notice is given to the Company in accordance with
Section 12.9.
“Exchanged Units”
means, with respect to any Exchange, the Common Units being exchanged pursuant to a relevant Exchange Notice, and an equal number of
shares of Class V Common Stock held by the relevant Exchanging Member; provided, that, such amount of Common Units shall in no event
be less than the Minimum Exchange Amount.
“Existing LLC
Agreement” means the Ninth Amended and Restated Limited Liability Company Agreement of the Company, dated as of February 10,
2022, entered into by and among PubCo, certain wholly owned Subsidiaries of PubCo and the other parties thereto.
“Existing Member”
is defined in the preamble to this LLC Agreement.
“Fair Market
Value” means the fair market value of any property as determined in the good faith reasonable discretion of the Board after
taking into account such factors as the Board shall reasonably deem appropriate.
“Family Member”
means with respect to any Person, a spouse, lineal ascendant or descendant (whether natural or adopted) or spouse of a lineal ascendant
or descendant of such Person or any trust created for the benefit of such Person or of which any of the foregoing is a beneficiary.
“Final Adjudication”
is defined in Section 7.6(b).
“Fiscal Year”
means the fiscal year of the Company, which shall end on the last day of February of each calendar year, unless the fiscal year
is otherwise modified by the Board.
“Fully Diluted
Number” is defined in the Business Combination Agreement.
“GAAP”
means United States generally accepted accounting principles at the time.
“Governmental
Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator
(public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or
instrumentality of any federal, state, local or foreign jurisdiction.
“Gross Asset
Value” means, with respect to any asset, the asset’s Adjusted Basis for U.S. federal income tax purposes, except
as follows:
(a) the
initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross Fair Market Value of such asset as of
the date of such contribution;
(b) the
Gross Asset Values of all Company assets shall be adjusted to equal their respective gross Fair Market Values (taking into account Section 7701(g) of
the Code) in accordance with the rules set forth in Treasury Regulation Sections 1.704-1(b)(2)(iv)(f) and (h), except as otherwise
provided in this LLC Agreement, as of the following times: (i) the acquisition of a Unit (or additional Units) by any new or existing
Member in exchange for more than a de minimis Capital Contribution to the Company; (ii) the grant of a Unit (other than a de minimis
interest in the Company) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting
in a member capacity, or by a new Member acting in a member capacity or in anticipation of becoming a Member of the Company (within the
meaning of Treasury Regulation Section 1.704-1(b)(2)(iv)(d)); (iii) the distribution by the Company to a Member of more than
a de minimis amount of Company assets; (iv) the liquidation of the Company (within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g)(1));
(v) the acquisition of a Unit by any new or existing Member upon the exercise of a noncompensatory option in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv)(s), and (vi) any other event to the extent determined by the Board to be permitted and
necessary or appropriate to properly reflect Gross Asset Values in accordance with the standards set forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(g);
provided, however, that adjustments pursuant to clauses (i), (ii), (iii) and (v) above shall be made only if
the Board reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the
Members in the Company;
(c) the
Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross Fair Market Value of such asset
on the date of such distribution;
(d) the
Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the Adjusted Basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account
in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and clause (f) in the definition
of “Profits” or “Losses” below or Section 5.2(h); provided, however,
that the Gross Asset Value of a Company asset shall not be adjusted pursuant to this clause to the extent the Board determines that an
adjustment pursuant to clause (b) of this definition is necessary or appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this clause (d); and
(e) if
the Gross Asset Value of a Company asset has been determined or adjusted pursuant to clauses (a), (b) or (d) of this definition
of Gross Asset Value, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such
asset for purposes of computing Profits, Losses and other items allocated pursuant to Article V.
“Imputed Tax
Underpayments” is defined in Section 10.4(c).
“Indebtedness”
means (a) all indebtedness for borrowed money, (b) all indebtedness evidenced by any note, bond, debenture, mortgage or other
debt instrument or debt security, and (c) all capitalized lease obligations or obligations required to be capitalized in accordance
with GAAP.
“Indemnifiable
Losses” is defined in Section 7.6(a).
“Indemnitee”
is defined in Section 7.6(a).
“Initial LLC
Agreement” is defined in the recitals to this LLC Agreement.
“IRS”
means the U.S. Internal Revenue Service.
“Law”
means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations and rulings of a Governmental Entity,
including common law. All references to “Laws” shall be deemed to include any amendments thereto, and any successor
Law, unless the context otherwise requires.
“Liability”
means any debt, liability or obligation, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or
determined or determinable.
“Liquidating
Event” is defined in Section 11.1.
“Liquidity Limitations”
is defined in Section 6.2.
“LLC Agreement”
is defined in the preamble to this LLC Agreement.
“LLCA Effective
Time” is defined in the preamble to this LLC Agreement.
“Lock-Up
Period” means the period beginning on the closing date of the Company Merger (as defined in the Business Combination Agreement)
and ending on the earliest of (a) the date that is 180 days after the closing date of the Company Merger; and (b) the date
on which PubCo completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all
of PubCo’s stockholders having the right to exchange their shares of Class A Common Stock for cash, securities or other property;
(c) the date, if any, on which the closing price of the Class A Common Stock has equaled or exceeded $12.00 (as adjusted for
stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 Trading Days within any 30 Trading Day period
commencing at least 150 days after the closing date of the Company Merger; provided that, if (i) at least 120 days have elapsed
since the closing date of the Company Merger and (ii) the Lock-Up Period is scheduled to end during a Blackout Period or within
five Trading Days prior to a Blackout Period, the Lock-Up Period shall end 10 Trading Days prior to the commencement of the Blackout
Period (the “Blackout-Related Release”); provided further, that (i) promptly upon PubCo’s determination
of the date of the Blackout-Related Release and in any event at least two Trading Days in advance of the Blackout-Related Release, PubCo
shall announce the date of the Blackout-Related Release through a major news service, or on a Form 8-K, and (ii) the Blackout-Related
Release shall not occur unless PubCo shall have publicly released its earnings results for the fiscal year ended December 31, 2021.
“Manager”
is defined in Section 7.1(b).
“M&A Distribution”
is defined in Section 6.4.
“Member”
means any Person that executes this LLC Agreement as a Member, and any other Person admitted to the Company as an additional or substituted
Member, that has not made a disposition of all of such Person’s Units or otherwise ceased to be a member of the Company, each in
such Person’s capacity as a member of the Company.
“Member Minimum
Gain” has the meaning ascribed to “partner nonrecourse debt minimum gain” set forth in Treasury
Regulations Section 1.704-2(i). It is further understood that the determination of Member Minimum Gain and the net increase or decrease
in Member Minimum Gain shall be made in the same manner as required for such determination of Company Minimum Gain under Treasury Regulations
Sections 1.704-2(d) and 1.704-2(g)(3), as set forth in Treasury Regulations Section 1.704-2(i)(3).
“Member Nonrecourse
Debt” has the meaning of “partner nonrecourse debt” set forth in Treasury Regulations Section 1.704-2(b)(4).
“Member Nonrecourse
Deductions” has the meaning of “partner nonrecourse deductions” set forth in Treasury Regulations
Sections 1.704-2(i)(1) and 1.704-2(i)(2).
“Minimum Exchange
Amount” means a number of Common Units held by an Exchanging Member equal to (x) if such Exchanging Member holds more
than 100,000 Common Units as of the Effective Time, the lesser of (1) 100,000 Common Units and (2) all of the Common Units
then held by the applicable Exchanging Member or (y) to the extent such Exchanging Member holds 100,000 Common Units or less as
of the Effective Time, the lesser of (1) fifty percent (50%) of the Common Units held by the applicable Exchanging Member as of
the Effective Time and (2) all of the Common Units then held by the applicable Exchanging Member.
“National Securities
Exchange” means a securities exchange registered with the Commission under Section 6 of the Exchange Act.
“Ninth LLCA Effective
Time” means the “LLCA Effective Time” as defined in the Existing LLC Agreement, which, for the avoidance of
doubt, occurred prior to the LLCA Effective Time.
“Ninth LLCA Existing
Members” means the “Existing Members” as defined in the Existing LLC Agreement.
“Ninth LLCA Member”
means a “Member” as defined in the Existing LLC Agreement.
“Non-Party Affiliate”
is defined in Section 12.15.
“Non-PubCo Manager”
is defined in Section 7.1(b)(ii).
“Nonrecourse
Deductions” has the meaning assigned that term in Treasury Regulations Sections 1.704-2(b) and 1.704-2(c).
“Nonrecourse
Liability” is defined in Treasury Regulations Section 1.704-2 (b)(3).
“Officer”
means each Person appointed as an officer of the Company pursuant to and in accordance with the provisions of Section 7.4.
The Officers as of the LLCA Effective Time are listed on Exhibit C attached hereto.
“Other Agreements”
is defined in Section 9.5.
“Party”
and “Parties” means, individually or collectively, each Member and the Company.
“Per
Unit Unitholder Merger Consideration” means an amount in cash equal to the sum obtained by adding (i) the quotient
obtained by dividing (A) the Equity Merger Consideration by (B) the Fully Diluted Number plus (ii) the quotient
obtained by dividing (i) the Distributed Cash Amount divided by (ii) the number of Company Units (as defined
in the Business Combination Agreement) outstanding as of immediately prior to the Blocker Effective Time, and after giving effect to
the Existing LLC Agreement.
“Percentage Interest”
means such Member’s percentage interest in the Company determined by dividing such Member’s Units by the total Units of all
Members at such time. The Percentage Interest of each Member shall be calculated to the 4th decimal place.
“Permitted Exchange
Event” means, following the Effective Time, any of the following events, which has occurred or is occurring, or is otherwise
satisfied, as of the Exchange Date:
(a) The Exchange is
part of one or more Exchanges by a Member and any related persons (within the meaning of Section 267(b) or 707(b)(1) of
the Code) during any 30 calendar day period representing in the aggregate more than 2% of all outstanding Common Units,
(b) The Exchange is
in connection with a PubCo Offer; provided that any such Exchange pursuant to this clause (b) shall be effective immediately prior
to the consummation of the closing of the PubCo Offer (and, for the avoidance of doubt, shall not be effective if such PubCo Offer is
not consummated), or
(c) Subject to PubCo’s
rights under Section 4.6(h), the Exchange is permitted by the Board, in its sole discretion, in connection with circumstances
not otherwise set forth herein, if the Board determines, after consultation with its outside legal counsel and tax advisor, that the
Company would not be treated as a “publicly traded partnership” under Section 7704 of the Code (or any successor or
similar provision) as a result of or in connection with such Exchange.
“Permitted Transfer”
is defined in Section 9.1(b).
“Permitted Transferee”
means, with respect to any Member, (i) any Family Member of such Member and (ii) any Affiliate of such Member (including any
partner, shareholder or member controlling or under common control with such Member and Affiliated investment fund or vehicle of such
Member), but excluding any Affiliate under this clause (ii) who operates or engages in a business which competes with the
business of PubCo or the Company.
“Person”
means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability
company, entity or Governmental Entity.
“Piggyback Registration”
is defined in the Registration and Stockholder Rights Agreement.
“Plan Asset Regulations”
means the regulations issued by the U.S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of
the Code of Federal Regulations.
“Private Placement
Safe Harbor” means the “private placement” safe harbor set forth in Treasury Regulations Section 1.7704-1(h)(1).
“Profits”
or “Losses” means, for each Taxable Year or other taxable period, an amount equal to the Company’s taxable
income or loss for such year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income
or loss), with the following adjustments (without duplication):
(a) any
income or gain of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits or
Losses shall be added to such taxable income or loss;
(b) any
expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses,
shall be subtracted from such taxable income or loss;
(c) in
the event the Gross Asset Value of any Company asset is adjusted pursuant to clause (b) or (c) of the definition of Gross Asset
Value above, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of
the Company asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the Company asset) from the disposition of
such asset and shall, except to the extent allocated pursuant to Section 5.2, be taken into account for purposes of computing
Profits or Losses;
(d) gain
or loss resulting from any disposition of Company assets with respect to which gain or loss is recognized for U.S. federal income tax
purposes shall be computed with reference to the Gross Asset Value of the asset disposed of notwithstanding that the adjusted tax basis
of such asset differs from its Gross Asset Value;
(e) in
lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such period;
(f) to
the extent an adjustment to the adjusted tax basis of any asset pursuant to Code Section 734(b) is required, pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Account balances as a result of a distribution
other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or an item of loss (if the adjustment decreases such basis) from the disposition
of such asset and shall be taken into account for purposes of computing Profits or Losses; and
(g) any
items of income, gain, loss or deduction which are specifically allocated pursuant to the provisions of Section 5.2 shall
not be taken into account in computing Profits or Losses for any Taxable Year, but such items available to be specially allocated pursuant
to Section 5.2 shall be determined by applying rules analogous to those set forth in clauses (a) through (f) above.
“PubCo”
is defined in the preamble to this LLC Agreement.
“PubCo Board”
means the board of directors of PubCo, as constituted at any given time.
“PubCo Call Notice”
is defined in Section 4.6(f).
“PubCo Call Right”
means PubCo’s election, in accordance with Section 4.6(a)(ii) or Section 4.6(f), to directly purchase
Exchanged Units described in an Exchange Notice given by an Exchanging Member.
“PubCo Common
Stock” means all classes of common stock of PubCo, including the Class A Common Stock, the Class B Common Stock
and the Class V Common Stock.
“PubCo Manager”
is defined in Section 7.1(b)(i).
“PubCo Offer”
is defined in Section 4.1(h).
“PubCo Warrants”
has the meaning given to “Buyer Warrants” in the Business Combination Agreement.
“Push-Out Election”
is defined in Section 10.4(d).
“Quarterly Exchange
Date” means, either (x) for each fiscal quarter, the first (1st) Business Day occurring after the sixtieth
(60th) day after the expiration of the applicable Quarterly Exchange Notice Period or (y) such other date as the Board
shall determine in its sole discretion; provided that such date is at least sixty (60) days after the expiration of the Quarterly
Exchange Notice Period.
“Quarterly Exchange
Notice Period” means, for each fiscal quarter, the period commencing on the third (3rd) Business Day after the day on which
the Company releases its earnings for the prior fiscal period, beginning with the first such date that falls on or after the waiver or
expiration of any contractual lock-up period relating to the shares of PubCo that may be applicable to a Member (or such other date within
such quarter as the Board shall determine in its sole discretion) and ending five (5) Business Days thereafter. Notwithstanding
the foregoing, the Board may change the definition of Quarterly Exchange Notice Period with respect to any Quarterly Exchange Notice
Period scheduled to occur in a calendar quarter subsequent to the then-current calendar quarter if (x) the revised definition provides
for a Quarterly Exchange Notice Period occurring at least once in each calendar quarter, (y) the first Quarterly Exchange Notice
Period pursuant to the revised definition will occur no less than 10 Business Days from the date written notice of such change is sent
to each Member (other than PubCo and its wholly-owned Subsidiaries) and (z) the revised definition, together with the revised Quarterly
Exchange Date resulting therefrom, do not materially adversely affect the ability of the Members to exercise their Exchange Rights pursuant
to this LLC Agreement.
“Reclassification
Event” means any of the following: (a) any reclassification or recapitalization of PubCo Common Stock, a change in
par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination or any
transaction subject to Section 4.1(h)), (b) any merger, consolidation or other combination involving PubCo or (c) any
sale, conveyance, lease, or other disposal of all or substantially all the properties and assets of PubCo to any other Person, in each
of clauses (a), (b) or (c), as a result of which holders of PubCo Common Stock shall be entitled to receive cash, securities or
other property for their shares of PubCo Common Stock.
“Redemption Agreement(s)”
means the redemption agreement(s), dated on or prior to, and effective as of, the Ninth LLCA Effective Time, between the Company and
certain Ninth LLCA Existing Members, if any.
“Redemption Member”
is defined in Section 4.1(h)(i).
“Redemption Time”
is defined in Section 4.1(h)(i).
“Registration
and Stockholder Rights Agreement” means the Amended and Restated Registration and Stockholder Agreement, dated as of February 10,
2022, by and among PubCo, Thayer Ventures Acquisition Holdings LLC, certain of the Continuing Members and the other parties thereto (together
with any other parties that become a party thereto from time to time upon execution of a joinder in accordance with the terms thereof
by any successor or assign to any party to such Registration and Stockholder Rights Agreement).
“Registration
Statement” means any registration statement that PubCo is required to file pursuant to the Registration and Stockholder
Rights Agreement.
“Regulatory Allocations”
is defined in Section 5.2(i).
“Saks Warrant”
means that certain Warrant to Purchase Shares of Class A Common Stock of PubCo, dated as of March 13, 2023, by and between
Saks.com LLC, a Delaware limited liability company, and PubCo, as amended, restated, supplemented or otherwise modified from time to
time.
“Securities Act”
means the Securities Act of 1933.
“Specified Audit”
is defined in Section 10.4(d).
“Stock Exchange
Payment” means, with respect to any Exchange of Common Units for which a Stock Exchange Payment is elected by the Board,
a number of shares of Class A Common Stock equal to the number of Common Units so exchanged.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership, limited liability company, joint venture 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 Advances”
is defined in Section 10.5(a).
“Tax Amount”
means, with respect to a Taxable Year commencing after the Effective Time (or, in the case of a Taxable Year that includes the Effective
Time, the portion thereof after the Effective Time), the excess, if any, of (a) the product of (i) an amount, if positive,
equal to the product of (A) the taxable income of the Company allocable to a Member pursuant to this LLC Agreement (taking into
account corrective allocations made pursuant to Section 5.3(e)) with respect to the relevant Taxable Year (or portion thereof)
(determined based upon a good faith estimate by the Board and updated to reflect the final Company tax returns filed for such Taxable
Year, and, for purposes of this definition, (w) including adjustments to taxable income in respect of Section 704(c) of
the Code, (x) excluding adjustments to taxable income in respect of Section 734 or 743(b) of the Code, (y) calculated
as if allocations of such taxable income were, for such Taxable Year (or portion thereof), the sole source of income and loss for such
Member, (or, as appropriate, of its direct or indirect partners or members), and (z) taking into account the carryover of items
of loss, deduction and expense, including the utilization of any excess business interest expense under Code Section 163(j), previously
allocated to such Member for a Taxable Year (or portion thereof) that begins after the Effective Time to the extent not previously taken
into account for purposes of determining the Tax Amount for a Taxable Year (or portion thereof), times (B) one-fourth (1/4) in the
case of the first quarter, one-half (1/2) in the case of the second quarter, three-fourths (3/4) in the case of the third quarter, and
one (1) in the case of the fourth quarter times (ii) the Assumed Rate with respect to such Taxable Year (or portion thereof),
over (b) the amount of distributions previously made to such Member pursuant to Section 6.2 with respect to such Taxable
Year (or portion thereof) after the Effective Time.
“Tax Distribution
Date” means April 10, June 10, September 10, and December 10 of each calendar year, which shall be
adjusted by the Board as reasonably necessary to take into account changes in estimated tax payment due dates for U.S. federal income
taxes under applicable Law (but in no event shall the Board make adjustments such that there are more than four (4) Tax Distribution
Dates in any calendar year); provided, however, that if a Tax Distribution Date in a given calendar year is not a Business
Day, such Tax Distribution Date shall be the Business Day immediately prior to such date.
“Tax Distributions”
is defined in Section 6.2.
“Tax Receivable
Agreement” means that certain tax receivable agreement, dated as of February 10, 2022, by and among PubCo, the Company,
and the other parties thereto.
“Taxable Year”
means the Company’s taxable year for U.S. federal income tax purposes, which shall end on December 31 of each calendar year
unless otherwise required by applicable Law.
“Trading Day”
means a day on which the New York Stock Exchange or such other principal United States securities exchange on which the Class A
Common Stock is listed, quoted or admitted to trading and is open for the transaction of business (unless such trading shall have been
suspended for the entire day).
“Transfer”
means, when used as a noun, any voluntary or involuntary, direct or indirect, transfer, sale, pledge, hedge, encumbrance, or hypothecation
or other disposition, or legally binding agreement to undertake any of the foregoing, by the Transferor (whether by operation of law
or otherwise) and, when used as a verb, the Transferor voluntarily or involuntarily, directly or indirectly, transfers, sells, pledges,
hedges, encumbers or hypothecates or otherwise disposes of (whether by operation of law or otherwise), or agrees (in a legally binding
manner) to do any of the foregoing, including, in each case, (a) the establishment or increase of a put equivalent position or liquidation
with respect to, or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect
to, any security or (b) entry into any swap or other arrangement that transfers to another Person, in whole or in part, any of the
economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in
cash or otherwise; provided that any such indirect pledge, encumbrance or hypothecation that does not provide the counterparty
thereto the right to take direct possession, as the holder of record, of any Units shall not be considered a “Transfer” for
purposes of this LLC Agreement. The terms “Transferee,” “Transferor,” “Transferred,” and other forms
of the word “Transfer” shall have the correlative meanings.
“Treasury Regulations”
means pronouncements, as amended from time to time, or their successor pronouncements, which clarify, interpret and apply the provisions
of the Code, and which are designated as “Treasury Regulations” by the United States Department of the Treasury.
“Undertaking”
is defined in Section 7.6(b).
“Units”
means the Common Units, any other Equity Securities of the Company, and any rights to payments as a holder of any of the foregoing, but
excluding any rights under any court-authorized charging order.
“VWAP”
means the daily per share volume-weighted average price of the Class A Common Stock, with respect to measurement periods (or portions
thereof) following the Effective Time, on the New York Stock Exchange or such other principal United States securities exchange on which
the shares of Class A Common Stock, as applicable, are listed, quoted or admitted to trading, as displayed under the heading Bloomberg
VWAP on the Bloomberg page designated for the Class A Common Stock (or the equivalent successor if such page is not available)
in respect of the period from the open of trading on such Trading Day until the close of trading on such Trading Day (or if such volume-weighted
average price is unavailable, (a) the per share volume-weighted average price of a share of Class A Common Stock on such Trading
Day (determined without regard to afterhours trading or any other trading outside the regular trading session or trading hours), or (b) if
such determination is not feasible, the market price per share of Class A Common Stock as determined by a nationally recognized
independent investment banking firm retained in good faith for this purpose by PubCo); provided, however, that if at any
time for purposes of the Class A 5-Day VWAP, shares of Class A Common Stock are not then listed, quoted or traded on a principal
United States securities exchange or automated or electronic quotation system, then the VWAP shall mean the per share Appraiser FMV of
one (1) share of Class A Common Stock (or such other Equity Security into which the Class A Common Stock was converted
or exchanged).
