Lincoln International completes IPO; charter, governance, and executive agreements filed

### 8-K - 8-K
8-K
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lincolninternational-closi.htm
8-K

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K 
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CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 19, 2026
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Lincoln International, Inc.
(Exact name of registrant as specified in its charter)
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Delaware | | 001-43306 | | 38-4224068 |
(State or other jurisdiction
of incorporation)
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File Number)
| | (IRS Employer
Identification Number)
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110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (312) 796-8550
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |

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| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)  |

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| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))  |

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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))  |

Securities registered pursuant to Section 12(b) of the Act:
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Title of each class | | Trading
Symbol(s)
| | Name of each exchange
on which registered
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Class A common stock, $0.00001 par value per share | | LCLN | | New York Stock Exchange |

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒

Item 1.01   Entry into a Material Definitive Agreement.
In connection with the initial public offering (the “ Offering ”) by Lincoln International, Inc. (the “ Company ”) and the selling stockholders of the Company’s Class A common stock, par value $0.00001 (the “ Common Stock ”), described in the prospectus (the “ Prospectus ”), dated May 19, 2026, filed with the Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the “ Securities Act ”), which is deemed to be part of the Registration Statement on Form S-1 (File No. 333-295322) (as amended, the “ Registration Statement ”), the following agreements were entered into:
• the Fourth Amended and Restated Limited Partnership Agreement of Lincoln International, LP, a Delaware limited partnership (“ OpCo ”), dated May 19, 2026, by and among the Company, OpCo and its Limited Partners (as defined therein) (the “ A&R LPA ”);
• the Tax Receivable Agreement, dated May 19, 2026, by and among the Company, OpCo, the TRA Representative (as defined therein) and the TRA Parties (as defined therein); and
• the Voting Agreement, dated May 19, 2026, by and among the Company and the Controlling Stockholders (as defined therein) (the “ Voting Agreement ”).
The A&R LPA, Tax Receivable Agreement and Voting Agreement are filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference. The terms of these agreements are substantially the same as the terms set forth in the forms of such agreements previously filed as exhibits to the Registration Statement and as described therein. Certain parties to certain of these agreements have various relationships with the Company. For further information, see “Certain Relationships and Related Party Transactions” in the Prospectus.

Item 3.02   Unregistered Sales of Equity Securities.
Simultaneously with the consummation of the Offering, the Company issued (i) 32,096,939 shares of Class B common stock of the Company, par value $0.00001 per share, to the Limited Partners other than the Controlling Partners (as defined in the A&R LPA), on a one-to-one basis equal to the number of common units of OpCo that each such Limited Partner owns, in exchange for nominal consideration and (ii) 48,860,500 shares of Class C common stock of the Company, par value $0.00001 per share, to the Controlling Partners, on a one-to-one basis equal to the number of common units of OpCo that each such Controlling Partner owns, in exchange for nominal consideration or the non-economic interest in OpCo indirectly held by such Controlling Partner, as applicable (the “ Exchange ”).
No underwriters were involved in the issuance and sale of the shares of Class B common stock or the issuance of the shares of Class C common stock pursuant to the Exchange. The shares of Class B common stock and Class C common stock were issued in reliance upon an exemption from registration pursuant to Section 4(a)(2) of the Securities Act on the basis that the transaction did not involve a public offering.

Item 3.03   Material Modification to Rights of Security Holders.
The information set forth under Item 5.03 below is incorporated by reference in this Item 3.03.

Item 5.02   Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Board of Directors

Effective May 19, 2026, Ms. M. Christie Smith and Mr. John W. Oleniczak were appointed to the board of directors of the Company. Ms. Smith will serve as a Class I director with a term expiring at the Company’s annual meeting of stockholders to be held in 2027, and Mr. John W. Oleniczak will serve as a Class II director with a term expiring at the Company’s annual meeting of stockholders to be held in 2028. Ms. Smith and Mr. Oleniczak will each serve on the Company’s audit committee and compensation committee, and Ms. Smith will serve on the Company’s nominating and corporate governance committee.

Biographical information regarding the directors, equity awards made to the directors, a description of the material terms of the directors’ annual compensation and relationships required to be disclosed pursuant to Item 404(a) of Regulation S-K have previously been reported by the Company in the Registration Statement.