Section 1.2 Interpretive
Provisions. For all purposes of this LLC Agreement, except as otherwise provided in this LLC Agreement or unless the context
otherwise requires:
(a) the
terms defined in Section 1.1 are applicable to the singular as well as the plural forms of such terms;
(b) an
accounting term not otherwise defined in this LLC Agreement has the meaning assigned to it under GAAP;
(c) all
references to currency, monetary values and dollars set forth in this LLC Agreement shall mean United States (U.S.) dollars and all payments
under this LLC Agreement shall be made in United States dollars;
(d) when
a reference is made in this LLC Agreement to an Article, Section, clause, Exhibit or Schedule, such reference is to an Article,
Section or clause of, or an Exhibit or Schedule to, this LLC Agreement unless otherwise indicated;
(e) whenever
the words “include”, “includes” or “including” are used
in this LLC Agreement, they shall be deemed to be followed by the words “without limitation”;
(f) “or”
is not exclusive;
(g) pronouns
of any gender or neuter shall include, as appropriate, the other pronoun forms;
(h) references
in this LLC Agreement to any Law shall be deemed also to refer to such Law, any amendments thereto, any successor provisions thereof,
and all rules and regulations promulgated thereunder; and
(i) the
words “hereof,” “herein” and “hereunder” and words of similar
import, when used in this LLC Agreement, refer to this LLC Agreement as a whole and not to any particular provision of this LLC Agreement.
ARTICLE II
ORGANIZATION OF THE LIMITED LIABILITY COMPANY
Section 2.1 Formation.
The Company shall continue its existence as a limited liability company subject to the provisions of the Act upon the terms, provisions
and conditions set forth in this LLC Agreement.
Section 2.2 Filing.
The Company’s certificate of formation was filed with the Secretary of State of the State of Delaware by an “authorized person”
of the Company in accordance with the Act. Each Manager is hereby designated as an “authorized person” of the Company within
the meaning of the Act. The Members shall execute such further documents (including amendments to such Certificate of Formation) and
take such further action as is appropriate to comply with the requirements of Law for the operation of a limited liability company in
all states and counties in which the Company may conduct business.
Section 2.3 Name.
The name of the Company is “Inspirato LLC” and all business of the Company shall be conducted in such name
or, in the discretion of the Board, under any other name.
Section 2.4 Registered
Office: Registered Agent. The location of the registered office of the Company in the State of Delaware shall be the office of
the initial registered agent named in the Company’s Certificate of Formation, or at such other place as the Board may select from
time to time in accordance with Act. The name and address for service of process on the Company in the State of Delaware shall be the
registered agent named in the Company’s Certificate of Formation, or such other qualified Person and address as the Board may designate
from time to time in accordance with the Act.
Section 2.5 Principal
Place of Business. The principal place of business of the Company shall be located in such place as is determined by the Board
from time to time.
Section 2.6 Purpose;
Powers. The nature of the business or purposes to be conducted by the Company is to engage in any lawful act or activity for
which limited liability companies may be formed under the Act. The Company shall have the power and authority to take any and all actions
and engage in any and all activities necessary, appropriate, desirable, advisable, ancillary or incidental to the accomplishment of the
foregoing purpose.
Section 2.7 Term.
The term of the Company commenced on the date of filing of the certificate of formation of the Company with the office of the Secretary
of State of the State of Delaware in accordance with the Act and shall continue indefinitely. The Company may be dissolved and its affairs
wound up only in accordance with Article XI.
Section 2.8 Intent.
It is the intent of the Members that the Company be operated in a manner consistent with its treatment as a “partnership”
for U.S. federal and applicable state and local income and franchise tax purposes. The Company and each Member shall file all tax returns
and shall otherwise take all tax, financial and other reporting positions in a manner consistent with such treatment. Neither the Company
nor any Member shall take any action inconsistent with the intent of the Parties set forth in this Section 2.8. No election
(including an entity classification election for the Company) contrary to the intent of the Parties as set forth in this Section 2.8
shall be made by the Company or any Member, and the Company shall not convert into or merge into (with the Company not being the
surviving entity in such merger) an entity treated as a corporation for U.S. federal or applicable state and local income or franchise
tax purposes. Notwithstanding anything to the contrary set forth in this Section 2.8, this Section 2.8 shall
not prevent the Company from entering into or consummating any transaction which constitutes a Change of Control to the extent such transaction
is duly authorized by the Board in accordance with this LLC Agreement, subject to the rights set forth in the Tax Receivable Agreement,
if any, applicable to such transaction.
ARTICLE III
TRANSACTIONS RELATED TO THE BUSINESS COMBINATION AGREEMENT
Section 3.1 Transactions
That Occurred Prior to the Business Combination Agreement Transactions. Immediately upon the Ninth LLCA Effective Time and in
any event, prior to the Blocker Effective Time, the following transactions were consummated in the order set forth below: (a) at
the Ninth LLCA Effective Time, the admission of PubCo as a Member, pursuant to the terms of the Existing LLC Agreement, (b) at the
Ninth LLCA Effective Time, the conversion of each Unit (as defined in the Eighth A&R LLC Agreement) held by the Ninth LLCA Existing
Members into the number of Common Units listed opposite such Ninth LLCA Existing Member’s name on Exhibit A-1 to the Existing
LLC Agreement; and (c) immediately following the effectiveness of (a) and (b) above, the redemption of Common Units held
by certain of the Ninth LLCA Existing Members pursuant to Section 4.1(h) of the Existing LLC Agreement.
Section 3.2 Business
Combination Agreement Transactions. Pursuant to the terms of the Business Combination Agreement and for the consideration set
forth in the Business Combination Agreement, as of the Effective Time, Company Merger Sub merged with and into the Company, with the
Company continuing as the surviving entity and a Subsidiary of PubCo. Following the consummation of the transactions contemplated by
the Business Combination Agreement, at the Effective Time, PubCo and each of its wholly owned Subsidiaries were issued the number of
Common Units set forth next to its name on Exhibit A to the Existing LLC Agreement under the heading “Effective Time Common
Units” and each such wholly owned Subsidiary of PubCo was admitted as a Member, the Common Units held by each Continuing Member
as of immediately prior to the Effective Time were cancelled pursuant to the Business Combination Agreement, and each Continuing Member
was issued the number of Common Units, as applicable, set forth next to each such Member’s name on Exhibit A to the Existing
LLC Agreement under the heading “Effective Time Common Units” in exchange for the limited liability company interests in
the Company held by such Continuing Members immediately prior to the Effective Time, and each such Continuing Member continued as a member
of the Company, all without the action of any other Person. The total number of Common Units held by the Continuing Members, PubCo and
each of PubCo’s wholly owned Subsidiaries as of the Effective Time, including following the consummation of the transactions described
in Section 3.1, was set forth next to each such Member’s name on Exhibit A to the Existing LLC Agreement. The
number of shares of Class V Common Stock held by each Member (other than PubCo) shall equal to the number of Common Units held by
such Member after the Effective Time.
ARTICLE IV
OWNERSHIP AND CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
Section 4.1 Authorized
Units; General Provisions with Respect to Units.
(a) Units.
Subject to the provisions of this LLC Agreement, the Company shall be authorized to issue from time to time such number of Common Units
and other Equity Securities as the Board shall determine in accordance with and subject to the restrictions in this Section 4.1
and Section 4.3. Subject to this Section 4.1 and Section 4.3, each authorized Unit may be issued
pursuant to such agreements as the Board shall approve, including pursuant to warrants, options, or other rights or property to acquire
Units or that may be converted into Units. The Company may reissue any Units that have been repurchased or acquired by the Company; provided
that any such issuance, and the admission of any Person as a Member in connection therewith, is otherwise made in accordance with
and subject to the restrictions in this LLC Agreement. The Units shall be uncertificated. The Company shall not, and the Board shall
not cause the Company to, issue any Units if such issuance would violate the provisions of Section 9.1(c), mutatis mutandis,
if the Company were Transferor and the recipient of such Units were transferee.
(b) Outstanding
Units. Each Existing Member previously was admitted as a Member and shall continue as a Member of the Company at the LLCA Effective
Time. Except as otherwise provided in this LLC Agreement, each outstanding Common Unit shall be identical to each other Common Unit.
(c) Schedule
of Members. The Company shall maintain a schedule, appended hereto as Exhibit A (as updated and amended from time to
time in accordance with the terms of this LLC Agreement and current as of the date set forth therein), which shall include: (i) the
name and address of each Member and (ii) the aggregate number of and type of Units issued and outstanding and held by each Member.
(d) [Reserved].
(e) New
PubCo Issuances.
(i) Subject
to Section 4.6 and Section 4.1(e)(ii), if, at any time after the LLCA Effective Time, PubCo issues shares of
its Class A Common Stock, Class B Common Stock or any other Equity Security of PubCo (other than shares of Class V Common
Stock), (x) the Company shall concurrently issue to PubCo an equal number of Common Units (if PubCo issues shares of Class A
Common Stock or Class B Common Stock), or an equal number of such other Equity Security of the Company corresponding to the Equity
Securities issued by PubCo (if PubCo issues Equity Securities other than Class A Common Stock or Class B Common Stock), and
with 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 and (y) PubCo shall concurrently contribute to the Company the net proceeds or other property
received by PubCo, if any, for such shares of Class A Common Stock, Class B Common Stock or other Equity Securities.
(ii) Notwithstanding
anything to the contrary contained in Section 4.1(e)(i) or Section 4.1(e)(iii), this Section 4.1(e) shall
not apply to (x) the issuance and distribution to holders of shares of PubCo Common Stock of rights to purchase Equity Securities
of PubCo under a “poison pill” or similar shareholder rights plan (and upon exchange of Common Units for Class A Common
Stock, such Class A Common Stock shall be issued together with a corresponding right under such plan) or (y) the issuance under
PubCo’s employee benefit plans of any warrants, options, stock appreciation right, restricted stock, restricted stock units, performance
based award or other rights to acquire Equity Securities of PubCo or rights or property that may be converted into or settled in Equity
Securities of PubCo, but shall in each of the foregoing cases apply to the issuance of Equity Securities of PubCo in connection with
the exercise or settlement of such warrants, options, stock appreciation right, restricted stock units, performance based awards or the
vesting of restricted stock (including as set forth in clause (iii) below, as applicable).
(iii) In
the event any outstanding Equity Security of PubCo is exercised or otherwise converted and, as a result, any shares of Class A Common
Stock, Class B Common Stock or other Equity Securities of PubCo are issued (including as a result of the exercise of PubCo Warrants
or the Saks Warrant), (x) the corresponding Equity Security outstanding at the Company, if any, shall be similarly exercised or
otherwise converted, if applicable, (y) an equivalent number of Common Units or equivalent Equity Securities of the Company shall
be issued to PubCo as required by the first sentence of Section 4.1(e)(i), and (z) PubCo shall concurrently contribute
to the Company the net proceeds received by PubCo from any such exercise or conversion.
(f) PubCo
Debt Issuance. If at any time PubCo or any of its Subsidiaries (other than the Company and its Subsidiaries) issues Debt Securities,
PubCo or such Subsidiary shall transfer to the Company the net proceeds received by PubCo or such Subsidiary, as applicable, in exchange
for such Debt Securities in a manner that directly or indirectly burdens the Company with the repayment of the Debt Securities.
(g) New
Company Issuances. Except pursuant to Section 4.6, (x) the Company may not issue any additional Units to PubCo or
any of its Subsidiaries (other than the Company and its Subsidiaries) unless (i) substantially simultaneously therewith PubCo or
such Subsidiary issues or transfers an equal number of newly-issued shares of Class A Common Stock or Class B Common Stock
(or relevant Equity Security of such Subsidiary) to another Person or Persons, and (ii) such issuance is in accordance with Section 4.1(e),
and (y) the Company may not issue any other Equity Securities of the Company to PubCo or any of its Subsidiaries (other than the
Company and its Subsidiaries) unless (i) substantially simultaneously therewith PubCo or such Subsidiary issues or transfers, to
another Person or Persons, an equal number of newly-issued shares of Equity Securities of PubCo or such Subsidiary with substantially
the same rights to dividends and distributions (including distributions upon liquidation) and other economic rights as those of such
Equity Securities of the Company, and (ii) such issuance is in accordance with Section 4.1(e).
(h) Repurchases
and Redemptions.
(i) Immediately
following the Ninth LLCA Effective Time, and in any event prior to the Blocker Effective Time (the “Redemption Time”),
subject to assets of the Company being legally available therefor, all outstanding Common Units held by any Ninth LLCA Member who held
Common Units with an aggregate fair value, determined based on the Per Unit Unitholder Merger Consideration multiplied by the number
of Common Units held by such Ninth LLCA Member, equal to or less than $1.00 that had not executed and delivered a Redemption Agreement
(each, a “Redemption Member”) were automatically redeemed by the Company (the “Automatic Redemption”),
and such Ninth LLCA Member was entitled to receive a cash payment in an amount equal to the Per Unit Unitholder Merger Consideration
multiplied by the number of Common Units redeemed (with respect to each such Ninth LLCA Member, such Ninth LLCA Member’s “Redemption
Payment”). As soon as practicable after the Automatic Redemption, the Company delivered, or caused to be delivered, to
each Redemption Member the Redemption Payment to which such Redemption Member was entitled in exchange for such redeemed Common Units,
without interest. As of the Redemption Time, each Redemption Member (w) automatically ceased to be a Member of the Company, (x) had
no further rights as a Member under the Existing LLC Agreement or the Business Combination Agreement, (y) had no rights under (and
no rights to become a party to) the Tax Receivable Agreement and (z) had only the right to receive the Redemption Payment for which
such Redemption Member’s Common Units were redeemed, without interest. From and after the Automatic Redemption, the Company was
entitled to treat any certificates and book-entry interests representing the Common Units to be redeemed pursuant to Section 4.1(h)(i) of
the Existing LLC Agreement as redeemed and cancelled, notwithstanding the failure of the holder thereof to surrender such certificates
or book-entry interests and without any further action by or on behalf of the Company or such holder.
(ii) Subject
to Section 4.1(h)(iii), following the Effective Time, PubCo or any of its Subsidiaries (other than the Company and its Subsidiaries)
may redeem, repurchase or otherwise acquire (A) shares of Class A Common Stock or Class B Common Stock pursuant to a PubCo
Board approved repurchase plan or program (or otherwise in connection with a transaction approved by the PubCo Board) and, substantially
simultaneously therewith, the Company shall redeem, repurchase or otherwise acquire from PubCo or such Subsidiary an equal number of
Common Units for the same price per security, if any, or (B) any other Equity Securities of PubCo or any of its Subsidiaries (other
than the Company and its Subsidiaries) pursuant to a PubCo Board approved repurchase plan or program (or otherwise in connection with
a transaction approved by the PubCo Board) and, substantially simultaneously therewith, the Company shall redeem, repurchase or otherwise
acquire 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 liquidation) and other economic rights as those of such Equity
Securities of PubCo or such Subsidiary for the same price per security, if any.
(iii) In
the event that a tender offer, share exchange offer, or take-over bid or similar transaction with respect to Class A Common Stock
(a “PubCo Offer”) is proposed by PubCo or is proposed to PubCo or its stockholders at any time following the
Effective Time, the holders of Common Units (other than PubCo and its wholly-owned Subsidiaries) shall be permitted to participate in
such PubCo Offer by delivery of an Exchange Notice (which Exchange Notice shall be effective immediately prior to the consummation of
such PubCo Offer or such other time or upon the happening of such event as may be specified therein (and, for the avoidance of doubt,
shall be contingent upon such PubCo Offer and not be effective if such PubCo Offer is not consummated)). In the case of a PubCo Offer
proposed by PubCo, PubCo shall use its reasonable best efforts to take all such actions and do all such things as are necessary or desirable
to enable and permit the holders of Common Units to participate in such PubCo Offer to the same extent or on an economically equivalent
basis as the holders of shares of Class A Common Stock without discrimination; provided that, without limiting the generality
of this sentence (and without limiting the ability of any Member holding Common Units to consummate an Exchange at any time pursuant
to the terms of this LLC Agreement), the Board shall use its reasonable best efforts to ensure that such holders of Common Units may
participate in such PubCo Offer without being required to Exchange their Common Units and cancel their shares of Class V Common
Stock, as the case may be, (or, if so required, to ensure that any such Exchange and cancelation shall be effective only upon or immediately
prior to, and shall be conditional upon, the closing of the transactions contemplated by the PubCo Offer). For the avoidance of doubt,
in no event shall such holders of Common Units be entitled to receive in such PubCo Offer aggregate consideration for each Common Unit
and share of Class V Common Stock, taken together, that is greater than or less than the consideration payable in respect of each
share of Class A Common Stock in connection with such PubCo Offer (it being understood that payments under or in respect of the
Tax Receivable Agreement shall not be considered part of any such consideration).
(iv) Following
the Effective Time, the Company may not redeem, repurchase or otherwise acquire (x) any 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 pursuant to a PubCo Board approved repurchase plan or program (or otherwise in connection with a transaction approved by the
PubCo Board) an equal number of shares of Class A Common Stock and/or Class B Common Stock for the same price per security
from holders thereof or (y) 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 pursuant
to a PubCo Board approved repurchase plan or program (or otherwise in connection with a transaction approved by the PubCo Board) 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 upon liquidation) and other economic rights as
those of such Equity Securities of PubCo or such Subsidiary.
(v) Notwithstanding
the foregoing clauses (i) through (iv), to the extent that any consideration payable by PubCo in connection with the redemption,
repurchase or acquisition of any shares of Class A Common Stock, Class B Common Stock or other Equity Securities of PubCo or
any of its Subsidiaries (other than the Company and its Subsidiaries) consists (in whole or in part) of shares of Class A Common
Stock, Class B Common Stock or such other Equity Securities (including in connection with the cashless exercise of an option or
warrant (or other convertible right or security)) other than under PubCo’s employee benefit plans for which there is no corresponding
Common Units or other Equity Securities of the Company, then the redemption, repurchase or acquisition of the corresponding Common Units
or other Equity Securities of the Company shall be effectuated in an equivalent manner.
(i) Equity
Subdivisions and Combinations.
(i) From
and after the Effective Time, the Company shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification,
recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding
Units unless accompanied by an identical subdivision or combination, as applicable, of the outstanding PubCo Common Stock or other related
class or series of Equity Security of PubCo, with corresponding changes made with respect to any other exchangeable or convertible Equity
Securities of the Company and PubCo.
(ii) Except
in accordance with Section 4.6(c), PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution,
reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise)
of the outstanding PubCo Common Stock or any other class or series of Equity Security of PubCo, unless accompanied by an identical subdivision
or combination, as applicable, of the outstanding Units or other related class or series of Equity Security of the Company, with corresponding
changes made with respect to any applicable exchangeable or convertible Equity Securities of the Company and PubCo.
(j) General
Authority. For the avoidance of doubt, but subject to Sections 4.1(a), (e), (g), (h) and (i) and
Section 4.3, after the Effective Time, the Company (and the Board on behalf of the Company) and PubCo shall be permitted
to undertake all actions, including an issuance, redemption, reclassification, distribution, division or recapitalization, with respect
to the Common Units, to maintain at all times a one-to-one ratio between (i) the number of Common Units owned by PubCo, directly
or indirectly, and the aggregate number of outstanding shares of Class A Common Stock and Class B Common Stock, and (ii) the
number of outstanding shares of Class V Common Stock held by any Person (other than PubCo and its wholly-owned Subsidiaries) and
the number of Common Units held by such Person disregarding, for purposes of maintaining the one-to-one ratios in clauses (i) and
(ii), (A) options, rights or securities of PubCo issued under any plan involving the issuance of any Equity Securities that are
convertible into or exercisable or exchangeable for Class A Common Stock or Class B Common Stock, (B) treasury stock,
or (C) preferred stock or other debt or equity securities (including warrants, options or rights) issued by PubCo that are convertible
into or exercisable or exchangeable for Class A Common Stock or Class B Common Stock (but in each case prior to such conversion
or exchange).
Section 4.2 Capital
Contributions. Except as otherwise set forth in this LLC Agreement, no Member shall be required to make additional Capital Contributions
to the Company.
Section 4.3 Issuance
of Additional Units. Subject to the terms and conditions of this LLC Agreement (including Section 4.1 and this Section 4.3),
the Board shall have the right to authorize and cause the Company to issue on such terms (including price) as may be determined by the
Board (a) additional Common Units or Equity Securities in the Company having such rights, preferences and privileges as determined
by the Board, which rights, preferences and privileges may be senior to the Units, and (b) obligations, evidences of Indebtedness
or other securities or interests convertible or exchangeable for Units or other Equity Securities in the Company; provided that
at any time following the date hereof, in each case the Company shall not issue Equity Securities in the Company to any Person other
than PubCo or then-existing Members unless such Person shall have executed a counterpart to this LLC Agreement and all other documents,
agreements or instruments deemed necessary or desirable as determined in good faith by the Board. Upon any such issuance and execution,
(a) such Person shall be admitted as a Member of the Company, and (b) the Board or the Officers shall update the Company’s
books and records and amend Exhibit A to reflect such issuance. Subject to Section 4.1, this Section 4.3
and Section 12.1, the Board is hereby authorized to amend this LLC Agreement to set forth the designations, preferences,
rights, powers and duties of such additional Common Units or other Equity Securities in the Company authorized or issued pursuant to
this Section 4.3.
Section 4.4 Capital
Accounts. A Capital Account shall be maintained by the Company for each Member in accordance with the provisions of Treasury
Regulations Section 1.704-1(b)(2)(iv) and, to the extent consistent with such regulations, the other provisions of this LLC
Agreement. Each Member’s Capital Account shall be (a) increased by (i) allocations to such Member of Profits pursuant
to Section 5.1 and any other items of income or gain allocated to such Member pursuant to Section 5.2, (ii) the
amount of cash or the initial Gross Asset Value of any asset (net of any Liabilities assumed by the Company and any Liabilities to which
the asset is subject) contributed to the Company by such Member, and (iii) any other increases allowed or required by Treasury Regulations
Section 1.704-1(b)(2)(iv), and (b) decreased by (i) allocations to such Member of Losses pursuant to Section 5.1
and any other items of deduction or loss allocated to such Member pursuant to the provisions of Section 5.2, (ii) the
amount of any cash or the Gross Asset Value of any asset (net of any Liabilities assumed by the Member and any Liabilities to which the
asset is subject) distributed to such Member, and (iii) any other decreases allowed or required by Treasury Regulations Section 1.704-1(b)(2)(iv).
In the event of a Transfer of Units made in accordance with this LLC Agreement (including a deemed Transfer for U.S. federal income tax
purposes as described in Section 4.6(i)), the Capital Account of the Transferor that is attributable to the Transferred Units
shall carry over to the Transferee Member in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(l).
This Section 4.4 and other provisions of this LLC Agreement relating to the maintenance of Capital Accounts are intended
to comply with the Treasury Regulations promulgated under Code Section 704(b), including Treasury Regulation Section 1.704-1(b)(2)(iv),
and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In determining the amount of any Liability
for purposes of calculating Capital Accounts, there shall be taken into account Section 752(c) of the Code and any other applicable
provisions of the Code and Treasury Regulations. The Members’ Capital Accounts will normally be adjusted on an annual or other
periodic basis as determined by the Board, but the Capital Accounts may be adjusted more often if a new Member is admitted to the Company
or if circumstances otherwise make it advisable in the judgment of the Board.
Section 4.5 Other
Matters Regarding Capital Contributions.
(a) The
Company shall not be obligated to repay any Capital Contributions of any Member. Under circumstances requiring a return of any Capital
Contributions, no Member has the right to receive property other than cash.