Employment Agreements

On May 21, 2026, the Company entered into employment agreements with each of Robert Brown, its Chief Executive Officer, and Eric Malchow, its President and Global Head of M&A. A full copy of each of the foregoing arrangements is attached hereto as Exhibits 10.4 and 10.5, respectively, and incorporated herein by reference.

Item 5.03   Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 19, 2026, the Company’s Amended and Restated Certificate of Incorporation (the “ Charter ”), in the form previously filed as Exhibit 3.2 to the Registration Statement, and the Company’s Amended and Restated Bylaws (the “ Bylaws ”), in the form previously filed as Exhibit 3.4 to the Registration Statement, became effective. The Charter, among other things, provides that the Company’s authorized capital stock consists of 650,000,000 shares of Class A common stock, 250,000,000 shares of Class B common stock, 100,000,000 shares of Class C common stock and 5,000,000 shares of preferred stock, par value $0.00001 per share. A description of the Company’s capital stock, after giving effect to the adoption of the Charter and Bylaws, has previously been reported by the Company in the Registration Statement. The Charter and Bylaws are filed herewith as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.

Item 8.01   Other Events.
On May 21, 2026, the Company and the selling stockholders completed the Offering of 24,207,486 shares of the Company’s Class A common stock at a price to the public of $20.00 per share, which includes the exercise by the underwriters of their option to purchase an additional 3,157,498 shares of the Company’s Class A common stock. The gross proceeds to the Company from the initial public offering were $473.7 million, before deducting underwriting discounts and commissions. With the full exercise of the underwriters’ option to purchase the additional 3,157,498 shares of the Company’s Class A common stock, if all shares of Class B common stock and Class C common stock were to convert to shares of Class A common stock, the Company would have 102,015,412 shares of Class A common stock outstanding.

Item 9.01   Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. | | Description |
3.1 | | Amended and Restated Certificate of Incorporation of Lincoln International, Inc.
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3.2 | | Amended and Restated Bylaws of Lincoln International, Inc.
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10.1 | | Fourth Amended and Restated Limited Partnership Agreement of Lincoln International, LP, dated as of May 19, 2026
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10.2 | | Tax Receivable Agreement, dated as of May 19, 2026, by and among Lincoln International, Inc., Lincoln International, LP, the TRA Representative and the TRA Parties
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10.3 | | Voting Agreement, dated May 19, 2026, by and among the Company and the Controlling Stockholders
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10.4 | | Employment Agreement, dated May 21, 2026, by and among Lincoln International, Inc., Lincoln International LLC and Robert Brown
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10.5 | | Employment Agreement, dated May 21, 2026, by and among Lincoln International, Inc., Lincoln International LLC and Eric Malchow
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| LINCOLN INTERNATIONAL, INC. |
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Date: May 26, 2026 | By: | | /s/ Robert T. Brown |
| | | Robert T. Brown |
| | | Chief Executive Officer |

### EX-3.1 - EX-3.1
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exhibit31-8xk.htm
EX-3.1

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Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
LINCOLN INTERNATIONAL, INC.
Lincoln International, Inc. (the “ Corporation ”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “ DGCL ”), does hereby certify as follows:
1.    The name of the Corporation is Lincoln International, Inc. The Corporation was incorporated by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on April 6, 2022.
2.    This Amended and Restated Certificate of Incorporation (the “ Restated Certificate ”), which amends, restates and further integrates the certificate of incorporation of the Corporation as heretofore in effect, has been approved by the Board of Directors of the Corporation (the “ Board of Directors ”) in accordance with Sections 242 and 245 of the DGCL, and has been adopted by the written consent of the stockholders of the Corporation in accordance with Section 228 of the DGCL.
3.    The text of the certificate of incorporation of the Corporation, as heretofore amended, is hereby amended and restated by this Restated Certificate to read in its entirety as set forth in EXHIBIT A attached hereto.
IN WITNESS WHEREOF, Lincoln International, Inc. has caused this Restated Certificate to be signed by a duly authorized officer of the Corporation, on 19th of May, 2026.
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| Lincoln International, Inc. , a Delaware corporation
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| By: | /s/ Theodore J. Heidloff |
| Name: | Theodore J. Heidloff |
| Title: | Authorized Officer |

[Signature Page to Lincoln International, Inc. Certificate of Incorporation]

EXHIBIT A
ARTICLE I
The name of the corporation is Lincoln International, Inc. (the “ Corporation ”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, 19904, and the name of its registered agent at such address is Cogency Global Inc.
ARTICLE III
The nature of the business of the Corporation and the objects or purposes to be transacted, promoted or carried on by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ DGCL ”), including, without limitation, (i) investing in securities of Lincoln International, LP, a Delaware limited partnership, or any successor entities thereto (“ LILP ”) and any of its subsidiaries, (ii) exercising all rights, powers, privileges and other incidents of ownership or possession with respect to the Corporation’s assets, including managing, holding, selling and disposing of such assets and (iii) engaging in any other activities incidental or ancillary thereto.
ARTICLE IV
Section 4.1.     The total number of shares of all classes of capital stock which the Corporation will have authority to issue is 1,005,000,000 shares, consisting of (i) 1,000,000,000 shares of Common Stock, $0.00001 par value per share (the “ Common Stock ”), of which (a) 650,000,000 shares shall be Class A Common Stock (“ Class A Common Stock ”), (b) 250,000,000 shares shall be Class B Common Stock (“ Class B Common Stock ”), and (c) 100,000,000 shares shall be Class C Common Stock (“ Class C Common Stock ”) and (ii) 5,000,000 shares of Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”).
Section 4.2.     The number of authorized shares of any of the Class A Common Stock, Class B Common Stock, Class C Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) without a separate vote of any holders of shares of Class A Common Stock, Class B Common Stock, Class C Common Stock or Preferred Stock, unless a separate vote of any such holders is required pursuant to the terms of any Preferred Stock Designation, irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto).
Section 4.3.     Upon the effectiveness of this Restated Certificate (such time, the “ Effective Time ”), (i) each share of capital stock of the Corporation (the “ Prior Stock ”) authorized under the Corporation’s certificate of formation heretofore in effect issued and outstanding or held in treasury immediately prior to the Effective Time shall, automatically and

without further action by any shareholder, be reclassified as, and shall become, one (1) share of Class A Common Stock (the “ Reclassification ”), (ii) the shareholders registered on the Corporation’s books as owners of any shares of Prior Stock shall be registered on the Corporation’s books as the owners of shares of Class A Common Stock issued upon the Reclassification and (iii) any stock certificate that, immediately prior to the Effective Time, represented one or more shares of Prior Stock, shall, from and after the Effective Time, automatically and without the necessity of presenting the same for surrender or exchange, represent the same number of shares of Class A Common Stock.
Section 4.4.     Common Stock . The designations and the powers, preferences privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation are as follows:
(a)     General .    The rights, privileges, preferences and powers of shares of Class A Common Stock, Class B Common Stock and Class C Common Stock shall be as set forth in this Section 4.4. The voting, dividend, liquidation and other rights, powers and preferences of the holders of Common Stock are subject to, and qualified by, the rights, powers and preferences of any series of Preferred Stock as may be designated by the Board of Directors of the Corporation (the “ Board of Directors ”) and outstanding from time to time.
(b)     Voting .    Except as otherwise provided herein or expressly required by law,
(i)    each holder of Class A Common Stock, as such, shall have one (1) vote per share of Class A Common Stock held of record by such holder, on all matters submitted to a vote of the holders of Class A Common Stock, whether voting separately as a class or otherwise;
(ii)    each holder of Class B Common Stock, as such, shall have one (1) vote per share of Class B Common Stock held of record by such holder on all matters submitted to a vote of the holders of Class B Common Stock, whether voting separately as a class or otherwise; and
(iii)     each holder of Class C Common Stock, as such, shall have ten (10) votes per share of Class C Common Stock held of record by such holder, on all matters submitted to a vote of the holders of Class C Common Stock, whether voting separately as a class or otherwise. On the earlier of (a) the ten (10) year anniversary of the effective date of the Registration Statement and (b) the date on which the LILP Controlling Partners first cease to own, in the aggregate, at least twenty percent (20%) of the issued and outstanding shares of Common Stock (such earlier date, the “ Sunset Date ”), each outstanding share of Class C Common Stock shall automatically, without further action by the Corporation or any holder thereof, convert to one fully paid non-assessable share of Class B Common Stock.
provided , however , that except as otherwise required by law, the holders of Class A Common Stock, Class B Common Stock and Class C Common Stock, as such, shall not be entitled to vote on any amendment to this Restated Certificate (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more