(b) No
Member shall receive any interest, salary, compensation or reimbursement with respect to its Capital Contributions or its Capital Account,
or for services rendered or expenses incurred on behalf of the Company or otherwise in its capacity as a Member, except as otherwise
provided in Section 7.9 or other provisions of this LLC Agreement.
(c) A Member shall not
be required to restore a deficit balance in such Member’s Capital Account, to lend any funds to the Company or to make any additional
contributions or payments to the Company.
Section 4.6 Exchange
of Common Units.
(a) Exchange
Procedures.
(i) Each
Member (other than PubCo and its wholly-owned Subsidiaries) shall be entitled to cause the Company to redeem (an “Exchange”)
its Common Units (excluding, for the avoidance of doubt, any Common Units that are subject to vesting conditions or rights of repurchase
or risk of forfeiture, or are subject to Transfer limitations pursuant to this LLC Agreement or any other agreement) in whole or in part
(the “Exchange Right”) from time to time following the end of the Lock-Up Period and the waiver or expiration
of any contractual lock-up period relating to the shares of PubCo that may be applicable to such Member. A Member desiring to exercise
its Exchange Right (each, an “Exchanging Member”) shall exercise such right by giving written notice (the “Exchange
Notice”) to the Company, with a copy to PubCo, which Exchange Notice shall be in the form set forth on Exhibit B,
shall include all information required to be included therein, and may be submitted on any Business Day that is not during an Exchange
Blackout Period (if applicable to such Exchanging Member), if (A) the applicable Exchange is in connection with a Permitted Exchange
Event or (B) the Company meets the requirements of the Private Placement Safe Harbor (each of (A) and (B), an “Unrestricted
Exchange”), or, in any case other than an Unrestricted Exchange, during the Quarterly Exchange Notice Period preceding
the desired Exchange Date. In the event that an Exchange is being exercised in order to participate in a Piggyback Registration, the
Exchange Notice Date shall be prior to the expiration of the time period in which a holder of securities is required to notify PubCo
that it wishes to participate in such Piggyback Registration in accordance with Section 2.2 of the Registration and Stockholder
Rights Agreement. The Exchange Notice shall specify the number of Common Units (subject, in the case of an Exchange that is not an Unrestricted
Exchange, to the Minimum Exchange Amount, it being understood that a Member may specify in its Exchange Notice a number of Common Units
in excess of the Minimum Exchange Amount) (the “Exchanged Units”) that the Exchanging Member intends to have
the Company redeem and either (X) with respect to any Unrestricted Exchange, a date not less than three (3) Business Days nor
more than ten (10) Business Days after the delivery of such Exchange Notice (unless, and to the extent, that the Board in its sole
discretion agrees in writing to waive such time periods), or (Y) in any other case, the Quarterly Exchange Date, which date in each
case shall be the date on which the exercise of the Exchange Right shall be completed (as applicable, the “Exchange Date”);
provided, that solely with respect to Unrestricted Exchanges, the Company, PubCo and the Exchanging Member may change the number
of Exchanged Units and/or the Exchange Date specified in such Exchange Notice to another number and/or date by mutual agreement signed
in writing by each of them; provided, further, that the Company and PubCo shall not be required to comply with an Exchange
Notice delivered in connection with an Exchange that is not an Unrestricted Exchange if such Exchange Notice does not comply with the
Minimum Exchange Amount (and such Exchange Notice shall be deemed null and void ab initio and ineffective with respect to the
Exchange specified therein); provided, further, that any Exchange that is an Unrestricted Exchange may be conditioned (including
as to timing) by the Exchanging Member (in the Exchanging Member’s sole discretion) on (i) PubCo and/or the Exchanging Member
having entered into a valid and binding agreement with a third party for the sale of shares of Class A Common Stock that may be
issued in connection with such proposed Exchange (whether in a tender or exchange offer, private sale or otherwise) and such agreement
is subject to customary closing conditions for agreements of this kind and the delivery of the Class A Common Stock by PubCo or
the Exchanging Member, as applicable, to such third party, (ii) the closing of an announced merger, consolidation or other transaction
or event in which the shares of Class A Common Stock that may be issued in connection with such proposed Exchange would be exchanged
or converted or become exchangeable or convertible into cash or other securities or property and/or (iii) the closing of an underwritten
distribution of the shares of Class A Common Stock that may be issued in connection with such proposed Exchange; provided,
further, that if PubCo closes an underwritten distribution of the shares of Class A Common Stock and the Members (other than,
or in addition to, PubCo) were entitled to resell shares of Class A Common Stock in connection therewith (by the exercise by such
Members of the Exchange Right for the applicable Stock Exchange Payment or otherwise) (a “Secondary Offering”),
then, except as provided in the following proviso, the immediately succeeding Quarterly Exchange Date shall be automatically cancelled
and of no force or effect (and no Member shall be entitled to exercise its Exchange Right or deliver a Quarterly Exchange Date Notice
with respect to a redemption that is not an Unrestricted Exchange in respect of such Quarterly Exchange Date); provided, further
that the Company may effect an Exchange if the Board determines (in its sole discretion, but subject to PubCo’s rights under
Section 4.6(h)), after consultation with its legal counsel and tax advisors, that such Exchange, together with any other
Exchanges that have occurred or are expected to occur, would not be reasonably likely to result in the Company being treated as a “publicly
traded partnership” within the meaning of Section 7704 of the Code. Notwithstanding anything to the contrary in this LLC Agreement
or the Registration and Stockholder Rights Agreement, (a) for so long as the Company does not meet the requirements of the Private
Placement Safe Harbor, any such Secondary Offering (other than pursuant to which all Exchanges are Unrestricted Exchanges) shall only
be undertaken if, during the applicable Taxable Year, the total number of Quarterly Exchange Dates and prior Secondary Offerings (other
than any pursuant to which all Exchanges are Unrestricted Exchanges) on which Exchanges occur is three (3) or fewer and (b) the
Company and PubCo shall not be deemed to have failed to comply with their respective obligations under the Registration and Stockholder
Rights Agreement if a Secondary Offering cannot be undertaken due to the restriction set forth in the preceding clause (a). Subject to
Section 4.6(f) and unless the Exchanging Member timely has retracted or delayed an Exchange as provided in Section 4.6(a)(iii) or
Section 4.6(a)(iv), on the Exchange Date (to be effective immediately prior to the close of business on the Exchange Date):
(A) the
Exchanging Member shall transfer and surrender, free and clear of all liens and encumbrances (x) the Exchanged Units to the Company,
and (y) a number of shares of Class V Common Stock equal to the number of Exchanged Units to PubCo to the extent applicable;
(B) the
Company shall (x) cancel the Exchanged Units, (y) transfer to the Exchanging Member the consideration to which the Exchanging
Member is entitled under Section 4.6(b), and (z) if the Units are certificated, issue to the Exchanging Member a certificate
for a number of Common Units equal to the difference (if any) between the number of Common Units evidenced by the certificate surrendered
by the Exchanging Member pursuant to clause (A) of this Section 4.6(a)(i) and the Exchanged Units; and
(C) PubCo
shall cancel for no consideration the shares of Class V Common Stock (and PubCo shall take all actions necessary to retire such
shares transferred to PubCo and such shares shall not be re-issued by PubCo) upon a transfer of such shares of Class V Common Stock
that were Transferred pursuant to Section 4.6(a)(i)(A)(y), above.
(ii) Within
three (3) Business Days of the giving of an Exchange Notice, the Board may elect to settle all or a portion of the Exchange in cash
in an amount equal to the Cash Exchange Payment (in lieu of shares of Class A Common Stock), exercisable by giving written notice
of such election to the Exchanging Member within such three (3) Business Day period (such notice, the “Cash Exchange
Notice”). The Cash Exchange Notice shall set forth the portion of the Common Units subject to the Exchange which shall
be exchanged for cash in lieu of Class A Common Stock. To the extent such Exchange relates to the exercise of the Exchanging Member’s
registration rights under Article II of the Registration and Stockholder Rights Agreement, PubCo and the Company shall cooperate
in good faith with such Exchanging Member to exercise such Exchange in a manner which preserves such Exchanging Member’s rights
thereunder. At any time following the giving of a Cash Exchange Notice and prior to the Exchange Date, the Board may elect (exercisable
by giving written notice of such election to the Exchanging Member) to revoke the Cash Exchange Notice with respect to all or any portion
of the Exchanged Units and make the Stock Exchange Payment with respect to any such Exchanged Units on the Exchange Date.
(iii) In
the event the Board does not timely give a Cash Exchange Notice (or revokes a Cash Exchange Notice in accordance with the foregoing clause
(ii)) in connection with an exchange that is an Unrestricted Exchange, the Exchanging Member may, if and only if any Exchange Condition
exists, elect to (x) retract its Exchange Notice or (y) delay the consummation of an Exchange, in each case, exercisable by
giving written notice of such election to the Company within two (2) Business Days of the occurrence of an Exchange Condition and
in any event no later than one (1) Business Day prior to the Exchange Date (such notice under clause (y), an “Exchange
Delay Notice”); provided that any such notice must specify the particular Exchange Condition giving rise to such
election. The giving of any notice pursuant to clause (x) shall terminate all of the Exchanging Member’s and Company’s
rights and obligations under this Section 4.6 arising from such retracted Exchange Notice, but shall not count against the
maximum number of Exchanges that an Exchanging Member may effect in a calendar quarter.
(iv) Subject
to the last two sentences of this Section 4.6(a)(iv), if, in the case of an Exchange that is not an Unrestricted Exchange,
an Exchanging Member desires to revoke its Exchange Notice, such Exchanging Member shall give written notice of such election to the
Board no later than three (3) Business Days prior to the Exchange Date. Such notice of revocation may be accepted or refused in
the sole discretion of the Board. If such notice of revocation is delivered timely and accepted by the Board, such notice under this
Section 4.6(a)(iv) shall terminate all of the Exchanging Member’s, Company’s and PubCo’s rights and
obligations under this Section 4.6 arising from the Exchange Notice. An Exchanging Member may only revoke an Exchange under
this Section 4.6(a)(iv) once in every twelve (12)-month period (and any additional notice purporting to revoke an Exchange
shall be deemed null and void ab initio, without any action by or on behalf of the Company or the Board, and ineffective with respect
to the revocation of the Exchange specified therein). An Exchanging Member who successfully revoked an Exchange under this Section 4.6(a)(iv) may
not participate in the Exchange to occur on the next Quarterly Exchange Date immediately following the Quarterly Exchange Date with respect
to which such notice of revocation pertains.
(v) In
the event of a Continuing Member COC, the Board may elect, pursuant to a written notice given to the Members (other than PubCo and its
wholly-owned Subsidiaries) at least thirty (30) days prior to the consummation of a Continuing Member COC (a “COC Notice”),
to require each such Member to effect an Exchange with respect to any portion of such Member’s Common Units (together with the
surrender and cancellation of the corresponding number of outstanding shares of Class V Common Stock held by such Member) (any such
exchange, a “COC Exchange”) which shall be effective immediately prior to the consummation of the Continuing
Member COC (but such Exchange shall be conditioned on the consummation of such Continuing Member COC, and shall not be effective if such
Continuing Member COC is not consummated) (the “COC Exchange Date”). In connection with a COC Exchange, such
Exchange shall be settled (including, if PubCo elects by delivery of a COC Notice, directly by PubCo) (x) with the Stock Exchange
Payment with respect to the Common Units subject to the COC Exchange or (y) in cash or property, so long as in each case each such
Member receives the identical consideration, on a per Unit basis, that the holder of a share of Class A Common Stock would receive
in connection with such Continuing Member COC.
(vi) For
purposes of this Section 4.6 (and defined terms and provisions related thereto), all decisions, determinations, elections
and other actions to be taken by the Board or PubCo shall require the approval of the Disinterested Majority.
(b) Exchange
Payment. The Exchange shall be consummated on the Exchange Date. Unless PubCo has exercised its PubCo Call Right pursuant to Section 4.6(f),
on the Exchange Date (to be effective immediately prior to the close of business on the Exchange Date or such other time prior to the
Exchange Date as PubCo may reasonably determine) (i) PubCo shall contribute to the Company for delivery to the Exchanging Member
(x) the Stock Exchange Payment with respect to any Exchanged Units not subject to a Cash Exchange Notice and (y) the Cash Exchange
Payment with respect to any Exchanged Units subject to a Cash Exchange Notice, (ii) the Exchanging Member shall transfer and surrender
the Exchanged Units to the Company, free and clear of all liens and encumbrances, (iii) the Company shall issue to PubCo a number
of Common Units equal to the number of Common Units surrendered pursuant to clause (ii), (iv) solely to the extent necessary in
connection with an Exchange, PubCo shall undertake all actions, including an issuance, reclassification, distribution, division or recapitalization,
with respect to the Class A Common Stock to maintain a one-to-one ratio between the number of Common Units owned by PubCo, directly
or indirectly, and the number of outstanding shares of Class A Common Stock, taking into account the issuance in clause (iii), any
Stock Exchange Payment, and any other action taken in connection with this Section 4.6, (v) the Company shall (x) cancel
the redeemed Common Units which were Exchanged Units held by the Exchanging Member and (y) transfer to the Exchanging Member the
Cash Exchange Payment and/or the Stock Exchange Payment, as applicable, and (vi) PubCo shall cancel the surrendered shares of Class V
Common Stock. On or prior to the Exchange Date, and as a condition to the Exchange, the Exchanging Member shall make any applicable Certificate
Delivery. Upon the Exchange of all of a Member’s Units, such Member shall cease to be a Member of the Company.
(c) Splits,
Distributions and Reclassifications. If there is any reclassification, reorganization, recapitalization or other similar transaction
in which the shares of Class A Common Stock are converted or changed into another security, securities or other property, this Section 4.6
shall continue to be applicable, mutatis mutandis, with respect to such security or other property. This Section 4.6(c) is
intended to preserve the intended economic effect of Section 4.1 and this Section 4.6 and to put each Member
in the same economic position, to the greatest extent possible, with respect to Exchanges as if such reclassification, reorganization,
recapitalization or other similar transaction had not occurred and shall be interpreted in a manner consistent with such intent.
(d) PubCo
Covenants. PubCo shall at all times keep available, solely for the purpose of issuance upon an Exchange, out of its authorized but
unissued shares of Class A Common Stock, such number of shares of Class A Common Stock that shall be issuable upon the Exchange
of all outstanding Common Units (other than those Common Units held by PubCo or any Subsidiary of PubCo); provided that nothing
contained in this LLC Agreement shall be construed to preclude PubCo from satisfying its obligations with respect to an Exchange by delivery
of a Cash Exchange Payment or shares of Class A Common Stock that are held in treasury of PubCo. PubCo covenants that all shares
of Class A Common Stock that shall be issued upon an Exchange shall, upon issuance thereof, be validly issued, fully paid and non-assessable,
free and clear of all liens and encumbrances. In addition, for so long as the shares of Class A Common Stock are listed on a stock
exchange or automated or electronic quotation system, PubCo shall cause all shares of Class A Common Stock issued upon an Exchange
to be listed on such stock exchange or automated or electronic quotation system at the time of such issuance. For purposes of this Section 4.6(d),
references to the “Class A Common Stock” shall be deemed to include any Equity Securities issued or issuable
as a result of any reclassification, combination, subdivision or similar transaction of the Class A Common Stock that any Member
would be entitled to receive pursuant to Section 4.6(c).
(e) Exchange
Taxes. The issuance of shares of Class A Common Stock upon an Exchange shall be made without charge to the Exchanging Member
for any stamp or other similar tax in respect of such issuance; provided, however, that if any such shares of Class A
Common Stock are to be issued in a name other than that of the Exchanging Member (subject to the restrictions in Article IX),
then the Person or Persons in whose name the shares are to be issued shall pay to PubCo the amount of any additional tax that may be
payable in respect of any Transfer involved in such issuance in excess of the amount otherwise due if such shares were issued in the
name of the Exchanging Member or shall establish to the satisfaction of PubCo that such additional tax has been paid or is not payable.
(f) PubCo
Call Rights. Notwithstanding anything to the contrary contained in this Section 4.6, with respect to any Exchange Notice
or COC Notice, an Exchanging Member shall be deemed to have offered to sell its Exchanged Units as described in any Exchange Notice directly
to PubCo (rather than to the Company), and PubCo may, by delivery of a written notice to the Exchanging Member no later than three (3) Business
Days following the giving of an Exchange Notice, in accordance with, and subject to the terms of, this Section 4.6(f) (such
notice, a “PubCo Call Notice”), elect to purchase directly and acquire such Exchanged Units on the Exchange
Date by paying to the Exchanging Member (or such other Person specified in the Exchange Notice) the Stock Exchange Payment and/or the
Cash Exchange Payment, whereupon PubCo shall acquire the Exchanged Units on the Exchange Date and be treated for all purposes of this
LLC Agreement as the owner of such Common Units. Except as otherwise provided in this Section 4.6(f), an exercise of the
PubCo Call Right shall be consummated pursuant to the same timeframe and in the same manner as the relevant Exchange would have been
consummated if PubCo had not given a PubCo Call Notice, in each case as relevant, including that Section 4.6(a)(ii) shall
apply mutatis mutandis and that clauses (iv) and (vi) of Section 4.6(b) shall apply (notwithstanding that
the other clauses thereof do not apply).
(g) Distribution
Rights. No Exchange shall impair the right of the Exchanging Member to receive any distributions payable on the Common Units redeemed
pursuant to such Exchange in respect of a record date that occurs prior to the Exchange Date for such Exchange. No Exchanging Member,
or a Person designated by an Exchanging Member to receive shares of Class A Common Stock, shall be entitled to receive, with respect
to such record date, distributions or dividends both on Common Units redeemed by the Company from such Exchanging Member and on shares
of Class A Common Stock received by such Exchanging Member, or other Person so designated, if applicable, in such Exchange.
(h) Exchange
Restrictions. The Board may, or upon PubCo’s written request to the Board in accordance with this Section 4.6(h) the
Board shall, impose additional limitations and restrictions on Exchanges (including limiting Exchanges or creating priority procedures
for Exchanges) to the extent that the Board or PubCo, as applicable, reasonably determines in good faith that such limitations and restrictions
are necessary to avoid the Company being classified as a “publicly traded partnership” within the meaning of
Section 7704 of the Code.
(i) Tax
Matters. In connection with any Exchange or COC Notice, the Exchanging Member shall, to the extent it is legally able to do so, deliver
to PubCo or the Company, as applicable, a certificate, dated as of the Exchange Date and sworn under penalties of perjury, in a form
reasonably acceptable to PubCo or the Company, as applicable, certifying as to such Exchanging Member’s taxpayer identification
number and that such Exchanging Member is a not a foreign person for purposes of Section 1445 and Section 1446(f) of the
Code (which certificate may be an Internal Revenue Service Form W-9 if then sufficient for such purposes under applicable Law) (such
certificate a “Non-Foreign Person Certificate”). If an Exchanging Member is unable to provide a Non-Foreign Person
Certificate in connection with an Exchange, then the Company shall, to the extent it is legally entitled to do so, deliver to PubCo such
certificates as the Board determines to permit the Company and PubCo to comply with Sections 1445 and 1446(f) of the Code, and PubCo
or the Company, as applicable, shall be permitted to withhold on the amount realized by such Exchanging Partner in respect of such Exchange
as provided in Section 1445 and/or Section 1446(f) of the Code and Treasury Regulations thereunder and consistent with
the certificate provided pursuant to this sentence, as applicable. For U.S. federal and applicable state and local income tax purposes,
each of the Exchanging Member, the Company and PubCo agree to treat each Exchange as a sale by the Exchanging Member of the Exchanging
Member’s Common Units (together with an equal number of shares of Class V Common Stock, which shares will be allocated par
value) to PubCo in exchange for the payment by PubCo of (A) the Stock Exchange Payment, the Cash Exchange Payment, or other applicable
consideration to the Exchanging Member and (B) corresponding payments under the Tax Receivable Agreement.
(j) Representations
and Warranties. In connection with any Exchange or exercise of a PubCo Call Right, (i) upon the acceptance of the Class A
Common Stock or an amount of cash equal to the Cash Exchange Payment, the Exchanging Member shall represent and warrant that the Exchanging
Member is the owner of the number of Common Units that the Exchanging Member is electing to Exchange and that such Common Units are not
subject to any liens or restrictions on transfer (other than restrictions imposed by this LLC Agreement, the charter and governing documents
of PubCo and applicable Law), and (ii) if the Board elects a Stock Exchange Payment, the Company shall represent that (A) the
shares of Class A Common Stock issued to the Exchanging Member in settlement of the Stock Exchange Payment are duly authorized,
validly issued, fully paid and non-assessable and were issued in compliance in all material respects with applicable securities laws,
and (B) the issuance of such shares of Class A Common Stock issued to the Exchanging Member in settlement of the Stock Exchange
Payment does not conflict with or result in any breach of the organizational documents of PubCo.
Section 4.7 Representations
and Warranties of the Members. Each Member who acquires Units after the LLCA Effective Time severally (and not jointly) represents
and warrants to the Company and each other Member as of the date of such Member’s admittance to the Company and as of each subsequent
date that such Member acquires any additional Units (other than, in the case of acquisition of additional Units, Section 4.7(b) to
the extent any conflict under Section 4.7(b) is related to the occurrence of a Change of Control resulting from such
acquisition) that:
(a) Organization;
Authority.
(i) To
the extent it is not a natural person, (x) it is duly formed, validly existing and in good standing (if applicable) under the Laws
of the jurisdiction of its formation, and if required by Law is duly qualified to conduct business and is in good standing in the jurisdiction
of its principal place of business (if not formed in such jurisdiction), and (y) has full corporate, limited liability company,
partnership, trust or other applicable power and authority to execute and deliver this LLC Agreement and to perform its obligations under
this LLC Agreement and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries
or other Persons necessary for the due authorization, execution, delivery and performance of this LLC Agreement by that Member have been
duly taken.
(ii) It
has duly executed and delivered this LLC Agreement, and this LLC Agreement is enforceable against such Member in accordance with its
terms, subject to bankruptcy, moratorium, insolvency and other Laws generally affecting creditors’ rights and general principles
of equity (whether applied in a proceeding in a court of law or equity).
(b) Non-Contravention.
(i) Its
authorization, execution, delivery, and performance of this LLC Agreement does not breach or conflict with or constitute a default under
(x) such Member’s charter or other governing documents to the extent it is not a natural person, (y) any material obligation
under any other material agreement to which that Member is a party or by which it is bound or (z) applicable Law.
(ii) No
governmental, administrative or other material third party consents or approvals are required or necessary on the part of it in connection
with its admittance as a Member or its ownership of its Units.
(c) Due
Inquiry.
(i) It
has had, prior to the execution and delivery of this LLC Agreement, the opportunity to ask questions of and receive answers from representatives
of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and
the opportunity to obtain additional information to verify the accuracy of all information so obtained, and received all such information
about the Company and the Units as it has requested.