other such series, to vote thereon pursuant to this Restated Certificate (including any Preferred Stock Designation) or the DGCL.
Except as otherwise required by law or this Restated Certificate, the holders of shares of Class A Common Stock, Class B Common Stock and Class C Common Stock shall vote together as a single class (or, if any holders of shares of Preferred Stock are entitled to vote together with the holders of Class A Common Stock, Class B Common Stock and Class C Common Stock, as a single class with such holders of Preferred Stock) on all matters submitted to a vote of stockholders of the Corporation.
(c)     Dividends . Subject to applicable law, any contractual restrictions and the rights and preferences of any holders of any outstanding series of Preferred Stock, dividends may be declared and paid on the Class A Common Stock out of the assets or funds of the Corporation that are by law available therefor, at such times and in such amounts as the Board of Directors in its discretion shall determine. Other than in connection with a dividend declared by the Board of Directors in connection with a “poison pill” or similar stockholder rights plan, dividends shall not be declared or paid on the Class B Common Stock or the Class C Common Stock and the holders of shares of Class B Common Stock and Class C Common Stock shall have no right to receive dividends in respect of such shares of Class B Common Stock or Class C Common Stock.
(d)     Subdivisions, Combinations or Reclassifications . If the Corporation in any manner subdivides, combines or reclassifies the outstanding shares of Class A Common Stock, Class B Common Stock or Class C Common Stock, the outstanding shares of the other such classes shall, concurrently therewith, be subdivided, combined, or reclassified in the same proportion and manner such that the same proportionate equity ownership among the holders of outstanding Class A Common Stock, Class B Common Stock and Class C Common Stock on the record date for such subdivision, combination or reclassification is preserved, unless different treatment of the shares of each such class is approved by (i) the holders of a majority of the outstanding Class A Common Stock, (ii) the holders of a majority of the outstanding Class B Common Stock and (iii) the holders of a majority of the outstanding Class C Common Stock, each of (i), (ii) and (iii) voting as separate classes. In the event of any such subdivision, combination or reclassification, the Corporation shall cause LILP to make corresponding changes to the Common Units to give effect to such subdivision, combination or reclassification, as applicable.
(e)     Liquidation . In the event of liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation and after making provisions for preferential and other amounts, if any, to which the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Class A Common Stock with respect to the distribution of assets of the Corporation upon such dissolution, liquidation or winding up shall be entitled, the remaining assets and funds of the Corporation available for distribution shall be divided among the holders of all outstanding shares of Common Stock such that (i) the holders of shares of Class B Common Stock and Class

C Common Stock, as such, shall be entitled to receive only $0.00001 per share of Class B Common Stock or Class C Common Stock and (ii) the holders of shares of Class A common stock will share ratably in any such remaining assets and funds in proportion to the number of shares of Class A Common Stock held by each such stockholder. A consolidation, reorganization or merger of the Corporation with any other Person or Persons (as defined below), a conversion of the Corporation, or a sale of all or substantially all of the assets of the Corporation, shall not be considered to be a dissolution, liquidation or winding up of the Corporation within the meaning of this Section 4.4(e).
(f)     Class B Common Stock.
(i)    (x) shares of Class B Common Stock may be issued only to, and registered only in the name of, the holders of Common Units (excluding the Corporation) and their respective Permitted Transferees in accordance with Section 4.4(h) (including all subsequent Permitted Transferees) (the holders of Common Units (excluding the Corporation) together with such Persons, collectively, the “ Permitted Class B Owners ”) and (y) the aggregate number of shares of Class B Common Stock at any time registered in the name of each such Permitted Class B Owner must be equal to the aggregate number of Common Units (as defined below) held of record at such time by such Permitted Class B Owner (less the number of shares of Class C Common Stock held by such Permitted Class B Owner, if any). Notwithstanding the foregoing, the Corporation may issue additional shares of Class B Common Stock in the event LILP issues additional Common Units (other than to the Corporation) following the date of the closing of the IPO.
(ii)    The Corporation shall, to the fullest extent permitted by law, undertake all necessary and appropriate action within its control to ensure that the number of shares of Class B Common Stock issued by the Corporation at any time to, or otherwise held of record by, any Permitted Class B Owner shall be equal to the aggregate number of Common Units held of record by such Permitted Class B Owner (less the number of shares of Class C Common Stock held by such Permitted Class B Owner, if any) in accordance with the terms of the LPA. In accordance with the foregoing, in the event that the Corporation contributes property (including cash) to LILP in accordance with Section 3.04(c) of the LPA and such contribution results in an adjustment of the Common Units held by the Permitted Class B Owners, the number of Class B Common Stock shall be correspondingly adjusted.
(iii)     In the event that there is a merger, consolidation, conversion, transfer, reorganization or Change of Control (as defined below) of the Corporation that was approved by the Board of Directors prior to such merger, consolidation, conversion, transfer, reorganization or Change of Control, without limiting the rights of the holders of Class B Common Stock to have their Common Units redeemed or exchanged in accordance with Section 10.09 of the LPA, the holders of shares of Class B Common Stock shall not be entitled to receive more than $0.00001 per share of Class B Common Stock, whether in the form of consideration for such shares or in the form of a distribution of the proceeds of a sale of all or substantially all of the assets of the Corporation with respect to such shares.