(ii) In
determining whether to enter into this LLC Agreement in respect of its Units, it has relied solely on its own knowledge and understanding
of the Company and its business based upon its own due diligence investigation and the information furnished pursuant to this clause
(c) and it has not relied on any other representations or information in making its investment decision, whether written or oral,
relating to the Company, its operations and/or prospects;
(d) Purpose
of Investment. It is acquiring and holding its Units solely for investment purposes, for its own account and not for the account
or benefit of any other Person and not with a view towards the distribution or dissemination thereof, did not decide to enter into this
LLC Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D under
the Securities Act, and acknowledges and understands that no United States federal or state agency has passed upon or made any recommendation
or endorsement of the offering of any Units;
(e) Transfer
Restrictions. To the extent applicable, it understands the Units are being Transferred in a transaction not involving a public offering
within the meaning of the Securities Act and the Units will comprise “restricted securities” within the meaning
of Rule 144(a)(3) under the Securities Act which shall not be sold, pledged, hypothecated or otherwise Transferred except in
accordance with the terms of this LLC Agreement and applicable Law. It agrees that, if in the future it decides to offer, resell, pledge
or otherwise Transfer any portion of its Units, such Units may be offered, resold, pledged or otherwise Transferred only pursuant to
an effective Registration Statement under the Securities Act or an applicable exemption from registration and/or qualification under
the Securities Act and applicable state securities Laws, and as a condition precedent to any such Transfer, it may be required to deliver
to the Company an opinion of counsel satisfactory to the Company, and agrees, absent registration or an exemption with respect to its
Units, not to resell any such Units.
(f) Investor
Status. It (i) has adequate means of providing for its current needs and possible contingencies, is able to bear the economic
risks of its investment for an indefinite period of time and has a sufficient net worth to sustain a loss of its entire investment in
the Company in the event such loss should occur, (ii) is sophisticated in financial matters and has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Company, (iii) is,
or is controlled by, an “accredited investor,” as that term is defined in Rule 501(a) of Regulation
D, promulgated under the Securities Act, and acknowledges the issuance of Units under this LLC Agreement is being made in reliance on
a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation
D under the Securities Act or similar exemptions under federal and state Law, and (iv) is treated as a single partner 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)).
ARTICLE V
ALLOCATIONS OF PROFITS AND LOSSES
Section 5.1 Profits
and Losses. After giving effect to the allocations under Section 5.2 and subject to Section 5.2 and Section 5.4,
Profits and Losses (and, to the extent reasonably determined by the Board to be necessary and appropriate to achieve the resulting Capital
Account balances described below, any allocable items of income, gain, loss, deduction or credit includable in the computation of Profits
and Losses) for each Taxable Year or other taxable period shall be allocated among the Members during such Taxable Year or other taxable
period in a manner such that, after giving effect to all distributions through the end of such Taxable Year or other taxable period,
the Capital Account balance of each Member, immediately after making such allocation, is, as nearly as possible, equal to (a) the
amount such Member would receive pursuant to Section 11.3(b)(ii) if all assets of the Company on hand at the end of
such Taxable Year or other taxable period were sold for cash equal to their Gross Asset Values, all liabilities of the Company were satisfied
in cash in accordance with their terms (limited with respect to each nonrecourse liability to the Gross Asset Value of the assets securing
such liability), and all remaining or resulting cash was distributed, in accordance with Section 11.3(b)(ii), to the Members
immediately after making such allocation, minus (b) such Member’s share of Company Minimum Gain and Member Minimum Gain, computed
immediately prior to the hypothetical sale of assets, and (without duplication) the amount any such Member is treated as obligated to
contribute to the Company, computed immediately after the hypothetical sale of assets.
Section 5.2 Special
Allocations.
(a) Nonrecourse
Deductions for any Taxable Year or other taxable period shall be specially allocated to the Members on a pro rata basis in accordance
with the number of Common Units owned by each Member. The amount of Nonrecourse Deductions for a Taxable Year or other taxable period
shall equal the excess, if any, of the net increase, if any, in the amount of Company Minimum Gain during that Taxable Year or other
taxable period over the aggregate amount of any distributions during that Taxable Year or other taxable period of proceeds of a Nonrecourse
Liability that are allocable to an increase in Company Minimum Gain, determined in accordance with the provisions of Treasury Regulations
Section 1.704-2(d).
(b) Any
Member Nonrecourse Deductions for any Taxable Year or other taxable period shall be specially allocated to the Member who bears economic
risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(i). If more than one (1) Member bears the economic risk of loss for such Member Nonrecourse
Debt, the Member Nonrecourse Deductions attributable to such Member Nonrecourse Debt shall be allocated among the Members according to
the ratio in which they bear the economic risk of loss. This Section 5.2(b) is intended to comply with the provisions
of Treasury Regulations Section 1.704-2(i) and shall be interpreted consistently therewith.
(c) Notwithstanding
any other provision of this LLC Agreement to the contrary, if there is a net decrease in Company Minimum Gain during any Taxable Year
or other taxable period (or if there was a net decrease in Company Minimum Gain for a prior Taxable Year or other taxable period and
the Company did not have sufficient amounts of income and gain during prior periods to allocate among the Members under this Section 5.2(c)),
each Member shall be specially allocated items of Company income and gain for such Taxable Year or other taxable period in an amount
equal to such Member’s share of the net decrease in Company Minimum Gain during such year (as determined pursuant to Treasury Regulations
Section 1.704-2(g)(2)). This Section 5.2(c) is intended to constitute a minimum gain chargeback under Treasury
Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
(d) Notwithstanding
any other provision of this LLC Agreement except Section 5.2(c), if there is a net decrease in Member Minimum Gain during
any Taxable Year or other taxable period (or if there was a net decrease in Member Minimum Gain for a prior Taxable Year or other taxable
period and the Company did not have sufficient amounts of income and gain during prior periods to allocate among the Members under this
Section 5.2 (d)), each Member shall be specially allocated items of Company income and gain for such year in an amount equal
to such Member’s share of the net decrease in Member Minimum Gain (as determined pursuant to Treasury Regulations Section 1.704-2(i)(4)).
This Section 5.2(d) is intended to constitute a partner nonrecourse debt minimum gain chargeback under Treasury Regulations
Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(e) Notwithstanding
any provision hereof to the contrary except Section 5.2(a) and Section 5.2(b), no Losses or other items
of loss or expense shall be allocated to any Member to the extent that such allocation would cause such Member to have an Adjusted Capital
Account Deficit (or increase any existing Adjusted Capital Account Deficit) at the end of such Taxable Year or other taxable period.
All Losses and other items of loss and expense in excess of the limitation set forth in this Section 5.2(e) shall be
allocated to the Members who do not have an Adjusted Capital Account Deficit in proportion to their relative positive Capital Accounts
but only to the extent that such Losses and other items of loss and expense do not cause any such Member to have an Adjusted Capital
Account Deficit.
(f) Notwithstanding
any provision hereof to the contrary except Section 5.2(c) and Section 5.2(d), in the event any Member unexpectedly
receives any adjustment, allocation or distribution described in paragraph (4), (5) or (6) of Treasury Regulations Section 1.704-1(b)(2)(ii)(d),
items of income and gain (consisting of a pro rata portion of each item of income, including gross income, and gain for the Taxable Year
or other taxable period) shall be specially allocated to such Member in an amount and manner sufficient to eliminate any Adjusted Capital
Account Deficit of that Member as quickly as possible; provided that an allocation pursuant to this Section 5.2(f) shall
be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided
for in Section 5.1 and Section 5.2 have been tentatively made as if this Section 5.2(f) were
not in this LLC Agreement. This Section 5.2(f) is intended to constitute a qualified income offset under Treasury Regulations
Section 1.704-1(b)(2)(ii) and shall be interpreted consistently therewith.
(g) If
any Member has a deficit balance in its Capital Account at the end of any Taxable Year or other taxable period that is in excess of the
amount that the Member is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulations Sections 1.704-2(g)(1) and
(i)(5), that Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible;
provided that an allocation pursuant to this Section 5.2(g) shall be made only if and to the extent that such Member
would have a deficit balance in its Capital Account in excess of such sum after all other allocations provided for in Section 5.1
and Section 5.2 have been made as if Section 5.2(f) and this Section 5.2(g) were not
in this LLC Agreement.
(h) To
the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Sections 734(b) or 743(b) is required,
pursuant to Treasury Regulations Section 1.704-1 (b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining
Capital Accounts as a result of a distribution to any Member in complete or partial liquidation of such Member’s Units in the Company,
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 such item of gain or loss shall be allocated to the Members in accordance
with Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) if such Section applies or to the Member to whom such distribution
was made if Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
(i) The
allocations set forth in Sections 5.2(a) through 5.2(h) (the “Regulatory Allocations”)
are intended to comply with certain requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding any other
provision of this Article V (other than the Regulatory Allocations), the Regulatory Allocations (and anticipated future Regulatory
Allocations) shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to
the extent possible, the net amount of such allocation of other items and the Regulatory Allocations to each Member should be equal to
the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred. In general, the Members
anticipate that this shall be accomplished by specially allocating other Profits and Loss among the Members so that the net amount of
Regulatory Allocations and such special allocations to each such Member is zero. This Section 5.2(i) is intended to
minimize to the extent possible and to the extent necessary any economic distortions that may result from application of the Regulatory
Allocations and shall be interpreted in a manner consistent therewith.
Section 5.3 Allocations
for Tax Purposes in General.
(a) Except
as otherwise provided in this Section 5.3, each item of income, gain, loss and deduction of the Company for U.S. federal
income tax purposes shall be allocated among the Members in the same manner as such item is allocated under Sections 5.1 and 5.2.
(b) In
accordance with Code Section 704(c) and the Treasury Regulations thereunder (including the Treasury Regulations applying the
principles of Code Section 704(c) to changes in Gross Asset Values), items of income, gain, loss and deduction with respect
to any Company property having a Gross Asset Value that differs from such property’s adjusted U.S. federal income tax basis shall,
solely for U.S. federal income tax purposes, be allocated among the Members to account for any such difference using (i) with respect
to any such differences that exist at the Effective Time, the “traditional method” without curative allocations
under Treasury Regulations Section 1.704-3(b) and (ii) with respect to any other such differences, any other permissible
method or methods determined by the Board to be appropriate and in accordance with the applicable Treasury Regulations.
(c) Any
(i) recapture of depreciation or any other item of deduction shall be allocated, in accordance with Treasury Regulations Sections
1.1245-1(e) and 1.1254-5, to the Members who received the benefit of such deductions and (ii) tax credits, tax credit recapture,
and any items related thereto shall be allocated to the Members according to their interests in such items as reasonably determined by
the Board taking into account the principles of Treasury Regulations Section 1.704-1(b)(4)(ii), 1.704-1(b)(3)(iv), and 1.704-1(b)(4)(viii).
(d) Allocations
pursuant to this Section 5.3 are solely for purposes of U.S. federal, state and local income taxes and shall not affect or
in any way be taken into account in computing any Member’s Capital Account or share of Profits, Losses, other items or distributions
pursuant to any provision of this LLC Agreement.
(e) If,
as a result of an exercise of a non-compensatory option to acquire an interest in the Company, 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).
(f) Any
adjustment to the adjusted tax basis of Company property pursuant to Code Section 743(b) resulting from a transfer of Units
shall be handled in accordance with Treasury Regulations Section 1.743-1(j).
Section 5.4 Other
Allocation Rules.
(a) The
Members are aware of the income tax consequences of the allocations made by this Article V and the economic impact of the
allocations on the amounts receivable by them under this LLC Agreement. The Members hereby agree to be bound by the provisions of this
Article V in reporting their share of Company income and loss for U.S. federal and applicable state and local income tax
purposes.
(b) The
provisions regarding the establishment and maintenance for each Member of a Capital Account as provided by Section 4.4 and
the allocations set forth in Sections 5.1, 5.2 and 5.3 are intended to comply with the Treasury Regulations and
to reflect the intended economic entitlement of the Members. If the Board reasonably determines that the application of the provisions
in Sections 4.4, 5.1, 5.2 or 5.3 would result in non-compliance with the Treasury Regulations or would be
inconsistent with the intended economic entitlement of the Members, the Board is authorized to make any appropriate adjustments to such
provisions to the extent permitted by applicable Law, including to allocate properly items of income, gain, loss, deduction and credit
to those Members who bear the economic burden or benefit associated therewith, or to otherwise cause the Members to achieve the economic
objectives underlying this LLC Agreement and the Business Combination Agreement. The Board also shall (i) make any adjustments that
it reasonably determines are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount
of 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 (ii) make any reasonable and appropriate modifications in the event unanticipated events
would reasonably be expected to otherwise cause this LLC Agreement not to comply with Treasury Regulations Section 1.704-1(b).
(c) With
regard to PubCo’s acquisition of the Common Units, Profits or Losses shall be allocated to the Members of the Company so as to
take into account the varying interests of the Members in the Company using an “interim closing of the books”
method in a manner that complies with the provisions of Section 706 of the Code and the Treasury Regulations thereunder. If during
any Taxable Year there is any other change in any Member’s Units in the Company, the Board shall allocate the Profits or Losses
to the Members of the Company so as to take into account the varying interests of the Members in the Company using an “interim
closing of the books” method in a manner that complies with the provisions of Section 706 of the Code and the Treasury Regulations
thereunder; provided, however, that such allocations may instead be made in another manner that complies with the provisions
of Section 706 of the Code and the Treasury Regulations thereunder and that is selected by the Board in its reasonable good faith
discretion.
(d) Solely
for purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company,
within the meaning of Treasury Regulations Section 1.752-3(a)(3), the Board shall allocate such liabilities in such manner that
complies with the Code and the Treasury Regulations thereunder and that the Board reasonably determines, in a manner intended to minimize
any gain of the Members to the greatest extent possible under Section 731 of the Code.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
(a) Distributions.
(i) To
the extent permitted by applicable Law, distributions to Members may be declared by the Board out of Distributable Cash in such amounts,
at such time and on such terms (including the payment dates of such distributions) as the Board shall determine using such record date
as the Board may designate. All distributions made under this Section 6.1(a) shall be made to the Members as of the
close of business on such record date on a pro rata basis (except that, for the avoidance of doubt, repurchases or redemptions
made in accordance with Section 4.1(h) or payments made in accordance with Section 7.6 or Section 7.9
need not be on a pro rata basis, as long as such payments are otherwise made in accordance with the terms of this LLC Agreement)
in accordance with each Member’s percentage interest in the Company as of the close of business on such record date; provided,
that the Board shall have the obligation to make distributions as set forth in Section 6.2 and Section 11.3(b)(ii);
provided, further, that notwithstanding any other provision herein to the contrary, no distributions shall be made to any
Member to the extent such distribution would render the Company insolvent or violate the Act. For purposes of this Section 6.1(a) and
Section 6.2, insolvent means the inability of the Company to meet its payment obligations when due.
(ii) Promptly
following the designation of a record date and the declaration of a distribution pursuant to this Section 6.1(a), the Company
shall give notice to each Member of the record date, the amount and the terms of the distribution and the payment date thereof.
(b) Successors.
For purposes of determining the amount of distributions (including Tax Distributions), each Member shall be treated as having made the
Capital Contributions made by, been allocated the net taxable income of the Company (in accordance with the definition of Tax Amount)
allocated to, and received the distributions made to or received by its predecessors in respect of any of such Member’s Units.
(c) Distributions
In-Kind. Except as otherwise provided in this LLC Agreement, any distributions may be made in cash or in kind, or partly in cash
and partly in kind, as reasonably determined by the Board. In the event of any distribution of (i) property in kind or (ii) both
cash and property in kind, each Member shall be distributed its proportionate share of any such cash so distributed and its proportionate
share of any such property so distributed in kind (based on the Fair Market Value of such property). 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
for purposes of Section 6.1(a) and such property shall be treated as if it were sold for an amount equal to its Fair
Market Value; provided that none of the following shall be a distribution for purposes of this LLC Agreement: (a) any recapitalization
that does not result in the distribution of cash or property to Members or any exchange of securities of the Company, and any subdivision
(by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Units or (b) any other payment
made by the Company to a Member that is not properly treated as a “distribution” for purposes of Sections 731,
732, or 733 or other applicable provisions of the Code. Any resulting gain or loss shall be allocated to the Member’s Capital Accounts
in accordance with Section 5.1 and Section 5.2.
Section 6.2 Tax-Related
Distributions. Effective upon the Effective Time, prior to making any other distributions under this LLC Agreement, on each Tax
Distribution Date, unless prohibited by applicable Law, the Board shall cause the Company, from available cash, available borrowings
and other funds legally available therefor, including legally made distributions from available cash of the Company’s Subsidiaries
(taking into account any restrictions applicable to tax distributions contained in the Company’s or its Subsidiaries’ then
applicable bank financing agreements by which the Company or its Subsidiaries are bound) (collectively, “Cash Available For
Tax Distributions”) to make distributions of cash (each, a “Tax Distribution”) to the Members
holding Common Units, pro rata in proportion to their respective number of Common Units in an amount such that the Member with the highest
Tax Amount per Common Unit receives an amount equal to such Member’s Tax Amount; provided, that if the amount of Tax Distributions
actually made with respect to a quarter or a Taxable Year is greater than or less than the Tax Distributions that would have been made
under this Section 6.2 for such period based on subsequent tax information and assuming no limitations based on prohibitions
under applicable Law, Cash Available For Tax Distributions, or insolvency under this Section 6.2 (such limitations, the “Liquidity
Limitations”) (e.g., because the estimated Tax Distributions for a Taxable Year were greater than or less than the amount
calculated based on actual taxable income for such Taxable Year or because such Tax Distribution would have rendered the Company insolvent
(as defined in Section 6.1(a))), then, on subsequent Tax Distribution Dates, starting with the next Tax Distribution Date,
and prior to any additional distributions pursuant to Section 6.1, the Board shall, subject to the Liquidity Limitations,
cause the Company to adjust the next Tax Distribution and subsequent Tax Distributions downward (but not below zero) or upward (but in
any event pro rata in proportion to the Members’ respective number of Common Units) to reflect such excess or shortfall; and provided,
further, that notwithstanding any other provision in this LLC Agreement to the contrary, (A) Tax Distributions shall not
be required to the extent any such distribution would violate the Act or render the Company insolvent (as defined in Section 6.1(a)),
and (B) the Board shall not be required to cause the Company to make any Tax Distributions on any date other than a Tax Distribution
Date. Notwithstanding anything to the contrary contained in this LLC Agreement, (a) the Board shall make, in its reasonable discretion,
equitable adjustments (downward (but not below zero) or upward) to the Members’ Tax Distributions (but in any event pro rata in
proportion to the Members’ respective number of Common Units) to take into account increases or decreases in the number of Common
Units held by each Member during the relevant period; provided that no such adjustments shall be made that would have a material
adverse effect on the Continuing Members without the Continuing Member Representative’s prior written consent (which consent shall
not be unreasonably withheld, conditioned, or delayed), and (b) no Tax Distributions (or downward (but not below zero) or upward
adjustment to any Tax Distributions) shall be made other than on a pro rata basis in proportion to the Members’ respective number
of Common Units.
Section 6.3 Distribution
Upon Withdrawal. No resigning Member shall be entitled to receive any distribution or the value of such Member’s Units
in the Company as a result of resignation from the Company prior to the liquidation of the Company, except as provided in this LLC Agreement.
Section 6.4 Special
Distributions to Facilitate Acquisitions. The Board shall be permitted to cause a distribution, loan or other transfer of cash
by the Company or one or more of its Subsidiaries to be made solely to PubCo (or one of its Subsidiaries, other than the Company and
its Subsidiaries) (such distribution, loan or other transfer satisfying the following proviso, an “M&A Distribution”);
provided, however, that (i) each such distribution, loan or other transfer is (A) made at or following such time
as the Board reasonably determines that a specific acquisition is reasonably likely to be consummated and (B) used solely to facilitate
the consummation of an acquisition by PubCo or its Subsidiary (other than the Company and its Subsidiaries) within the time reasonably
specified therefor by the Board at the time of such M&A Distribution (with any interest accrued thereon for the benefit of the Company),
and (ii) PubCo or such Subsidiary (other than the Company and its Subsidiaries) (x) contributes (in the case of an M&A
Distribution that was a distribution), (y) transfers in repayment of the applicable M&A Distribution that was a loan, or (z) sells
solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan, or causes to be contributed
(in the case of an M&A Distribution that was a distribution), transferred in repayment of the applicable M&A Distribution that
was a loan, or sold solely in exchange for the applicable previously made M&A Distribution that was not a distribution or a loan,
as soon as practicable thereafter, to the Company or the applicable Subsidiary of the Company the assets directly or indirectly acquired
with such distribution, loan or other transfer, as directed by the Board. If the M&A Distribution is not used solely to facilitate
the consummation of an acquisition in accordance with the foregoing clause (i) within the time specified therefor by the Board,
PubCo (or its Subsidiaries (other than the Company and its Subsidiaries) will contribute (in the case of an M&A Distribution that
was a distribution), transfer in repayment of the applicable M&A Distribution that was a loan, or retransfer (in the case of an M&A
Distribution that was not a distribution or a loan) the full amount of such M&A Distribution and any interest accrued thereon to
the Company or the applicable Subsidiaries of the Company at or prior to 5:00 pm New York time on the applicable date. During any time
period between the time of the M&A Distribution and the contribution, repayment or sale contemplated by the foregoing clause (ii) of
the immediately foregoing sentence, PubCo (or its Subsidiary, as applicable) shall hold such cash, and operate any acquired assets, for
the benefit of the Company. The number of Common Units held by PubCo and its Subsidiaries (other than the Company and its Subsidiaries)
in the aggregate shall not change as a result of any M&A Distribution or the re-contribution, repayment or retransfer of such M&A
Distribution (together with any interest accrued thereon) or contribution, repayment or sale of any assets directly or indirectly acquired
with such M&A Distribution, in each case as described in this Section 6.4. For purposes of this LLC Agreement, the amount
of any M&A Distribution that has not been repaid to the Company or the applicable Subsidiaries of the Company (including, to the
extent an acquisition has been consummated with the proceeds of such M&A Distribution but the assets so acquired have not yet been
contributed, repaid or sold to the Company or the applicable Subsidiaries of the Company as required hereby, the value of the assets
so acquired) shall be treated as an asset owned by the Company or the applicable Subsidiaries of the Company and not by PubCo or its
Subsidiaries (other than the Company and its Subsidiaries). To the extent that any fees, costs and expenses are incurred in connection
with the pursuit of an acquisition described in this Section 6.4, such fees, costs and expenses will be subject to the reimbursement
provisions in Section 7.9.
ARTICLE VII
MANAGEMENT
Section 7.1 Board
Rights; Member and Officer Duties.
(a) The
Company shall be managed by a board of managers (the “Board”). Except as otherwise required by Law or for matters
in which the vote or approval of any Member is specifically required under this LLC Agreement, (i) the Board shall have full and
complete charge of all affairs of the Company, (ii) the management and control of the Company’s business activities and operations
shall rest exclusively with the Board, and the Board shall make all decisions regarding the business, activities and operations of the
Company (including the incurrence of costs and expenses) without the consent of any Member, and (iii) the Members (in their capacity
as such) shall not participate in the control, management, direction or operation of the activities or affairs of the Company and shall
have no power to act for or bind the Company.