(g)     Class C Common Stock
(i)    (x) shares of Class C Common Stock may be issued only to, and registered only in the name of, the LILP Controlling Partners, an Estate Planning Vehicle (as defined in the LPA) of an LILP Controlling Partner or a Permitted Transferee in an estate planning Transfer by a Controlling Partner to a Permitted Transferee that the Controlling Partner controls and is approved in advance and in writing by the General Partner (collectively, the “ Permitted Class C Owners ”) and (y) the aggregate number of shares of Class C Common Stock at any time registered in the name of each such Permitted Class C Owner must be equal to the aggregate number of Common Units held of record at such time by such Permitted Class C Owner (less the number of shares of Class B Common Stock held by such Permitted Class C Owner, if any).
(ii)    The Corporation shall, to the fullest extent permitted by law, undertake all necessary and appropriate action within its control to ensure that the number of shares of Class C Common Stock issued by the Corporation at any time to, or otherwise held of record by, any Permitted Class C Owner shall be equal to the aggregate number of Common Units held of record by such Permitted Class C Owner (less the number of shares of Class B Common Stock held by such Permitted Class C Owner, if any) in accordance with the terms of the LPA. In accordance with the foregoing, in the event that the Corporation contributes property (including cash) to LILP in accordance with Section 3.04(c) of the LPA and such contribution results in an adjustment of the Common Units held by the Permitted Class C Owners, the number of Class C Common Stock shall be correspondingly adjusted.
(iii)     In the event that there is a merger, consolidation, conversion, transfer, reorganization or Change of Control (as defined below) of the Corporation that was approved by the Board of Directors prior to such merger, consolidation, conversion, transfer, reorganization or Change of Control, without limiting the rights of the holders of Class C Common Stock to have their Common Units redeemed or exchanged in accordance with Section 10.09 of the LPA, the holders of shares of Class C Common Stock shall not be entitled to receive more than $0.00001 per share of Class C Common Stock, whether in the form of consideration for such shares or in the form of a distribution of the proceeds of a sale of all or substantially all of the assets of the Corporation with respect to such shares.
(h)     Transfer of Class B Common Stock and Class C Common Stock; Conversion of Class C Common Stock
(i)    A holder of Class B Common Stock or Class C Common Stock may surrender and transfer shares of such Class B Common Stock or Class C Common Stock, as applicable, to the Corporation for cancellation for no consideration at any time. Following the surrender and transfer, or other acquisition, of any shares of Class B Common Stock or Class C Common Stock to or by the Corporation, the Corporation will take all actions necessary to cancel and retire such shares and such shares shall not be re-issued by the Corporation.
(ii)    Except as set forth in Section 4.4(h)(i), a holder of Class B Common Stock or Class C Common Stock may Transfer shares of Class B Common Stock or Class C Common