(b) The
Board shall consist of seven (7) Persons (each a “Manager” and collectively, the “Managers”).
Each Manager shall be a “manager” within the meaning of the Act. The Managers shall be designated from time to time as follows:
(i) Four (4) Persons
shall be individuals designated by PubCo (each a “PubCo Manager”). As of the LLCA Effective Time, the PubCo
Managers are Brent Handler, Brad Handler, Scott Berman, and one vacancy.
(ii) Three
(3) Persons shall be individuals designated by the Members holding a majority of the outstanding Units held by Members other than
PubCo and its wholly-owned Subsidiaries (each, a “Non-PubCo Manager”). As of the LLCA Effective Time, the Non-PubCo
Managers are Michael Armstrong, Eric Grosse, and Ann Payne.
From time to time following the date hereof,
PubCo, without the consent of any other Member, shall be entitled to increase or decrease (i) the size of the Board and/or (ii) the
number of PubCo Managers and Non-PubCo Managers on such Board, in order to reflect as closely as reasonably practicable the relative
ownership of the Company held by PubCo on the one hand and the Members other than PubCo and its wholly-owned Subsidiaries on the other
hand. Following any such adjustment, the Members shall be obligated to remove any Managers and to elect (i) the applicable number
of the PubCo Managers as designated by PubCo and (ii) the applicable number of the Non-PubCo Managers as designated by the holders
of a majority of the Units then outstanding held by Members other than PubCo and its wholly-owned Subsidiaries in accordance with such
adjusted Board membership requirements.
(c) In
connection with the performance of their duties as members of the Board, the Managers acknowledge that they will owe to the Members the
same fiduciary duties as they would owe to the stockholders of a Delaware corporation under the DGCL if they were members of the board
of directors of such a corporation and the Members were stockholders of such corporation.
(d) Meetings
of the Board may be called by any Manager. Notice of any meeting shall be given pursuant to Section 12.9 below to all Managers
not less than twenty-four (24) hours prior to the meeting. A majority of Managers then serving on the Board shall constitute a quorum
for the transaction of business by the Board; provided, however, that if there are four (4) or fewer Managers then serving on the
Board, all Managers shall constitute a quorum for the transaction of business by the Board. Except as otherwise provided in this LLC
Agreement, the approval of a majority of the Managers present at any duly constituted meeting of the Board at which a quorum is present
shall be required for the Board to take any action; provided, however, that if there are four (4) or fewer Managers then serving
on the Board, approval by all Managers shall be required for the Board to take any action. A notice need not specify the purpose of any
meeting. Notice of a meeting need not be given to any Manager who signs a waiver of notice, a consent to holding the meeting or an approval
of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting the lack of notice prior to
the commencement of the meeting. All such waivers, consents and approvals shall be filed with the Company’s records or made a part
of the minutes of the meeting. Managers may participate in any meeting of the Managers by means of conference telephones or other means
of electronic communication so long as all Managers participating can hear or communicate with one another. A Manager so participating
is deemed to be present at the meeting.
(e) Any
action that is permitted or required to be taken by the Board may be taken or ratified by written consent setting forth the specific
action to be taken, which written consent is signed by all of the Managers then serving on the Board. Any consent or approval of the
Board required or permitted by this LLC Agreement to be “written” may also be made by the use of electronic transmission.
(f) Except
as otherwise required by the Act, no current or former Member or any current or former Manager of the Company or Officer shall be obligated
personally for any Liability of the Company solely by reason of being a member or manager of the Company, or, with respect to an Officer,
acting in his or her capacity as an Officer. Notwithstanding anything to the contrary contained in this LLC Agreement, the failure of
the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business and affairs
under this LLC Agreement or the Act shall not be grounds for imposing personal liability on the Managers or the Members for liabilities
of the Company.
(g) To
the extent that, at Law or in equity, any Subsidiary of the Company or any manager, director (or equivalent), officer, employee or agent
of any Subsidiary of the Company has duties (including fiduciary duties) to the Company, to a Member or to any Person who acquires Units,
all such duties (including fiduciary duties) are hereby limited solely to those expressly set forth in this LLC Agreement (if any), to
the fullest extent permitted by Law. The limitation of duties (including fiduciary duties) to the Company, each Member and any Person
who acquires Units set forth in the preceding sentence is approved by the Company, each Member and any Person who acquires Units.
Section 7.2 Election
of Board. The Board shall be elected annually by the Members in accordance with this Section 7.2, and the Managers so elected
to the Board shall serve as the Managers until a successor has been duly elected to the Board in accordance with this Section 7.2.
A Person shall be elected as a Manager if the election of such Manager is approved by Members holding a majority of the outstanding Common
Units by vote at a meeting held for such purpose or by action by written consent; provided, however, that if the Person so elected as
a Manager was not a Manager immediately prior to such election, such election shall not be effective, and such Person shall not become
a Manager, unless and until such Person has executed and delivered to the Company the written agreement of such Person to be bound by
the terms of this LLC Agreement applicable to the Managers, in form and substance reasonably satisfactory to the Managers serving immediately
prior to such election or to the Members holding a majority of the outstanding Common Units. Each Member hereby irrevocably agrees, in
connection with each such meeting of the Members or written consent contemplated by this Section 7.2, to vote for such Managers
as follows: (i) with respect to the PubCo Managers (as determined pursuant to Section 7.1(b)), as designated by PubCo prior
to such meeting or written consent and (ii) with respect to the Non-PubCo Managers (as determined pursuant to Section 7.1(b)),
the applicable number of the Non-PubCo Managers as designated by the holders of a majority of the Units then outstanding held by Members
other than PubCo and its wholly-owned Subsidiaries.
Section 7.3 Resignation
or Removal of Managers; Vacancy. A Manager may resign as a Manager at any time and may be removed at any time, with or without
cause, by the Members entitled to designate such Manager(s) pursuant to Section 7.1(b). Any vacancy on the Board may
be filled by PubCo until the next annual meeting or vote of the Members contemplated by Section 8.2.
Section 7.4 Role
of Officers.
(a) The
Board may appoint, employ or otherwise contract with any Person for the transaction of the business of the Company or the performance
of services for or on behalf of the Company, and the Board may delegate to any such Persons such authority to act on behalf of the Company
as the Board may from time to time deem appropriate.
(b) The
Officers of the Company as of the LLCA Effective Time are set forth on Exhibit C attached hereto.
(c) The
Board shall appoint a Chief Executive Officer who will be responsible for the general and active management of the business of the Company
and its Subsidiaries. The Chief Executive Officer will report to the Board and have the general powers and duties of management usually
vested in the office of chief executive officer of a corporation organized under the DGCL, subject to the terms of this LLC Agreement
and as may be prescribed by the Board, and will have such other powers and duties as may be reasonably prescribed by the Board or set
forth in this LLC Agreement. The Chief Executive Officer will have the power to execute bonds, mortgages and other contracts requiring
a seal, under the seal of the Company, except where required or permitted by Law to be otherwise signed and executed, and except where
the signing and execution thereof is delegated by the Board to some other Officer or agent of the Company.
(d) Except
as set forth in this LLC Agreement, the Board may appoint Officers at any time, and the Officers may include, in addition to the Chief
Executive Officer, a president, one or more vice presidents, a secretary, one or more assistant secretaries, a chief financial officer,
a general counsel, a treasurer, one or more assistant treasurers, a chief operating officer, an executive chairman, and any other officers
that the Board deems appropriate. Except as set forth in this LLC Agreement, the Officers will serve at the pleasure of the Board, subject
to all rights, if any, of such Officer under any contract of employment. Any individual may hold any number of offices, and an Officer
may, but need not, be a Member of the Company. The Officers will exercise such powers and perform such duties as specified in this LLC
Agreement or as reasonably determined from time to time by the Board.
(e) Subject
to this LLC Agreement and to the rights, if any, of an Officer under a contract of employment, any Officer may be removed, either with
or without cause, by the Board. Any Officer may resign at any time by giving written notice to the Board. Any resignation will take effect
at the date of the receipt of that notice or at any later time specified in that notice and, unless otherwise specified in that notice,
the acceptance of the resignation will not be necessary to make it effective. Any resignation is without prejudice to the rights, if
any, of the Company under any contract to which the Officer is a party. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause will be filled in the manner prescribed in this LLC Agreement for regular appointments to that office.
Section 7.5 Warranted
Reliance by Officers on Others. In exercising their authority and performing their duties under this LLC Agreement, the Officers
shall be entitled to rely on information, opinions, reports, or statements of the following Persons or groups unless they have actual
knowledge concerning the matter in question that would cause such reliance to be unwarranted:
(a) one
or more employees or other agents of the Company or its Subsidiaries whom the Officer reasonably believes to be reliable and competent
in the matters presented; and
(b) any
attorney, public accountant, or other Person as to matters which the Officer reasonably believes to be within such Person’s professional
or expert competence.
Section 7.6 Indemnification.
(a) Right
to Indemnification. Each Person who was or is made a party or is threatened to be made a party to or is otherwise subject to or involved
in any Action, by reason of the fact that he, she or it is or was a Member or Manager, is or was serving as the Company Representative
(including any “designated individual”) or the Continuing Member Representative or an officer, manager or director
(or equivalent) or, at the discretion of the Board, any employee or agent, of PubCo, the Company or any of its Subsidiaries, or is or
was an officer, manager or director (or equivalent) or, at the discretion of the Board, any employee or agent, of PubCo, the Company
or any of its Subsidiaries serving at the request of the Board or the Company or any of its Subsidiaries as an officer, manager or director
(or equivalent) or, at the discretion of the Board, any employee or agent, of another corporation, partnership, joint venture, limited
liability company, trust or other entity or which relates to or arises out of the property, business or affairs of the Company or any
of its Subsidiaries, including service with respect to an employee benefit plan (an “Indemnitee”), whether
the basis of such Action is alleged action in an official capacity as a director, manager, officer, employee or agent or in any other
capacity while serving as an officer, manager, director, employee or agent, shall be indemnified by the Company against all expense,
Liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Indemnitee in connection therewith (“Indemnifiable Losses”); provided,
however, that, such Indemnitee shall not be entitled to indemnification if such Indemnitee’s conduct constituted fraud or a knowing
violation of Law; provided, further, however, except as provided in Section 7.6(d) with respect
to Actions to enforce rights to indemnification, the Company shall indemnify any such Indemnitee pursuant to this Section 7.6
in connection with an Action (or part thereof but excluding any compulsory counterclaim) initiated by such Indemnitee only if such
Action (or part thereof but excluding any compulsory counterclaim) was authorized by the Board.
(b) Right
to Advancement of Expenses. The right to indemnification conferred in Section 7.6(a) shall include the right to
advancement by the Company of any and all expenses (including reasonable attorneys’ fees and expenses) incurred in participating
in or defending any such Action in advance of its final disposition (an “Advancement of Expenses”); provided,
however, that an Advancement of Expenses incurred by an Indemnitee shall be made pursuant to this Section 7.6(b) only
upon delivery to the Company of an undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to repay,
without interest, 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 this Section 7.6(b). An Indemnitee’s right to an Advancement of Expenses pursuant to this Section 7.6(b) is
not subject to the satisfaction of any standard of conduct and is not conditioned upon any prior determination that Indemnitee is entitled
to indemnification under Section 7.6(a) with respect to the related Action or the absence of any prior determination
to the contrary.
(c) Contract
Rights. The rights to indemnification and to the Advancement of Expenses conferred in this Section 7.6 shall be contract
rights and such rights shall continue as to an Indemnitee who has ceased to be a director, manager, officer, employee or agent and shall
inure to the benefit of the Indemnitee’s heirs, estate, executors, administrators and legal representatives. The rights to indemnification
and to Advancement of Expenses conferred in this LLC Agreement shall not be eliminated or impaired by the amendment or repeal of this
Section 7.6, nor the adoption of any provision of this LLC Agreement inconsistent with this Section 7.6, after
the occurrence of the conduct that is the subject of the Action for which indemnification or Advancement of Expenses is sought, unless
the provision in effect at the time of such conduct explicitly authorizes such elimination or impairment after such conduct has occurred.
(d) Right
of Indemnitee to Bring Suit. If a claim under Sections 7.6(a) or (b) is not paid in full by the Company within
sixty (60) calendar days after a written claim has been received by the Company, except in the case of a claim for an Advancement of
Expenses, in which case the applicable period shall be twenty (20) calendar days, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought
by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification
under this LLC Agreement (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a
defense that, and (ii) any suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking,
the Company shall be entitled to recover such expenses, without interest, upon a Final Adjudication that, the Indemnitee has not met
any applicable standard for indemnification set forth in this LLC Agreement or the Act. Neither the failure of the Company (including
the Board or independent legal counsel) to have made a determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the Act, nor
an actual determination by the Company (including the Board or independent legal counsel) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by an Indemnitee to enforce a right to indemnification
or to an Advancement of Expenses under this LLC Agreement, or brought by the Company to recover an Advancement of Expenses under this
LLC Agreement pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or
to such Advancement of Expenses, shall be on the Company.
(e) Appearance
as a Witness. Notwithstanding any other provision of this Section 7.6, the Company shall pay or reimburse out of pocket
expenses incurred by any Person entitled to be indemnified pursuant to this Section 7.6 in connection with such Person’s
appearance as a witness or other participation in an Action at a time when such Person is not a named defendant or respondent in the
Action.
(f) Nonexclusivity
of Rights. The rights to indemnification and the Advancement of Expenses conferred in this Section 7.6 shall not be exclusive
of any other right which a Person may have or hereafter acquire under any Law, this LLC Agreement, any agreement, any vote of stockholders
or disinterested directors or otherwise. Nothing contained in this Section 7.6 shall limit or otherwise affect any such other
right or the Company’s power to confer any such other right.
(g) No
Duplication of Payments. The Company shall not be liable under this Section 7.6 to make any payment to an Indemnitee
in respect of any Indemnifiable Losses to the extent that the Indemnitee has otherwise actually received payment (net of any expenses
incurred in connection therewith and any repayment by the Indemnitee made with respect thereto) under any insurance policy or from any
other source in respect of such Indemnifiable Losses.
(h) Maintenance
of Insurance. The Company or PubCo shall maintain directors’ and officers’ insurance from a financially sound and reputable
insurer (at a minimum, in such amounts as are standard in the industry) to protect managers, directors and officers of the Company and
its Subsidiaries against Indemnifiable Losses of such Indemnitee, whether or not the Company has the authority to indemnify such Indemnitee
against such Indemnifiable Losses under this Section 7.6, in each case to the extent available under the directors’
and officers’ insurance policy of PubCo.
Section 7.7 Reclassification
Events of PubCo. If a Reclassification Event occurs, the Board shall, as and to the extent necessary, amend this LLC Agreement
in compliance with Section 12.1, and cause the Company to enter into any necessary supplementary or additional agreements,
to ensure that, following the effective date of the Reclassification Event: (a) the exchange rights of holders of Units set forth
in Section 4.6 provide that each Common Unit (together with the surrender and delivery of one (1) share of Class V
Common Stock) is exchangeable for the same amount and same type of property, securities or cash (or combination thereof) that one (1) share
of Class A Common Stock becomes exchangeable for or converted into as a result of the Reclassification Event and (b) PubCo
or the successor to PubCo as a result of such Reclassification Event, as applicable, is obligated to deliver such property, securities
or cash upon such exchange. PubCo shall not consummate or agree to consummate any Reclassification Event unless the successor Person
as a result of such Reclassification Event, if any, becomes obligated to comply with the obligations of PubCo (in whatever capacity)
under this LLC Agreement.
Section 7.8 Transactions
between Company and PubCo. The Board may cause the Company to contract and deal with PubCo, or any Affiliate of PubCo; provided
such contracts and dealings (other than contracts and dealings between the Company and its Subsidiaries) are on terms comparable
to and competitive with those available to the Company from others dealing at arm’s length or are approved by the Members or are
otherwise approved by the Disinterested Majority of the Board and the PubCo Board.
Section 7.9 Certain
Costs and Expenses. No Manager shall be compensated for his or her services as a Manager of the Company. The Company shall (a) pay,
or cause to be paid, all costs, fees, operating expenses and other expenses of the Company (including the costs, fees and expenses of
attorneys, accountants or other professionals and the compensation of all personnel providing services to the Company) incurred in pursuing
and conducting, or otherwise related to, the activities of the Company and (b) upon the good faith determination of the Board, reimburse
each Manager for any costs, fees or expenses incurred by such Manager in connection with serving as a Manager. To the extent that the
Board determines in good faith that such expenses are related to the business and affairs of PubCo that are conducted through the Company
and/or its Subsidiaries (including expenses that relate to the business and affairs of the Company and/or its Subsidiaries and that also
relate to other activities of PubCo), the Board shall cause the Company to pay or bear such expenses of such Manager, including costs
of securities offerings not borne directly by Members, PubCo Board compensation and meeting costs, costs
of periodic reports to PubCo’s stockholders, litigation costs and damages arising from litigation, accounting and legal
costs; provided that, subject to Section 6.2, the Company shall not pay or bear any income tax obligations owed by
PubCo or the cost of any Tax Benefit Payment (as defined in the Tax Receivable Agreement) or any amounts owed by PubCo under the Tax
Receivable Agreement.
ARTICLE VIII
ROLE OF MEMBERS
Section 8.1 Rights
or Powers. The Members, acting in their capacity as Members, shall not have any right or power to take part in the operation,
management or control of the Company or its business and affairs, transact any business in the Company’s name or to act for or
bind the Company in any way and shall not have any voting rights. Notwithstanding the foregoing sentence, the Members have all the rights
and powers set forth in this LLC Agreement and, to the extent not inconsistent with this LLC Agreement, in the Act. Any Member, its Affiliates
and its and their employees, managers, owners, agents, directors and officers may also be an employee or be retained as an agent of the
Company. Nothing in this Article VIII shall in any way limit any Member’s rights pursuant to, and subject to the terms
and conditions of, the Tax Receivable Agreement.
Section 8.2 Voting.
(a) Meetings of the Members may be called
upon the written request of the Board or Members holding at least 50% of the outstanding Units. Such request shall state the location
of the meeting and the nature of the business to be transacted at the meeting. Written notice of any such meeting shall be given to all
Members not less than two Business Days and not more than 30 days prior to the date of such meeting. Members may vote in person, by proxy
or by telephone at any meeting of the Members and may waive advance notice of such meeting. Whenever the vote or consent of Members is
permitted or required under this LLC Agreement, such vote or consent may be given at a meeting of the Members or may be given in accordance
with the procedure prescribed in this Section 8.2. Except as otherwise expressly provided in this LLC Agreement, the affirmative
vote of the Members holding a majority of the outstanding Units shall constitute the act of the Members.
(b) Each Member may
authorize any Person or Persons to act for it by proxy on all matters in which such Member is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by such Member or its attorney-in-fact. No
proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Member executing it.
(c) Each meeting of
Members shall be conducted by the Board or such individual Person as the Board deems appropriate.
(d) Any action required
or permitted to be taken by the Members may be taken without a meeting if the requisite Members whose approval is necessary consent thereto
in writing (including the election of the Managers pursuant to Section 7.2). Any consent or approval of the Members required
or permitted by this LLC Agreement to be “written” may also be made by the use of electronic transmission.
Section 8.3 Various
Capacities. The Members acknowledge and agree that the Members or their Affiliates will from time to time act in various capacities,
including as a Member or, in the case of PubCo, the Company Representative, or, in the case of Brent Handler or an Affiliate thereof,
the Continuing Member Representative.
Section 8.4 Investment
Opportunities.
(a) To
the fullest extent permitted by applicable Law, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to
(i) any Member (other than Members who are managers, directors, officers or employees of the Company, PubCo or any of their respective
Subsidiaries, in which case solely acting in their capacity as such), (ii) any of their respective Affiliates (other than the Company
or any of its Subsidiaries) or (iii) any of the respective officers, agents, shareholders, members, and partners of any of the foregoing,
including any such Person acting as a director of PubCo at the request of such Member (each, a “Business Opportunities Exempt
Party”). The Company and each of the Members, on its own behalf and on behalf of their respective Affiliates and equityholders,
hereby renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, business opportunities
that are from time to time presented to any Business Opportunities Exempt Party and irrevocably waives any right to require any Business
Opportunity Exempt Party to act in a manner inconsistent with the provisions of this Section 8.4. No Business Opportunities
Exempt Party who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for
PubCo, the Company or any of their respective Subsidiaries, Affiliates or equityholders shall have any duty to communicate or offer such
opportunity to the Company and none of PubCo, the Company or any of their respective Subsidiaries, Affiliates or equityholders will acquire
or be entitled to any interest or participation in any such transaction, agreement, arrangement or other matter or opportunity as a result
of participation therein by a Business Opportunity Exempt Party. This Section 8.4 shall not apply to, and no interest or
expectancy of the Company is renounced with respect to, any opportunity offered to any director or officer of PubCo if such opportunity
is expressly offered or presented to, or acquired or developed by, such Person solely in his or her capacity as a director or officer
of PubCo.
(b) No
amendment or repeal of this Section 8.4 shall apply to or have any effect on the Liability or alleged Liability of any Business
Opportunities Exempt Party for or with respect to any opportunities of which any such Person becomes aware prior to such amendment or
repeal. Any Person purchasing or otherwise acquiring any interest in any Units shall be deemed to have notice of and consented to the
provisions of this Section 8.4. Neither the amendment or repeal of this Section 8.4, nor the adoption of any
provision of this LLC Agreement inconsistent with this Section 8.4, shall eliminate or reduce the effect of this Section 8.4
in respect of any business opportunity first identified or any other matter occurring, or any cause of Action that, but for this
Section 8.4, would accrue or arise, prior to such amendment, repeal or adoption. To the fullest extent permitted by Law,
including Section 18-1101(c) of the Act, and notwithstanding any other provision of this LLC Agreement or in any agreement
contemplated herein or applicable provisions of Law or equity or otherwise, no action or inaction taken by any Business Opportunities
Exempt Party in a manner consistent with this Section 8.4 shall be deemed to be a violation of any fiduciary or other duty
owed to any Person.
ARTICLE IX
TRANSFERS OF UNITS
Section 9.1 Restrictions
on Transfer.
(a) No
Member shall Transfer any interest in all or any portion of its Units, except Transfers (i) that constitute a Permitted Transfer,
(ii) approved in writing by the Board, in the case of Transfers by any Member other than PubCo, (iii) in the case of Transfers
by PubCo or any successor to PubCo in its capacity as a Member, to any member of the Affiliated Group of PubCo or (iv) in the case
of transfers by any such member of such Affiliated Group, to any other member of such Affiliated Group. Notwithstanding the foregoing,
“Transfer” shall not include an event that terminates the existence of a Member for income tax purposes (including, without
limitation, a change in entity classification of a Member under Treasury Regulations Section 301.7701-3, a deemed sale of assets
by, or a deemed liquidation of, a Member pursuant to an election under Code Sections 336 or 338, or merger, severance, or allocation
within a trust or among sub-trusts of a trust that is a Member), but that does not terminate the existence of such Member under applicable
state Law (or, in the case of a trust that is a Member, does not terminate the trusteeship of the fiduciaries under such trust with respect
to all the Units of such trust that is a Member). If, notwithstanding the provisions of this Section 9.1(a), all or any portion
of a Member’s Units are Transferred by such Member in violation of this Section 9.1(a), involuntarily, by operation
of Law or otherwise, then without limiting any other rights and remedies available to the other Parties under this LLC Agreement, the
Transferee of such Units (or portion thereof) shall not be admitted to the Company as a Member nor be entitled to any rights as a Member
under this LLC Agreement, and the Transferor will continue to be bound by all obligations under this LLC Agreement. Any attempted or
purported Transfer of all or a portion of a Member’s Units in violation of this Section 9.1(a) shall, to the fullest
extent permitted by Law, be null and void ab initio and of no force or effect whatsoever. Subject to the restrictions set forth
herein, (i) no shares of Class V Common Stock may be Transferred by a Member unless an equal number of Common Units are Transferred
therewith in accordance with this LLC Agreement (including in respect of those Transfers permitted by Section 9.1(b)), and
(ii) no Common Units may be Transferred by a Member holding Class V Common Stock unless an equal number of shares of Class V
Common Stock are Transferred therewith in accordance with this LLC Agreement (including in respect of those Transfers permitted by Section 9.1(b)).
(b) The
restrictions contained in Section 9.1(a) shall not apply to any Transfer (each, a “Permitted Transfer”):
(i) in connection with an “Exchange” made in accordance with the provisions of Section 4.6,
(ii) by a Member to PubCo or any of its wholly-owned Subsidiaries, (iii) by a Member to any of such Member’s Permitted
Transferees; provided, however, if a Transfer pursuant to clause (iii) would result in a Change of Control, such Member
must provide the Company with written notice of such Transfer at least sixty (60) calendar days prior to the consummation of such Transfer,
(iv) pursuant to the Laws of descent and distribution, (v) that was necessary to effectuate the Blocker Mergers (as defined
in the Business Combination Agreement) or (vi) as a pledge of Common Units (and a corresponding number of shares of Class V
Common Stock) as security or collateral in connection with any borrowing or the incurrence of any indebtedness by a Member; provided,
however, that such borrowing or incurrence of indebtedness is part of a bona fide margin agreement in connection with the purchase
of shares of the Class A Common Stock in the PIPE Investment (as referenced in the Business Combination Agreement); provided
further, that the restrictions contained in this LLC Agreement will continue to apply to Units after any Permitted Transfer of such
Units and, in the case of the foregoing clauses (iii), (iv), (v) and (vi), the Transferees of the Units so Transferred shall agree
in writing to be bound by the provisions of this LLC Agreement. In the case of a Permitted Transfer of any Common Units by a Continuing
Member, such Transferring Member shall be required to Transfer an equal number of shares of Class V Common Stock corresponding to
the number of such Member’s Common Units that were Transferred in the transaction to such Transferee. All Permitted Transfers are
subject to the additional limitations set forth in Section 9.1(c).
(c) In
addition to any other restrictions on Transfer contained in this Article IX, in no event may any Transfer or assignment of
Units by any Member be made (i) to any Person who is not legally competent, who has not achieved his or her majority of age under
applicable Law (excluding trusts for the benefit of minors), or who otherwise lacks the legal right, power or capacity to own Units;
(ii) if such Transfer would (A) be considered to be effected on or through an “established securities market”
or a “secondary market or the substantial equivalent thereof” as such terms are used in Treasury Regulations
Section 1.7704-1, (B) if the Company has one hundred (100) or fewer “partners” immediately prior to such Transfer,
cause the number of partners to exceed one hundred (100), in each case, 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)), or,
if the number of partners exceeds one hundred (100) immediately prior to such Transfer, materially increase the possibility of the Company
becoming a “publicly traded partnership” within the meaning of Section 7704 of the Code, (C) cause the Company
to be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code or successor
provision of the Code or to be treated as an association taxable as a corporation pursuant to the Code, or (D) cause the Company
to have a withholding obligation under Section 1446(f) of the Code; (iii) if such Transfer would cause the Company to
become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined
in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section 4975(e)(2) of the
Code); (iv) if such Transfer would, in the opinion of counsel to the Company, cause any portion of the assets of the Company to
constitute assets of any employee benefit plan pursuant to the Plan Asset Regulations or otherwise cause the Company to be subject to
regulation under ERISA; (v) if such Transfer would result in the violation of the Securities Act, or any other applicable federal,
state or foreign Laws, including if such Transfer requires the registration of any equity securities issued upon any exchange of such
Units, pursuant to any applicable U.S. federal or state securities Laws, and no registration statement covering such securities is then
in effect; or (vi) if such Transfer subjects the Company to regulation under the Investment Company Act or the Investment Advisors
Act of 1940 or causes an assignment thereunder. Any attempted or purported Transfer of all or a portion of a Member’s Units in
violation of this Section 9.1(c) shall be null and void ab initio and of no force or effect whatsoever.
Section 9.2 Notice
of Transfer. Other than in connection with Transfers made pursuant to Section 4.6, each Member shall, after complying
with the provisions of this LLC Agreement, but prior to any Transfer of Units, give written notice to the Company and the other Members
of such proposed Transfer. Each such notice shall describe the manner and circumstances of the Transfer and include a representation
from the Transferring Member that such Transfer was made in accordance with applicable securities Laws.
Section 9.3 Transferee
Members. A Transferee of Units pursuant to this Article IX shall be admitted as a Member only if (a) the requirements
of this Article IX are met, (b) such Transferee executes a joinder in the form attached to this LLC Agreement as Exhibit D,
and (c) if such Transferee or his or her spouse is a resident of a community property jurisdiction, then such Transferee’s
spouse shall also execute an instrument reasonably satisfactory to the Board agreeing to be bound by the terms and provisions of this
LLC Agreement to the extent of his or her community property or quasi-community property interest, if any, in such Member’s Units.
Unless agreed to in writing by the Board, the admission of a Member shall not result in the release of the Transferor from any Liability
as of the date of transfer that the Transferor may have to each remaining Member or to the Company under this LLC Agreement or any other
contract between the Company or any of its Subsidiaries, on the one hand, and such Transferor, on the other hand. Written notice of the
admission of a Member shall be sent promptly by the Company to each remaining Member.
Section 9.4 Legend.
The Units have not been registered under the Securities Act and, therefore,
in addition to the other restrictions on Transfer contained in this LLC Agreement, cannot be sold unless subsequently registered under
the Securities Act or an exemption from such registration is then available. Each certificate representing a Unit, if any, will
be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT. THE TRANSFER AND VOTING OF THESE
SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE TENTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF INSPIRATO
LLC, DATED AS OF _________ __, 2023, AMONG THE MEMBERS LISTED THEREIN, AS IT MAY BE AMENDED, SUPPLEMENTED AND/OR RESTATED FROM TIME
TO TIME IN ACCORDANCE WITH SUCH AGREEMENT (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY AND SHALL BE PROVIDED FREE OF
CHARGE TO ANY MEMBER MAKING A REQUEST THEREFOR), AND NO TRANSFER OF THESE SECURITIES WILL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS
HAVE BEEN FULFILLED.”
Section 9.5 Transfer.
Prior to Transferring any Units, the Transferring holder of Units shall cause the prospective Permitted Transferee to be bound by this
LLC Agreement and any other agreements executed by the holders of Units and relating to such Units in the aggregate to which the transferor
was a party (collectively, the “Other Agreements”) by executing and delivering to the Company counterparts
of this LLC Agreement and any applicable Other Agreements.
Section 9.6 Assignee’s
Rights.
(a) The
Transfer of Units in accordance with this LLC Agreement shall be effective as of the date of its assignment (assuming compliance with
all of the conditions to such Transfer set forth herein), and such Transfer shall be shown on the books and records of the Company. Profits,
Losses and other Company items shall be allocated between the Transferor and the Assignee according to Code Section 706, using any
permissible method as determined in the reasonable discretion of the Board. Distributions made before the effective date of such Transfer
shall be paid to the Transferor, and Distributions made on or after such date shall be paid to the Assignee.
(b) Unless
and until an Assignee becomes a Member pursuant to this ARTICLE IX, the Assignee shall not be entitled to any of the rights
granted to a Member hereunder or under applicable Law, other than the rights granted specifically to Assignees pursuant to this LLC Agreement;
provided, however, that, without relieving the Transferring Member from any such limitations or obligations as more fully
described in Section 9.7, such Assignee shall be bound by any limitations and obligations of a Member contained herein by
which a Member would be bound on account of the Assignee’s ownership of Units (including the obligation to make Capital Contributions
on account of such ownership).
Section 9.7 Assignor’s
Rights and Obligations.
Any Member who shall Transfer
any Units in a manner in accordance with this LLC Agreement shall cease to be a Member with respect to such Units and shall no longer
have any rights or privileges, or, except as set forth in this Section 9.7, duties, liabilities or obligations, of a Member
with respect to such Units (it being understood, however, that the applicable provisions of Section 7.6 shall continue to
inure to such Person’s benefit), except that unless and until the Assignee (if not already a Member) is admitted as a Member in
accordance with the provisions of this ARTICLE IX (the “Admission Date”), (i) such assigning
Member shall retain all of the duties, liabilities and obligations of a Member with respect to such Units, and (ii) the Board may,
in its sole discretion, reinstate all or any portion of the rights and privileges of such Member with respect to such Units for any period
of time prior to the Admission Date. Nothing contained herein shall relieve any Member who Transfers any Units from any liability of
such Member to the Company with respect to such Units that may exist on the Admission Date or that is otherwise specified in the Act
or for any liability to the Company or any other Person for any materially false statement made by such Member (in its capacity as such)
or for any present or future breaches of any representations, warranties or covenants by such Member (in its capacity as such) contained
herein or in the other agreements with the Company.
ARTICLE X
ACCOUNTING
Section 10.1 Books
of Account. The Company shall, and shall cause each Subsidiary to, maintain true books and records of account in which complete
and correct entries shall be made of all its business transactions pursuant to a system of accounting established and administered in
accordance with GAAP, and shall set aside on its books all such proper accruals and reserves as shall be required under GAAP.
Section 10.2 Tax
Elections. The Board shall cause the Company and any eligible Subsidiary to make an election (or continue a previously made election)
pursuant to Section 754 of the Code (and any analogous provision of any applicable state, local or non-U.S. Law) for the Taxable
Year that includes the date hereof and for each Taxable Year in which an Exchange occurs, and shall not thereafter revoke any such election.
Except as otherwise provided herein and in the Business Combination Agreement, the Board shall determine whether to make any other available
election pursuant to the Code.
Section 10.3 Tax
Returns; Information.
(a) The
Board shall arrange for the preparation and timely filing of all income and other tax and informational returns of the Company. The Company
shall prepare and deliver (or cause to be prepared and delivered) to each Person who was a Member at any time during the relevant quarter
of the relevant Taxable Year an estimated K-1, including reasonable quarterly estimates of such Member’s state tax apportionment
information and the allocations to such Member of taxable income, gains, losses, deductions or credits for such Taxable Year for U.S.
federal, and applicable state and local, income tax reporting purposes at least ten (10) days prior to the individual or corporate
quarterly estimate payment deadline for U.S. federal income taxes for calendar year filers (whichever is earlier). As promptly as reasonably
practicable following the end of each Taxable Year, the Company shall prepare and deliver (or cause to be prepared and delivered) to
each Person who was a Member at any time during such Taxable Year (i) an estimated IRS Schedule K-1 (and any similar form prescribed
for applicable state and local income tax purposes) or similar documents with such information of the Company and all relevant information
regarding the Company reasonably necessary for the Members to estimate their taxable income for such Taxable Year, and (ii) in no
event later than forty-five (45) days prior to the individual or corporate filing deadline (with extensions) for U.S. federal income
taxes for calendar year filers (whichever is earlier), a final IRS Schedule K-1 (and any similar form prescribed for applicable state
and local income tax purposes) and all relevant information regarding the Company reasonably necessary for the Members to file their
tax returns on a timely basis (including extensions) for such Taxable Year. Each Member and former Member shall furnish to the Company
all pertinent information in its possession that is reasonably necessary to enable the Company’s tax returns to be prepared and
filed. Each Member further agrees (including with respect to the Taxable Year that such Member becomes a former Member) that such Member
shall notify the Company and consult with the Company regarding a position on its tax return in the event such Member intends to file
its tax returns in a manner that is inconsistent with the Schedule K-1 or other statements furnished by the Company to such Member for
purposes of preparing tax returns.
(b) In
addition to each Member’s rights to information pursuant to and in accordance with Section 18-305 of the Act, each Member
shall be entitled to examine, either directly or through its representatives, the books and records of the Company or any of its Subsidiaries
at the principal office of the Company or such other location as the Board shall reasonably approve during normal business hours for
any purpose reasonably related to such Member’s interest as a Member of the Company with the information to which such Member shall
be entitled about the Company or any of its Subsidiaries being the same information to which a stockholder of a Delaware corporation
would have with respect to such corporation; provided that, in any event, the Board has a right to keep confidential from the
Members certain information in accordance with Section 18-305 of the Act.
Section 10.4 Company
Representative.
(a) As
of the Ninth LLCA Effective Time, PubCo was designated as the Company Representative, and PubCo hereby continues as the Company Representative.
In addition, PubCo is hereby authorized to designate or remove any other Person selected by PubCo as the Company Representative; provided
that all actions taken by the Company Representative pursuant to this Section 10.4 shall be subject to the overall oversight
and authority of the PubCo Board. For each Taxable Year in which the Company Representative is an entity, the Company shall appoint the
“designated individual” identified by the Company Representative and approved by the PubCo Board to act on
its behalf in accordance with the applicable Treasury Regulations or analogous provisions of state or local Law. Each Member hereby expressly
consents to such designations and agrees to take, and that the Board and PubCo Board are authorized to take (or cause the Company and
PubCo to take), such other actions as may be necessary or advisable pursuant to Treasury Regulations or other Internal Revenue Service
or Treasury guidance or state or local Law to cause such designations or evidence such Member’s consent to such designations, including
removing any Person designated as the Company Representative (including any “designated individual”) prior
to the date of this LLC Agreement.
(b) Subject
to this Section 10.4 and Section 10.1 of the Business Combination Agreement, the Company Representative shall
have the sole authority to act on behalf of the Company in connection with, make all relevant decisions regarding application of, and
to exercise the rights and powers provided for in the BBA Rules, including making any elections under the BBA Rules or any decisions
to settle, compromise, challenge, litigate or otherwise alter the defense of any Action, audit or examination before the Internal Revenue
Service or any other tax authority (each an “Audit”), and to reasonably expend Company funds for professional
services and other expenses reasonably incurred in connection therewith. Subject to the provisions of Section 10.4(d), the
Company Representative will have sole discretion to determine whether the Company (either on its own behalf or on behalf of the Members)
will contest or continue to contest any tax deficiencies assessed or proposed to be assessed by any tax authority.
(c) Subject
to Section 10.1(h) of the Business Combination Agreement, the Company Representative is authorized, to the extent permissible
under applicable Law, to cause the Company to pay any imputed underpayment of taxes and any related interest, penalties and additions
to tax determined in accordance with Code Section 6225 that may from time to time be required to be made under Code Section 6232
and to pay any similar amounts arising under state, local, or foreign tax Laws (together, “Imputed Tax Underpayments”).
Imputed Tax Underpayments also shall include any imputed underpayment within the meaning of Code Section 6225 (any similar amounts
arising under state, local, or foreign tax Laws) paid (or payable) by any entity treated as a partnership for U.S. federal income tax
purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for
U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Law or contract.
To the extent permissible under applicable Law, the Company Representative may cause the Company to allocate the amount of any Imputed
Tax Underpayment among the Members (including any former Members) in an equitable manner, taking into account, among other factors, the
magnitude of the Imputed Tax Underpayment, the nature of the tax items that are the subject of the adjustment giving rise to the Imputed
Tax Underpayment, the classification of the Members for U.S. federal income tax purposes, and the Persons who received (and the proportions
in which they received) the benefits of the activities that gave rise to that Imputed Tax Underpayment. To the extent that the Company
Representative elects to cause the Company to pay an Imputed Tax Underpayment, the Company Representative shall use commercially reasonable
efforts to pursue available procedures under applicable Law to reduce such Imputed Tax Underpayment on account of its Members’
(or any of the Members’ direct or indirect beneficial owners’) tax status, with any corresponding reduction being credited
to the applicable Member for purposes of allocating such Imputed Tax Underpayment among the relevant Members or former Members to the
extent relevant.
(d) Notwithstanding
anything to the contrary in this Section 10.4, the Company Representative shall timely make, or cause to be timely made,
the election provided for in Section 6226 of the Code (or any similar provision of state, local, or non-U.S. Laws) (a “Push-Out
Election”) with respect to any Audit of the Company for any Pre-Closing Tax Period (as defined in the Business Combination
Agreement) for which a Push-Out Election is available. In any case in which the Company Representative causes the Company to make a Push-Out
Election, each Member who was a Member of the Company for U.S. federal income tax purposes for the “reviewed year” (within
the meaning of Code Section 6225(d)(1) or similar concept under applicable state, local, or non-U.S. Law), shall take any adjustment
to income, gain, loss, deduction, credit or otherwise (as determined in the notice of final partnership adjustment or similar concept
under applicable state, local, or non-U.S. Law) into account as provided for in Code Section 6226(b) (or similar concept under
applicable state, local, or non-U.S. Law).
(e) Promptly
following the written request of the Company Representative, the Company shall, to the fullest extent permitted by Law, reimburse and
indemnify the Company Representative (including, for the avoidance of doubt, any “designated individual”) for
all reasonable expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the Company
Representative in connection with the exercise of its rights and fulfillment of its duties under this Section 10.4. Nothing
in this LLC Agreement will be construed to restrict the Company or the Company Representative from engaging an accounting firm or legal
counsel to assist the Company Representative in discharging its duties under this LLC Agreement.
(f) Each
Member agrees to cooperate in good faith with the Company Representative and to do or refrain from doing any or all things reasonably
requested by the Company Representative with respect to this Section 10.4, including timely providing any information reasonably
necessary or advisable for the Company Representative to comply with its obligations under Section 10.4(c), that is or are
reasonably necessary or advisable to reduce the amount of any tax, interest, penalties or similar amounts the cost of which is (or would
otherwise be) borne by the Company (directly or indirectly) or to make any election permitted by this LLC Agreement and the Code or other
relevant tax Law unless such Member is restricted from providing such information under any applicable Law or contract. Each Member acknowledges
that any action taken by the Company Representative in its capacity as such may be binding upon such Members and that such Member shall
not independently act with respect to Audits affecting the Company or its Subsidiaries. Notwithstanding anything to the contrary contained
in this LLC Agreement, no provision of this LLC Agreement shall require, or give any Person the right to require, PubCo or the Continuing
Members to file any amended tax return.
(g) Notwithstanding
anything to the contrary contained in this LLC Agreement, in the event of any conflict between Section 10.1 of the Business
Combination Agreement and this LLC Agreement, Section 10.1 of the Business Combination Agreement shall control. The Company,
the Company Representative, PubCo, and the Members hereby acknowledge and agree to the foregoing sentence and expressly agree to be bound
by the terms of Section 10.1 of the Business Combination Agreement, including that with respect to any Audit of the Company
or any of its Subsidiaries for any taxable period ending before or including the date of the Effective Time and for which a Push-Out
Election is available, all such available elections shall be made in accordance with applicable Laws.
(h) This
Section 10.4 shall be interpreted to apply to Members and former Members and shall survive the Transfer of a Member’s
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 10.5 Withholding
Tax Payments and Obligations.
(a) If
the Company or any other Person in which the Company holds an interest is required by Law to withhold or to make tax payments on behalf
of or with respect to any Member, or the Company is subjected to tax itself (including any amounts withheld from amounts directly or
indirectly payable to the Company or to any other Person in which the Company holds an interest) by reason of the status of any Member
as such or that is specifically attributable to a Member (including federal, state, local or foreign withholding, personal property,
unincorporated business or other taxes, the amount of any Imputed Tax Underpayments allocated to a Member in accordance with Section 10.4,
and any interest, penalties, additions to tax, and expenses related to any such amounts) (“Tax Advances”),
the Company may withhold such amounts and make such tax payments as so required, and each Member hereby authorizes the Company to do
so. All Tax Advances made on behalf of a Member shall be repaid by reducing the amount of the current or next succeeding Tax Distribution
or Tax Distributions and, if applicable, the proceeds of liquidation that would otherwise have been made to such Member under this LLC
Agreement; provided, that if a Tax Advance is made on behalf of a former Member, then such former Member shall indemnify and hold
harmless the Company for the entire amount of such Tax Advance. For all purposes of this LLC Agreement, such Member shall be treated
as having received the amount of the distribution, if applicable, that is equal to the Tax Advance at the time of such Tax Advance and
(if applicable) as having paid such Tax Advance to the relevant taxing jurisdiction. Notwithstanding the foregoing, to the extent that
the aggregate amount of Tax Advances for any period made on behalf of a Member exceeds the actual Tax Distributions that would have otherwise
been made to such Member during the fifteen (15) months following such Tax Advances, then such Member shall indemnify and hold harmless
the Company for the entire amount of such excess (which has not offset Tax Distributions pursuant to this Section 10.5);
provided, that such indemnification obligation shall be the several obligation of such Member and shall not be treated as Capital
Contributions. For the avoidance of doubt, any income taxes, penalties, additions to tax and interest payable by the Company or any fiscally
transparent entity in which the Company owns an interest shall be treated as specifically attributable to the Members and shall be allocated
among the Members such that the burden of (or any diminution in distributable proceeds resulting from) any such amounts is borne by those
Members to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise, including
pursuant to an allocation made under Section 10.4(c)), in each case as reasonably determined by the Board.
(b) This
Section 10.5 shall be interpreted to apply to Members and former Members and shall survive the Transfer of a Member’s
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.
ARTICLE XI
DISSOLUTION
Section 11.1 Liquidating
Events. The Company shall dissolve and commence winding up and liquidating upon the first to occur of the following (each, a
“Liquidating Event”):
(a) the
sale of all or substantially all of the assets of the Company;
(b) the
determination of the Board with the consent of PubCo, and with the consent of the Continuing Member Representative for so long as the
Continuing Members hold Common Units;
(c) the
termination of the legal existence of the last remaining Member of the Company or the occurrence of any other event which terminates
the continued membership of the last remaining Member in the Company unless the Company is continued without dissolution in a manner
permitted by this LLC Agreement or the Act; and
(d) the
entry of a decree of judicial dissolution under Section 18-802 of the Act.