Stock only to a Permitted Transferee of such holder, and only if such holder also simultaneously Transfers an equal number of such holder’s Common Units to such Permitted Transferee in compliance with the LPA. The Transfer restrictions described in this Section 4.4(h)(ii) are referred to as the “ Restrictions ”.
(iii)    Any purported Transfer of shares of Class B Common Stock or Class C Common Stock in violation of the Restrictions shall be null and void ab initio. If, notwithstanding the Restrictions, a Person, voluntarily or involuntarily (including by way of a foreclosure), purportedly becomes or attempts to become, the purported owner (the “ Purported Owner ”) of shares of Class B Common Stock or Class C Common Stock, in violation of the Restrictions, then the Purported Owner shall not obtain any rights in, to or with respect to such shares of (x) Class B Common Stock or Class C Common Stock, as applicable, and the purported Transfer of the Class B Common Stock or Class C Common Stock, as applicable, to the Purported Owner shall not be recognized by the Corporation, the Corporation’s transfer agent (the “ Transfer Agent ”) or the Secretary of the Corporation and (y) each holder of such Class B Common Stock or Class C Common Stock, as applicable, shall, to the fullest extent permitted by law, automatically, without any further action on the part of the Corporation, the holder thereof, the Purported Owner or any other party, not be entitled to any voting rights with respect to such shares.
(iv)    Upon a determination by the Board of Directors that a Person has attempted or may attempt to Transfer or to acquire Class B Common Stock or Class C Common Stock in violation of the Restrictions, the Corporation may take such action as it deems necessary or advisable to refuse to give effect to such Transfer or acquisition on the books and records of the Corporation, including without limitation to cause the Transfer Agent or the Secretary of the Corporation, as applicable, to not record the Purported Owner as the record owner of the Class B Common Stock or Class C Common Stock, as applicable, on the books and records of the Corporation and to institute proceedings to enjoin or rescind any such Transfer or acquisition.
(v)     The Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind, by bylaw or otherwise, regulations and procedures not inconsistent with the provisions of this Section 4.4(h) for determining whether any Transfer or acquisition of shares of Class B Common Stock or Class C Common Stock would violate the Restrictions, and for the orderly application, administration and implementation of the provisions of this Section 4.4(h). Any such procedures and regulations shall be kept on file with the Secretary of the Corporation and with the Transfer Agent and shall be made available for inspection by and, upon written request shall be mailed to, any requesting holders of shares of stock of the Corporation.

(i)     CERTIFICATES
All certificates or book entries representing shares of Class B Common Stock and/or Class C Common Stock shall bear a legend substantially in the following form (or in such other form as the Board of Directors may determine):
THE SECURITIES REPRESENTED BY THIS [CERTIFICATE][BOOK ENTRY] ARE SUBJECT TO THE RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER) SET FORTH IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AS IT MAY BE AMENDED AND/OR RESTATED AND THE LIMITED PARTNERSHIP AGREEMENT OF LINCOLN INTERNATIONAL, LP AS IT MAY BE AMENDED AND/OR RESTATED (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AND SHALL BE PROVIDED FREE OF CHARGE TO ANY STOCKHOLDER MAKING A REQUEST THEREFOR).
A notice of such legend shall be given to holders of shares of Class B Common Stock and Class C Common Stock in accordance with applicable law.
(j)     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, such number of shares of Class A Common Stock that shall from time to time be sufficient to effect (i) the redemption or exchange of all outstanding Common Units held by holders of Class B Common Stock (along with Class B Common Stock) for shares of Class A Common Stock, and (ii) the redemption or exchange of all outstanding Common Units held by holders of Class C Common Stock (along with Class C Common Stock) for shares of Class A Common Stock, provided that nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the redemption or exchange of the Common Units by delivery of shares of Class A Common Stock that are held in the treasury of the Corporation.
The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class B Common Stock, such number of shares of Class B Common Stock that shall from time to time be sufficient to effect the conversion of all outstanding shares of Class C Common Stock for shares of Class B Common Stock.
The Corporation shall use its best efforts to cause to be reserved and kept available for issuance at all times a sufficient number of authorized but unissued shares of Class B Common Stock, such number of shares of Class B Common Stock that shall from time to time be sufficient to effect the issuance of shares of Class B Common Stock after the Effective Time to holders of newly issued Common Units for such consideration and for such corporate purposes as the Board of Directors may from time to time determine.