The Members hereby agree
that the Company shall not dissolve prior to the occurrence of a Liquidating Event. In the event of a dissolution pursuant to Section 11.1,
the relative economic rights of each class of Units immediately prior to such dissolution shall be preserved to the greatest extent practicable
with respect to distributions made to Members pursuant to Section 11.3 in connection with such dissolution, subject to compliance
with applicable Laws, unless, with respect to any class of Units, (x) for so long as the Continuing Members hold Common Units, the
Continuing Member Representative and (y) holders of at least seventy-five percent (75%) of the Units of such class consent in writing
to a treatment other than as described above. The bankruptcy (within the meaning of the Act) of a Member will not cause such Member to
cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.
Section 11.2 Bankruptcy.
For purposes of this LLC Agreement, the “bankruptcy” of a Member shall mean the occurrence of any of the following: (a) (i) any
Governmental Entity shall take possession of any substantial part of the property of that Member or shall assume control over the affairs
or operations thereof, or (ii) a receiver or trustee shall be appointed, or a writ, order, attachment or garnishment shall be issued
with respect to any substantial part thereof, and such possession, assumption of control, appointment, writ or order shall continue for
a period of ninety (90) consecutive days, (b) a Member shall (i) admit in writing its inability to pay its debts when due,
or make an assignment for the benefit of creditors, (ii) apply for or consent to the appointment of any receiver, trustee or similar
officer or for all or any substantial part of its property or (iii) institute (by petition, application, answer, consent or otherwise)
any bankruptcy, insolvency, reorganization, arrangement, readjustment of debts, dissolution, liquidation, or similar proceeding under
the Laws of any jurisdiction or (c) a receiver, trustee or similar officer shall be appointed for such Member or with respect to
all or any substantial part of its property without the application or consent of that Member, and such appointment shall continue undischarged
or unstayed for a period of ninety (90) consecutive days or any bankruptcy, insolvency, reorganization, arrangement, readjustment of
debt, dissolution, liquidation or similar proceedings shall be instituted (by petition, application or otherwise) against that Member
and shall remain undismissed for a period of ninety (90) consecutive days.
Section 11.3 Procedure.
(a) In
the event of the dissolution of the Company for any reason, the Board or any Person designated by the Board (in such capacity, the “Liquidator”)
shall commence to wind up the affairs of the Company and, subject to Section 11.4(a), the Board or the Liquidator, as applicable,
shall have full right to determine in good faith the time, manner and terms of any sale or sales of the property or other assets pursuant
to such liquidation, having due regard to the activity and condition of the relevant market and general financial and economic conditions.
The Members shall continue to share Profits and Losses during the period of liquidation in the same manner and proportion as immediately
prior to the Liquidating Event. The Company shall engage in no further business except as may be necessary to preserve the value of the
Company’s assets during the period of winding up and liquidation.
(b) Following
the allocation of all Profits and Losses as provided in Article V, the net proceeds of the liquidation and any other funds
of the Company shall be distributed in the following order of priority:
(i) First,
to the payment and discharge of all expenses of liquidation and discharge of all of the Company’s Liabilities to creditors (whether
third parties or, to the fullest extent permitted by law, Members) to set up such cash reserves which the Board or the Liquidator reasonably
deems necessary for contingent, conditional or unmatured Liabilities or future payments described in this Section 11.3(b) (which
reserves when they become unnecessary shall be distributed in accordance with the provisions of clause (ii), below), in the order of
priority as provided by Law, except any obligations to the Members in respect of their Capital Accounts or liabilities under 18-601 or
18-604 of the Act; and
(ii) Second,
the balance to the Members in accordance with Section 6.1(a).
(c) Except
as provided in Section 11.4(b), no Member shall have any right to demand or receive property other than cash upon dissolution
and termination of the Company.
(d) Upon
the completion of the liquidation of the Company and the distribution of all Company funds, the Company shall terminate and the Liquidator
or any Officer shall have the authority to execute and record a certificate of cancellation of the Company, as well as any and all other
documents required to effectuate the termination of the Company.
(e) Prior
to the distribution of the proceeds of the liquidation and any other funds of the Company in liquidation, a proper accounting shall be
made from the date of the last previous accounting to the date of dissolution, and a final allocation of all items of income, gain, loss,
deduction and credit in accordance with Article V shall be made in such a manner that, immediately before distribution of
assets pursuant to Section 11.3(b)(ii), the positive balance of the Capital Account of each Member shall, to the greatest
extent possible, be equal to the net amount that would so be distributed to such Member (and any non-cash assets to be distributed will
first be written up or down to their Fair Market Value, thus creating hypothetical gain or loss (if any), which resulting hypothetical
gain or loss shall be allocated to the Members’ Capital Accounts in accordance with the requirements of Treasury Regulation Section 1.704-1(b) and
other applicable provisions of the Code and this LLC Agreement).
Section 11.4 Rights
of Members.
(a) Each
Member irrevocably waives any right that it may have to maintain an action for partition with respect to the property of the Company.
(b) Except
as otherwise provided in this LLC Agreement, (i) each Member shall look solely to the assets of the Company for the return of its
Capital Contributions, and (ii) no Member shall have priority over any other Member as to the return of its Capital Contributions,
distributions or allocations. The right to a return of Capital Contributions shall be solely to the extent set forth in this LLC Agreement.
Section 11.5 Notices
of Dissolution. In the event a Liquidating Event occurs, the Company shall, within thirty (30) days thereafter, (a) provide
written notice thereof to each of the Members and to all other parties with whom the Company regularly conducts business (as reasonably
determined by the Board), and (b) comply, in a timely manner, with all filing and notice requirements under the Act or any other
applicable Law.
Section 11.6 Reasonable
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 in order to minimize any losses that might otherwise result from such winding up.
Section 11.7 No
Deficit Restoration. No Member shall be personally liable for a deficit Capital Account balance of that Member, it being expressly
understood that the distribution of liquidation proceeds shall be made solely from existing Company assets.
ARTICLE XII
GENERAL
Section 12.1 Amendments;
Waivers.
(a) Except
as otherwise provided in this LLC Agreement, the terms and provisions of this LLC Agreement may be altered, modified or amended (including
by means of merger, consolidation or other business combination to which the Company is a party) only with the approval of the Board
and PubCo; provided, that no alteration, modification or amendment shall be effective until written notice has been provided to
the Members, and, for the avoidance of doubt, from and after the Effective Time, any Member shall have the right to file an Exchange
Notice prior to the effectiveness of such alteration, modification or amendment with respect to all of such Member’s remaining
Common Units; provided, further, that no amendment to this LLC Agreement may (w) disproportionately and adversely
affect a Member or remove a right or privilege granted to a Member, without such Member’s prior written consent (provided
that the creation or issuance of any new Unit or Equity Security of the Company permitted pursuant to Section 4.1 and Section 4.3
and any amendments or modifications to this LLC Agreement to the extent necessary to reflect such creation or issuance shall not
be deemed to disproportionately and adversely affect a Member or remove a right or privilege specifically granted to a Member in any
event); or (x) modify the limited liability of any Member, or increase the Liabilities of any Member, in each case, without the
prior written consent of each such affected Member; or (y) alter or change any rights, preferences or privileges of any Units in
a manner that is different or prejudicial relative to any other Units in the same class of Units, without the prior written consent of
each such affected Member; or (z) modify the requirement that any action, election, decision or determination that is required to
be approved or made by the Disinterested Majority of the PubCo Board (including in respect of Section 4.6) be so approved
or made by the Disinterested Majority of the PubCo Board, without the prior written approval of the Disinterested Majority serving on
the PubCo Board at such time as such modification is proposed to be made.
(b) Notwithstanding
the foregoing clause (a), from and after the Effective Time, any Officer, acting alone, may amend this LLC Agreement, including Exhibit A,
(i) to reflect the admission of new Members, Transfers of Units, the issuance of additional Units, in each case in accordance with
the terms of this LLC Agreement, and, subject to Section 12.1(a), subdivisions or combinations of Units made in accordance
with Section 4.1(h) and (ii) as necessary as determined by the Board, and solely to the extent necessary, based
on the reasonable written advice of legal counsel or a qualified tax advisor (including any nationally recognized accounting firm) to
the Company, to avoid the Company being classified as a “publicly traded partnership” within the meaning of Section 7704(b) of
the Code.
(c) No
waiver of any provision or default under, nor consent to any exception to, the terms of this LLC Agreement shall be effective unless
in writing and signed by the Party to be bound and then only to the specific purpose, extent and instance so provided.
Section 12.2 Further
Assurances. Each Party agrees that it will from time to time, upon the reasonable request of another Party, execute such documents
and instruments and take such further action as may be reasonably required to carry out the provisions of this LLC Agreement. The consummation
of Transfers, Exchanges and issuances of Equity Securities pursuant to this LLC Agreement shall be subject to, and conditioned on, the
completion of any required regulatory filings with any applicable Governmental Entity (or the termination or expiration of any waiting
period in connection therewith), including the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, to the extent required in connection with such Transfer, Exchange or issuance. The Members shall
reasonably cooperate in connection with any such filing.
Section 12.3 Successors
and Assigns. All of the terms and provisions of this LLC Agreement shall be binding upon the Parties and their respective successors
and assigns, but shall inure to the benefit of and be enforceable by the successors and assigns of any Member only to the extent that
they are permitted successors and assigns pursuant to the terms of this LLC Agreement. No Party may assign its rights under this LLC
Agreement except as permitted pursuant to this LLC Agreement, including assignment of such rights to a Permitted Transferee and a Transferee
of Units pursuant to and in accordance with Section 9.3.
Section 12.4 Entire
Agreement. This LLC Agreement, together with all Exhibits and Schedules to this LLC Agreement, the Business Combination Agreement,
and all other Ancillary Agreements (as such term is defined in the Business Combination Agreement), constitute the entire agreement among
the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings
and discussions, whether oral or written, relating to such subject matter in any way and there are no warranties, representations or
other agreements between the Parties in connection with such subject matter except as set forth in this LLC Agreement and therein.
Section 12.5 Rights
of Members Independent. The rights available to the Members under this LLC Agreement and at Law shall be deemed to be several
and not dependent on each other and each such right accordingly shall be construed as complete in itself and not by reference to any
other such right. Any one or more and/or any combination of such rights may be exercised by a Member and/or the Company from time to
time and no such exercise shall exhaust the rights or preclude another Member from exercising any one or more of such rights or combination
thereof from time to time thereafter or simultaneously.
Section 12.6 Governing
Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all Actions, claims or matters
related to or arising from this LLC Agreement (including any tort or non-contractual claims) and (b) any questions concerning the
construction, interpretation, validity and enforceability of this LLC Agreement, and the performance of the obligations imposed by this
LLC 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.
EACH PARTY TO THIS LLC AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THIS LLC AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS LLC AGREEMENT AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER
THIS LLC AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to
the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such court declines jurisdiction, then to the
Federal District Court for the District of Delaware or if such court declines jurisdiction, then to any other State court in Delaware
having jurisdiction, in any Action arising out of or relating to this LLC Agreement, agrees that all claims in respect of the Action
shall be heard and determined in any such court and agrees not to bring any Action arising out of or relating to this LLC Agreement in
any other courts. Nothing in this Section 12.6, however, shall affect the right of any Party to serve legal process in any
other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Action so brought shall be conclusive and
may be enforced by suit on the judgment or in any other manner provided by Law or at equity.
Section 12.7 Headings.
The descriptive headings of the Articles, Sections and clauses of this LLC Agreement are for convenience only and do not constitute a
part of this LLC Agreement.
Section 12.8 Counterparts;
Electronic Delivery. This LLC Agreement and any amendment hereto or any other agreements delivered pursuant to this LLC Agreement
may be executed and delivered in one or more counterparts and by fax, email or other electronic transmission, each of which shall be
deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of a fax machine or
email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use
of a fax machine or email as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.
Section 12.9 Notices.
All notices, demands and other communications to be given or delivered under this LLC 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 received by email (with confirmation
of transmission) prior to 5:00 p.m. eastern time on a Business Day and, if otherwise, on the next Business Day, (b) one (1) Business
Day following sending 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 12.9, notices, demands and other communications shall be sent to the addresses indicated
below:
If to the Company or the Managers:
Inspirato Incorporated
1544 Wazee Street
Denver, CO 80202
Attention: Legal Department
Email: legal@inspirato.com
and
Inspirato LLC
1544 Wazee Street,
Denver, CO 80202
Attention: Legal Department
Email: legal@inspirato.com
with a copy (which shall not constitute notice) to:
Wilson
Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Tony Jeffries and Adam Bloom
Email: tjeffries@wsgr.com and abloom@wsgr.com
and
Wilson Sonsini Goodrich & Rosati
One Market Plaza, Spear Tower, Suite 3300
San Francisco, CA 94105
Attention: Ethan Lutske
E-mail: elutske@wsgr.com
If to any Member, to the address for such Member set forth
on Exhibit A.
Section 12.10 Representation
by Counsel; Interpretation. The Parties acknowledge that each Party to this LLC Agreement has been represented by counsel in
connection with this LLC Agreement and the transactions contemplated by this LLC Agreement. Accordingly, any rule of Law, or any
legal decision that would require interpretation of any claimed ambiguities in this LLC Agreement against the Party that drafted it has
no application and is expressly waived.
Section 12.11 Severability.
Whenever possible, each provision of this LLC Agreement shall be interpreted in such manner as to be effective and valid under applicable
Law, but if any provision of this LLC Agreement or the application of any such provision to any Person or circumstance shall be held
to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating
the remainder of such provision or the remaining provisions of this LLC Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this LLC Agreement a legal, valid and enforceable provision as similar in
terms to such illegal, invalid, or unenforceable provision as may be possible.
Section 12.12 Expenses.
Except as otherwise provided in this LLC Agreement (or as set forth in the Business Combination Agreement with respect to expenses incurred
in connection with the entry into this LLC Agreement), each Party shall bear its own expenses in connection with the transactions contemplated
by this LLC Agreement.
Section 12.13 No
Third Party Beneficiaries. Except as provided in Section 7.6 and Section 10.3(a), this LLC Agreement
is for the sole benefit of the Parties and their permitted assigns and nothing herein, express or implied, shall give or be construed
to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights under this LLC Agreement.
Section 12.14 Confidentiality.
Except as required by applicable Law, each Member agrees to hold the Company’s Confidential Information in confidence and shall
not, unless authorized in writing by the Board, (a) disclose any Confidential Information to any third party or (b) use such
information except in furtherance of the business of the Company; provided, however, that (i) each Member may disclose
Confidential Information to such Member’s Affiliates, attorneys, accountants, consultants and other advisors who are bound by an
obligation of confidentiality with respect to such Confidential Information; provided such Member will be responsible for any
violation by any of its Affiliates, attorneys, accountants, consultants or other advisors of the confidentiality provisions in this Section 12.14,
(ii) each Member may disclose Confidential Information as required in response to any summons, subpoena or other legal requirement,
provided that such Member shall promptly notify the Company in writing so the Company may seek a protective order or appropriate
remedy, (iii) each Member may disclose Confidential Information to a proposed Transferee if such disclosure is reasonably required
in connection with any proposed Transfer of Units to such Transferee pursuant to the terms of this LLC Agreement, and (iv) each
Member may disclose Confidential Information to the extent necessary for such Member to prepare and file its tax returns, to respond
to any inquiries regarding such tax returns from any taxing authority or to prosecute or defend any action, proceeding or audit by any
taxing authority with respect to such tax returns. In addition, each of the Continuing Members that is private equity, venture capital
or other investment firm or similarly regulated entity (x) may disclose Confidential Information in connection with routine supervisory
audit or regulatory examinations (including by regulatory or self-regulatory bodies) to which they are subject in the course of their
respective businesses without liability hereunder and (y) shall not be required to provide notice to any party in the course of
any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not specifically
target PubCo, any of its subsidiaries or the Confidential Information, and (z) may provide information about the subject matter
of this LLC Agreement to prospective and existing investors in connection with fund raising, marketing, informational, transactional
or reporting activities. Each Member and the Company acknowledges and agrees that the certain of the Continuing Members and their respective
Affiliates may currently be invested in, may invest in, or may consider investments in companies that compete either directly or indirectly
with PubCo and its Subsidiaries, or operate in the same or similar business as PubCo and its Subsidiaries, and that nothing herein shall
be in any way construed to prohibit or such Continuing Members or their respective Affiliates’ ability to maintain, make or consider
such other investments; provided, however, that no Confidential Information is used or disclosed in connection with such
activities.
Section 12.15 No
Recourse. Notwithstanding anything that may be expressed or implied in this LLC Agreement (except in the case of the immediately
succeeding sentence and Section 7.6) or any document, agreement, or instrument delivered contemporaneously herewith, and
notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the
benefits of this LLC Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder
and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments
delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith
shall be had against, any former, current or future director, officer, agent, Affiliate, manager, general partner, assignee, incorporator,
controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any
former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted
assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager,
assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of
any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party
Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, contract
or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Action,
or by virtue of any statute, regulation or other applicable Law, or otherwise; it being expressly agreed and acknowledged that no personal
Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations
of the applicable Party under this LLC Agreement or the transactions contemplated by this LLC Agreement, under any documents or instruments
delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith,
or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation.
Notwithstanding the foregoing, a Non-Party Affiliate may have obligations under any documents, agreements or instruments delivered contemporaneously
herewith or otherwise required by this LLC Agreement if such Non-Party Affiliate is party to such document, agreement or instrument.
Except to the extent otherwise expressly set forth in, and subject in all cases to the terms and conditions of and limitations herein,
this LLC Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related
to this LLC Agreement, or the negotiation, execution or performance of this LLC Agreement, may only be brought against the Persons that
are expressly named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party.
Each Non-Party Affiliate is expressly intended as a third party beneficiary of this Section 12.15.
[Signatures on Next Page]
IN WITNESS WHEREOF, each
of the Parties hereto has caused this Tenth Amended and Restated Limited Liability Company Agreement to be executed as of the day and
year first above written.
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INSPIRATO LLC |
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/s/ Robert Kaiden |
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Name: Robert Kaiden |
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Title: Chief Financial Officer |
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INSPIRATO INCORPORATED |
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/s/ Robert Kaiden |
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Name: Robert Kaiden |
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Title: Chief Financial Officer |
[Signature Page to Tenth Amended and Restated
Limited Liability Company Agreement of Inspirato LLC]
EXHIBIT A
Capitalization
See attached.
EXHIBIT B
Exchange Notice
Dated: _____________
Inspirato Incorporated
1544 Wazee Street
Denver, CO
Attention: Secretary
copy to:
[Name]
[Address]
Attention:
Reference is hereby made
to the Tenth Amended and Restated Limited Liability Company Agreement, dated as of September 29, 2023 (as amended from time to time
in accordance with its terms, the “LLC Agreement”) of Inspirato LLC, a Delaware limited liability company (the
“Company”), by and among Inspirato Incorporated (f/k/a Thayer Ventures Acquisition Corporation), a Delaware
corporation (“PubCo”), the other Members set forth on Exhibit A to the LLC Agreement (together with PubCo,
the “Existing Members”) and each other Person who is or at any time becomes a Member in accordance with the
terms of this LLC Agreement and the Act (such Persons, together with the Existing Members, the “Unitholders”).
Capitalized terms used but not defined herein shall have the meanings given to them in the LLC Agreement.
Effective as of the Exchange
Date as determined in accordance with the LLC Agreement, the undersigned Unitholder hereby transfers and surrenders the number of Common
Units set forth below to the Company and an equal number of shares of Class V Common Stock to PubCo held by such Unitholder in Exchange
for the issuance to the undersigned Unitholder of that number of shares of Class A Common Stock equal to the number of Common Units
so exchanged (to be issued in its name as set forth below), or, at the election of PubCo, for a Cash Exchange Payment to the account
set forth below, in each case in accordance with the LLC Agreement. The undersigned hereby acknowledges that the Exchange of Common Units
shall include the cancellation of an equal number of outstanding shares of Class V Common Stock held by the undersigned that have
been surrendered in such Exchange.
Legal Name of Unitholder:____________________________________________
Address:__________________________________________________________
Number of Common Units to be Exchanged:_____________________________
Cash Exchange Payment instructions:___________________________________
If the Unitholder desires
the shares of Class A Common Stock be settled through the facilities of [The Depositary Trust Company (“DTC”)],
please indicate the account of the [DTC] participant below.
In the event PubCo elects
to certificate the shares of Class A Common Stock issued to the Unitholder, please indicate the following:
Legal Name for Certificate Delivery:__________________________________
Address for Certificate Delivery:_____________________________________
The undersigned hereby represents
and warrants that the undersigned is the owner of the number of Common Units the undersigned is electing to Exchange pursuant to this
Exchange Notice, and that such Common Units are not subject to any liens or restrictions on transfer (other than restrictions imposed
by the LLC Agreement, the charter and governing documents of PubCo and applicable Law).
The undersigned hereby irrevocably
constitutes and appoints any officer of PubCo, as applicable, as the attorney of the undersigned, with full power of substitution and
resubstitution in the premises, solely to do any and all things and to take any and all actions necessary to effect the Exchange elected
hereby.
[Signatures on Next Page]
IN WITNESS WHEREOF the undersigned
has caused this Exchange Notice to be executed and delivered as of the date first set forth above.
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EXHIBIT C
Officers
[****]
EXHIBIT D
Form of Joinder
This Joinder (this “Joinder”)
to the LLC Agreement (as defined below), made as of _______________________, is between _____________________ (“Transferor”)
and _______________________(“Transferee”).
WHEREAS, as of the date hereof,
Transferee is acquiring ____________________________ (the “Acquired Interests”) from Transferor;
WHEREAS, Transferor is a
party to that certain Tenth Amended and Restated Limited Liability Company Agreement of Inspirato LLC (the “Company”),
dated as of September 29, 2023, by and among the Company, Inspirato Incorporated (f/k/a Thayer Ventures Acquisition Corporation),
a Delaware corporation (“PubCo”), the other Members set forth on Exhibit A to the LLC Agreement, and each
other Person who is or at any time becomes a Member in accordance with the terms of the LLC Agreement (as the same may be amended and/or
restated from time to time, the “LLC Agreement”); and
WHEREAS, Transferee is required,
at the time of and as a condition to such Transfer, to become a party to the LLC Agreement by executing and delivering this Joinder,
whereupon such Transferee will be admitted as a Member and treated as a Party (with the rights and obligations as a Member) for all purposes
of the LLC Agreement.
NOW, THEREFORE, in consideration
of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
1.1 Definitions.
To the extent capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective meanings set
forth in the LLC Agreement.
1.2 Acquisition.
Transferor hereby Transfers to Transferee all of the Acquired Interests.
1.3 Joinder.
Transferee hereby acknowledges and agrees that (a) such Transferee has received and read the LLC Agreement, (b) such Transferee
is acquiring the Acquired Interests in accordance with and subject to the terms and conditions of the LLC Agreement and (c) such
Transferee will be admitted as a Member and treated as a Party (with the same rights and obligations as the Transferor) for all purposes
of the LLC Agreement and, accordingly, agrees to be bound by the provisions of the LLC Agreement in its capacity as a Member.
1.4 Notice.
Any notice, demand or other communication under the LLC Agreement to Transferee shall be given to Transferee at the address set forth
on the signature page hereto in accordance with Section 12.9 of the LLC Agreement.
1.5 Governing
Law. This Joinder shall be governed by and construed in accordance with the law of the State of Delaware.
1.6 Counterparts;
Electronic Delivery. This Joinder may be executed and delivered in one or more counterparts, by fax, email or other electronic transmission,
each of which shall be deemed an original and all of which shall be considered one and the same agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, this
Joinder has been duly executed and delivered by the parties as of the date first above written.
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Exhibit 3.2
CERTIFICATE OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF
INSPIRATO INCORPORATED
Inspirato Incorporated, a corporation organized
and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
A. The
Corporation was originally incorporated under the name of Thayer Ventures Acquisition Corporation, and the original certificate of incorporation
of the Corporation was filed with the Secretary of State of the State of Delaware on July 31, 2020.
B. This
Certificate of Amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware,
as amended from time to time (the “DGCL”).
C. Article IV
of the Certificate of Incorporation of the Corporation is hereby restated and amended in its entirety to read as follows:
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized
to issue is 1,700,000,000 shares, consisting of (a) 1,600,000,000 shares of common stock (the “Common Stock”),
including (i) 1,000,000,000 shares of Class A common stock (the “Class A Common Stock”), (ii) 500,000,000
shares of Class V common stock (the “Class V Common Stock”) and (iii) 100,000,000 shares of Class B
non-voting common stock (the “Class B Non-Voting Common Stock”), and (b) 100,000,000 shares of preferred
stock (the “Preferred Stock”). The number of authorized shares of either Common Stock (including, for the avoidance
of doubt, the number of authorized shares of Class A Common Stock, Class V Common Stock and Class B Non-Voting Common Stock)
or Preferred Stock may be increased or decreased (but not below the number of shares of such class then outstanding or, in the case of
Common Stock, then necessary for issuance in connection with the exchange of Common Units of Inspirato LLC (the “Common Units”)
pursuant to Section 4.6 (an “Exchange”) of that certain Ninth Amended and Restated Limited Liability Company
Agreement of Inspirato LLC (the “LLC Agreement”) by the affirmative vote of the holders of a majority in voting
power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL
(or any successor provision thereto), and no vote of the holders of the Common Stock or Preferred Stock, as applicable, voting separately
as a class shall be required therefor, unless a separate vote is required pursuant to any Preferred Stock Designation (as defined below).
Except as expressly provided herein, the rights,
preferences and powers of the Class A Common Stock and Class B Non-Voting Common Stock shall be in all respects and for all
purposes and in all circumstances absolutely and completely identical.
The term “Business Combination”,
as used in this Amended and Restated Certificate, shall mean a merger, capital stock exchange, asset acquisition, stock purchase, reorganization
or similar business combination involving the Corporation and one or more businesses. The term “Offering” as
used in this Amended and Restated Certificate shall mean the Corporation’s initial public offering of securities.
Section 4.2 Preferred Stock. Subject
to Article IX of this Amended and Restated Certificate, the Board of Directors of the Corporation (the “Board”)
is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock
and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations,
powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications,
limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance
of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant
to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt
any such resolution or resolutions.
Section 4.3 Common Stock.
(a) Voting.
(i) Except as otherwise provided in this Amended
and Restated Certificate or as required by applicable law, each holder of record of Class A Common Stock, as such, shall be entitled
to one vote for each share of Class A Common Stock held of record as of the applicable record date by such holder on all matters
on which stockholders generally are entitled to vote.
(ii) Except as otherwise provided in this
Amended and Restated Certificate or as required by applicable law, each holder of record of Class V Common Stock, as such, shall
be entitled to one vote for each share of Class V Common Stock held of record as of the applicable record date by such holder on
all matters on which stockholders generally or holders of Class V Common Stock as a separate class are entitled to vote (whether
voting separately as a class or together with one or more classes of the Corporation’s capital stock).
(iii) Except as otherwise provided in this
Amended and Restated Certificate or required by applicable law, at any annual or special meeting of the stockholders of the Corporation,
holders of the Class A Common Stock and holders of the Class V Common Stock shall vote together as a single class (or, if the
holders of one or more series of Preferred Stock are entitled to vote together with holders of the Class A Common Stock and holders
of the Class V Common Stock, as a single class with the holders of such other series of Preferred Stock) on all matters submitted
to a vote of the stockholders having voting rights generally, and, subject to the terms of any Preferred Stock, shall have the exclusive
right to vote for the election of directors and all other matters properly submitted to a vote of the stockholders. Notwithstanding the
foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), holders
of shares of any series of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including
any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock
or other series of Common Stock if the holders of such affected series of Preferred Stock or Common Stock, as applicable, are entitled
exclusively, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended
and Restated Certificate (including any Preferred Stock Designation) or the DGCL.
(iv) Notwithstanding any stated or statutory
voting rights, except as otherwise provided in Section 4.3(g) hereof, the Class B Non-Voting Common Stock shall be non-voting
for purposes of the BHC Act (as defined below), and the holders of the Class B Non-Voting Common Stock shall have no voting power,
and shall not have the right to participate in any meeting of stockholders or to have notice thereof, to the fullest extent permitted
by applicable law.
(b) Dividends and Distributions.
(i) Class A Common Stock and Class B
Non-Voting Common Stock. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock
having a preference over or the right to participate with the Class A Common Stock and Class B Non-Voting Common Stock with
respect to the payment of dividends and other distributions in cash, stock of any corporation or property of the Corporation, the holders
of Class A Common Stock and the holders of Class B Non-Voting Common Stock shall be entitled to receive equally and ratably,
taken together as a single class, in proportion to the number of shares held by each such stockholder such dividends and other distributions
as may from time to time be declared by the Board in its discretion 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. In no event shall any dividends or other distributions
be declared or made on the Class A Common Stock or Class B Non-Voting Common Stock unless the shares of Class A Common
Stock and Class B Non-Voting Common Stock at the time outstanding are treated equally and identically, provided that, in the
event of a dividend of Common Stock or rights to acquire Common Stock, shares of Class B Non-Voting Common Stock shall only be entitled
to receive shares of Class B Non-Voting Common Stock or rights to acquire Class B Non-Voting Common Stock and shares of Class A
Common Stock shall only be entitled to receive an equal number of shares of Class A Common Stock or rights to acquire Class A
Common Stock.
(ii) Class V Common Stock. Dividends
and other distributions shall not be declared or paid on the Class V Common Stock.
(c) Liquidation, Dissolution or Winding Up;
Deemed Liquidation Events. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, or any Liquidation Event, after payment or provision for payment of the debts and other liabilities of the Corporation and
of the preferential and other amounts, if any, to which the holders of Preferred Stock having a preference over the Class V Common
Stock as to distributions upon dissolution, liquidation, winding up or a Deemed Liquidation Event, the holders of shares of Class V
Common Stock shall be entitled to receive $0.0001 per share, and upon receiving such amount, such holders of shares of Class V Common
Stock, as such, shall not be entitled to receive any other assets or funds of the Corporation. Thereafter, the holders of all outstanding
shares of Class A Common Stock and Class B Non-Voting Common Stock shall be entitled to receive the remaining assets of the
Corporation available for distribution equally and ratably in proportion to the number of shares held by each such stockholder. For purposes
of this Amended and Restated Certificate, “Deemed Liquidation Event” shall mean (i) any consolidation or
merger of the Corporation with or into any other corporation or other entity or person, or any other corporate reorganization, other than
any such consolidation, merger or reorganization in which the shares of capital stock of the Corporation immediately prior to such consolidation,
merger or reorganization continue to represent a majority of the voting power of the surviving entity (or, if the surviving entity is
a wholly owned subsidiary, its Parent) immediately after such consolidation, merger or reorganization; provided, that, for the purpose
of this Section 4.3(c), all stock, options, warrants, purchase rights or other securities exercisable for or convertible into Common
Stock outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger
or consolidation and, if applicable, converted or exchanged in such merger or consolidation on the same terms as the actual outstanding
shares of capital stock are converted or exchanged; (B) any transaction or series of related transactions to which the Corporation
is a party in which shares of the Corporation are transferred such that in excess of fifty percent (50%) of the Corporation’s voting
power is transferred; provided, that, an Acquisition shall not include any transaction or series of transactions principally for bona
fide equity financing purposes in which cash is received by the Corporation or any successor or indebtedness of the Corporation is cancelled
or converted or a combination thereof; or (C) a sale, lease, exclusive license or other disposition of all or substantially all of
the assets of the Corporation.
(d) Cancellation of Class V Common Stock.
In the event that any outstanding share of Class V Common Stock shall cease to be held directly or indirectly by a holder of
a Common Unit, as set forth in the books and records of Inspirato LLC (including pursuant to an Exchange), such share shall automatically
and without further action on the part of the Corporation or any holder of Class V Common Stock be transferred to the Corporation
and cancelled for no consideration. The Corporation shall not issue additional shares of Class V Common Stock after the Effective
Time other than in connection with the valid issuance of Common Units in accordance with Sections 4.1 and 4.3 of the LLC Agreement, such
that after such issuance of Class V Common Stock such holder of Common Units holds an identical number of Common Units and shares
of Class V Common Stock.
(e) Reservation of Stock. The Corporation
shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock an amount equal to
the number of then-outstanding Common Units subject to Exchange from time to time. Furthermore, the Corporation shall at all times reserve
and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Class A Common
Stock or Class B Non-Voting Common Stock, as the case may be, pursuant to Section 4.3(h)(ii) hereof, such number of its
duly authorized shares of Class A Common Stock or Class B Non-Voting Common Stock, as the case may be, as shall from time to
time be sufficient to effect the conversion of outstanding Class A Common Stock or Class B Non-Voting Common Stock, as applicable,
according to the respective conversion rights in Section 4.3(h)(ii). If at any time the number of authorized but unissued shares
of Class A Common Stock or Class B Non-Voting Common Stock shall not be sufficient to effect the conversion of all then outstanding
shares of the Class A Common Stock or Class B Non-Voting Common Stock, as the case may be, that are convertible pursuant to
Section 4.3(h)(ii), the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued
shares of each such type of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Amended and Restated Certificate.
(f) Splits. If the Corporation at any
time combines or subdivides (by any stock split, reverse stock split, stock dividend, recapitalization, reorganization, merger, amendment
of this Amended and Restated Certificate, scheme, arrangement or otherwise (each, a “Split”)) any series of
Common Stock into a greater or lesser number of shares, the shares of each other series of Common Stock outstanding immediately prior
to such Split shall be equally proportionately combined or subdivided such that the proportion of shares of outstanding Class V Common
Stock, Class A Common Stock and Class B Non-Voting Common Stock immediately prior to such Split shall be maintained immediately
after such Split; provided, that such actions with respect to the Class V Common Stock shall be subject to Section 4.1(i) and
the last sentence of Section 3.1 of the LLC Agreement. Any adjustment described in this Section 4.3(f) shall
become effective at the close of business on the date the Split becomes effective.
(g) Class B Non-Voting Common Stock
Protective Provisions.
(i) The Corporation shall not (in any case,
by merger, consolidation, operation of law or otherwise) alter or repeal any provision of this Amended and Restated Certificate or the
Bylaws of the Corporation (and any such act or transaction entered into shall be null and void ab initio, and of no force or effect):
(A) other than pursuant to the terms of any
Preferred Stock, in a manner that significantly and adversely affects the preferences, rights, privileges or powers of the Class B
Non-Voting Common Stock, including, but not limited to, the authorization of a series of Common Stock senior to the Class B Non-Voting
Common Stock, the modification of the terms of the Class B Non-Voting Common Stock, any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, or the payment of dividends by the Corporation when preferred dividends are in arrears,
without (in addition to any other vote required by applicable law or this Amended and Restated Certificate) the affirmative vote of at
least a majority of the shares of Class B Non-Voting Common Stock then outstanding, voting separately as a class; or
(B) in a manner that would change the status
of Class B Non-Voting Common Stock to become a Class of Voting Securities (as defined below), without (in addition to any other
vote required by law or in this Amended and Restated Certificate) the written consent of each Regulated Investor (as defined below).
(h) Conversion of Class A Common Stock
and Class B Non-Voting Common Stock.
(i) Definitions. For all purposes of
this Article IV, the following terms have the following meanings:
(A) “BHC Act” means
Bank Holding Company Act of 1956, as amended and as interpreted and implemented by the Board of Governors of the Federal Reserve System,
whether pursuant to regulation, interpretation or otherwise.
(B) “Class of Voting Securities”
means a “class of voting securities” as defined for purposes of the BHC Act.
(C) “Permitted Regulatory Transfer”
means a transfer of capital stock of the Corporation by a Regulated Investor or Transferee to a party that is not an affiliate (as the
term “affiliate” is used for purposes of the BHC Act) of such Regulated Investor or Transferee:
(1) in a widespread public distribution;
(2) to the Corporation;
(3) in which no transferee (or group of associated
or affiliated transferees) would receive two percent (2%) or more of the outstanding securities of any Class of Voting Securities
(as such percentage is calculated for purposes of the BHC Act) of the Corporation; or
(4) to a person or entity that would control
greater than fifty percent (50%) of every Class of Voting Securities of the Corporation (as such percentage is calculated for purposes
of the BHC Act), without giving effect to such transfer.
(D) “Permitted Regulatory Transferee”
means a party who acquires shares of capital stock of the Corporation from a Regulated Investor or its Transferee in a Permitted Regulatory
Transfer.
(E) “Regulated Investor”
means a holder of any shares of the Corporation’s capital stock that is a bank holding company or financial holding company or an
affiliate thereof under the BHC Act, together with any affiliates (as defined under the BHC Act) of such holder.
(F) “Transferee” means
a party to whom a Regulated Investor directly or indirectly transfers shares of capital stock of the Corporation, including any subsequent
transferee of any such party, except for a Permitted Regulatory Transferee.
(ii) Conversion.
(A) Conversion of Class A Common Stock
into Class B Non-Voting Common Stock. Any holder of Class A Common Stock who is a Regulated Investor or Transferee shall,
at its option, at any time and from time to time, have the right to convert each share of Class A Common Stock held by such holder
into one fully paid and nonassessable share of Class B Non-Voting Common Stock (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like with respect to such shares), without the payment of additional consideration by the Regulated
Investor or Transferee.
(B) Conversion of Class B Non-Voting
Common Stock into Class A Common Stock. Except as otherwise provided in this provision, shares of Class B Non-Voting Common
Stock held by a Regulated Investor or a Transferee shall not be convertible into Class A Common Stock; provided that any shares of
Class B Non-Voting Common Stock held by a Permitted Regulatory Transferee shall be convertible, at the option of such Permitted Regulatory
Transferee, upon (but not before) the transfer thereof in a Permitted Regulatory Transfer, with each such share of Class B Non-Voting
Common Stock converting into one fully paid and nonassessable share of Class A Common Stock (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like with respect to such shares); provided, further, that if at any time the Corporation
issues additional shares of Class A Common Stock and as a result, a Regulated Investor’s or its Transferee’s ownership
percentage in the Class A Common Stock falls below its original ownership percentage of Class A Common Stock, then such Regulated
Investor or its Transferees shall be permitted to convert such number of shares of Class B Non-Voting Common Stock into fully paid
and nonassessable shares of Company Class A Common Stock on a 1:1 basis (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares) without the payment of additional consideration by the Regulated Investor
or its Transferees, to the extent, and solely for the purposes of allowing such Regulated Investor or its Transferees to maintain its
original ownership percentage of Class A Common Stock and in no event greater than 4.99% of any “class” of “voting
securities” (each as defined and as such percentage is calculated under the BHC Act).
(iii) Mechanics of Conversion.
(A) Notice of Conversion. In order for
a holder of Class A Common Stock to voluntarily convert shares of Class A Common Stock into shares of Class B Non-Voting
Common Stock or a holder of Class B Non-Voting Common Stock to voluntarily convert shares of Class B Non-Voting Common Stock
into shares of Class A Common Stock pursuant to Section 4.3(h)(ii), as the case may be, such holder shall provide written notice
(the “Conversion Notice”) to the Corporation’s transfer agent at the office of the transfer agent for
the Common Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent) that such holder
elects to convert all or any number of such holder’s shares of Class A Common Stock or Class B Non-Voting Common Stock
and, if applicable, any event on which such conversion is contingent. The Conversion Notice shall state such holder’s name or the
names of the nominees in which such holder wishes the converted shares to be issued. The close of business on the date of receipt by the
transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of the Conversion Notice or the happening of
a future event specified in such Conversion Notice shall be the time of conversion, and the shares of Class A Common Stock or Class B
Non-Voting Common Stock, as the case may be, issuable upon conversion of the specified shares shall be deemed to be outstanding of record
as of such date; provided, however, that any delivery of a Conversion Notice on any date when the stock transfer books of the Corporation
shall be closed shall constitute the person or persons in whose name or names the shares of Class B Non-Voting Common Stock and Class A
Common Stock are to be issued as the record holder or holders thereof for all purposes immediately prior to the close of business on the
next succeeding day on which such stock transfer books are open.
(B) Confirmation of Conversion. As promptly
as practicable after the delivery of a Conversion Notice, the Corporation will deliver or cause to be delivered, as specified in the Conversion
Notice, a confirmation of book-entry transfer of shares of stock representing the number of fully paid and non-assessable shares of Class A
Common Stock or Class B Non-Voting Common Stock, as applicable, issuable upon such conversion, issued in such name or names as were
specified in the Conversion Notice.
(C) Cancellation upon Conversion. When
shares of Class B Non-Voting Common Stock have been converted into Class A Common Stock pursuant to this Amended and Restated
Certificate, they shall automatically be cancelled and become authorized but unissued shares of Class B Non-Voting Common Stock.
When shares of Class A Common Stock have been converted into Class B Non-Voting Common Stock pursuant to this Amended and Restated
Certificate, they shall automatically be cancelled and become authorized but unissued shares of Class A Common Stock.
(iv) Taxes. The Corporation shall bear
and pay any and all issue, transfer, stamp, documentary and other similar taxes that may be payable in respect of any issuance or delivery
of shares of Class A Common Stock or Class B Non-Voting Common Stock, as the case may be, or upon conversion of shares of Class A
Common Stock or Class B Non-Voting Common Stock, as the case may be, pursuant to Section 4.3(h)(ii). The Corporation shall not,
however, be required to pay any such tax to the extent such tax is payable in respect of any transfer involved in the issuance and delivery
of shares of Class A Common Stock or Class B Non-Voting Common Stock, as applicable, upon a conversion pursuant to Section 4.3(h)(ii) in
a name other than that in which the shares of Class A Common Stock or Class B Non-Voting Common Stock, as applicable, so converted
were registered at the request of the registered holder.
(signature page follows)
IN WITNESS WHEREOF, the Corporation has caused
this Certificate of Amendment to be signed by its duly authorized officer this 29th day of September, 2023.
|
INSPIRATO INCORPORATED |
|
|
|
By: |
/s/ Robert Kaiden |
|
Name: Robert Kaiden |
|
Title: Chief Financial Officer |
Exhibit 99.1
Inspirato Completes $25 Million Investment from Capital One Ventures, Solidifying New Strategic Partnership
Denver, October 4, 2023 – Inspirato Incorporated
(“Inspirato”) (NASDAQ: ISPO), the innovative luxury travel subscription brand, today announced that it has closed its
$25 million senior secured convertible note issued by Inspirato to Capital One Ventures (the “investment”). On
September 26, 2023, Inspirato shareholders voted to approve the investment, subject to the finalization of a commercial
agreement between an affiliate of Capital One Ventures and Inspirato, which has been executed.
The investment provides broad operating
flexibility to Inspirato as it continues to deliver on its promise of providing remarkable luxury vacation for its members and guests.
“We’re incredibly excited to commence this strategic
partnership with Capital One Ventures,” said Eric Grosse, CEO, Inspirato. “The investment supports Inspirato’s
long-term profitability goals while ensuring our existing and future members continue to benefit from our first-class service and
certainty while experiencing the ultimate luxury vacations.”
This announcement is neither an offer to sell nor a solicitation of
an offer to buy any of these securities (including the shares of Inspirato common stock, if any, into which the convertible notes will
be convertible) and shall not constitute an offer, solicitation, or sale in any jurisdiction in which such offer, solicitation or sale
is unlawful.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning
of the federal securities laws. Forward-looking statements generally relate to future events or our future financial or operating performance.
In some cases, you can identify forward-looking statements because they contain words such as “believe,” “may,”
“will,” “estimate,” “potential,” “continue,” “anticipate,” “intend,”
“expect,” “could,” “would,” “project,” “forecast,” “plan,” “intend,”
“target,” or the negative of these words or other similar expressions that concern our expectations, strategy, priorities,
plans, or intentions. Forward-looking statements in this press release include, but are not limited to, statements regarding our expectations
relating to future operating results and financial position; guidance and growth prospects including those related to any new partnership
with Capital One; quotations of management; our expectations regarding the luxury travel market; anticipated future expenses and investments;
business strategy and plans; market growth; market position; and potential market opportunities. Our expectations and beliefs regarding
these matters may not materialize, and actual results in future periods are subject to risks and uncertainties, including changes in our
plans or assumptions, that could cause actual results to differ materially from those projected. These risks include our inability to
forecast our business due to our limited experience with our pricing models; the risk of downturns in the travel and hospitality industry;
our ability to compete effectively in an increasingly competitive market; our ability to sustain and manage our growth; and current market,
political, economic and business conditions and other risks detailed in our filings with the Securities and Exchange Commission (the “SEC”),
including in our Quarterly Report on Form 10-Q that will be filed with the SEC by August 9, 2023, and subsequent filings with
the SEC.
Past performance is not necessarily indicative of future results. If
any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by
these forward-looking statements. In addition, forward-looking statements reflect our expectations, plans, or forecasts of future events
and views as of the date of this press release. We anticipate that subsequent events and developments will cause our assessments to change.
All information provided in this release is as of the date hereof, and we undertake no duty to update this information unless required
by law. These forward-looking statements should not be relied upon as representing our assessment as of any date subsequent to the date
of this press release.
In addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of
this press release and while we believe such information forms a reasonable basis for such statements, such information may be limited
or incomplete, and such statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all
potentially available relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely
upon these statements.
About Inspirato
Inspirato (NASDAQ: ISPO) is a luxury travel subscription company
that provides exclusive access to a managed and controlled portfolio of curated vacation options, delivered through an innovative
model designed to ensure the service, certainty, and value that discerning customers demand. The Inspirato portfolio includes
branded luxury vacation homes, accommodations at five-star hotel and resort partners, and custom travel experiences. For more
information, visit www.inspirato.com and follow @inspirato on Instagram, Facebook, Twitter, and LinkedIn.
Inspirato Contacts:
Investor Relations:
ir@inspirato.com
Media Relations:
communications@inspirato.com
###
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Inspirato (NASDAQ:ISPO)
過去 株価チャート
から 5 2024 まで 6 2024
Inspirato (NASDAQ:ISPO)
過去 株価チャート
から 6 2023 まで 6 2024