Section 4.5.     Preferred Stock .
Shares of Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed herein and in the resolution or resolutions providing for the creation and issuance of such series adopted by the Board of Directors as hereinafter provided.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing a certificate of designation relating thereto in accordance with the DGCL (a “ Certificate of Designation ”), to determine and fix the number of shares of such series and such voting powers, full or limited, or no voting powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, and to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolution or resolutions providing for the creation and issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law and this Restated Certificate (including any Certificate of Designation). Except as otherwise required by law, holders of any series of Preferred Stock shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Restated Certificate (including any Certificate of Designation).
The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE V
For the management of the business and for the conduct of the affairs of the Corporation it is further provided that:
Section 5.1.     Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the directors of the Corporation shall be classified with respect to the time for which they severally hold office into three classes, designated as Class I, Class II and Class III, with the classes as nearly equal in number as possible. The initial Class I directors shall serve for a term expiring at the first annual meeting of stockholders following the initial registration of the Corporation’s Class A Common Stock pursuant to the Securities Exchange Act of 1934, as amended; the initial Class II directors shall serve for a term expiring at the second annual meeting of stockholders following such registration; and the initial Class III directors shall serve for a term expiring at the third annual meeting of stockholders following such registration. At each annual meeting of stockholders of the Corporation beginning with the first annual meeting of stockholders following the Effective Time, subject to

any special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. Each director shall hold office until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director. The Board of Directors is authorized to designate members of the Board of Directors already in office as Class I, Class II and Class III.
Section 5.2.     Except as otherwise expressly provided by the DGCL or this Restated Certificate, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted from time to time by the Board of Directors.
Section 5.3.     Subject to the rights of the holders of any series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time either with or without cause by the affirmative vote of the holders of capital stock representing a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon; provided , however , that from and after the Sunset Date the Board of Directors or any individual director may be removed from office only for cause by the affirmative vote of the holders of capital stock representing at least sixty-six and two-thirds percent (66 2⁄3%) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon.
Section 5.4.     Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, except as otherwise provided by law, any vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative vote of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other than any directors elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office until the expiration of the term of the class to which such director shall have been appointed or until his or her earlier death, resignation, retirement, disqualification or removal.
Section 5.5.     Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Restated Certificate (including any Certificate of Designation). Notwithstanding anything to the contrary in this Article V, the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to Section 5.2, and the total number of directors constituting the whole Board of Directors shall be

automatically adjusted accordingly. Except as otherwise provided in the Certificate of Designation(s) in respect of one or more series of Preferred Stock, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such Certificate of Designation(s), the terms of office of all such additional directors elected by the holders of such series of Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.
Section 5.6.     In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal Bylaws of the Corporation. The stockholders may not adopt, amend, alter or repeal the Bylaws of the Corporation unless such action is approved, in addition to any other vote required by this Restated Certificate or applicable law, (a) prior to the Sunset Date, by the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, or (b) from and after the Sunset Date, by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class.
Section 5.7.     The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
ARTICLE VI
Section 6.1.     Prior to the Sunset Date, any action required or permitted to be taken by stockholders at an annual meeting or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents, setting forth the action so taken, are signed by the holders of outstanding shares of the Corporation representing not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all outstanding shares of the Corporation entitled to vote thereon were present and voted and such consent is delivered to us in accordance with applicable law. However, from and after the Sunset Date, any action required or permitted to be taken at any annual or special meeting of stockholders must be effected at a duly called annual or special meeting of such holders and may not be effected by consent in lieu of a meeting; provided , however , that any action required or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock. Any such action taken by written consent pursuant to this Article VI shall be delivered to the Corporation at its principal office.
Section 6.2.     Special meetings of stockholders of the Corporation may only be called in the manner provided in the Bylaws of the Corporation.

Section 6.3.     Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.
ARTICLE VII
No director or officer of the Corporation shall have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or hereafter may be amended. Any amendment, repeal or modification of this Article VII, or the adoption of any provision of the Restated Certificate inconsistent with this Article VII, shall not adversely affect any right or protection of a director or officer of the Corporation with respect to any act or omission occurring prior to such amendment, repeal, modification or adoption. If the DGCL is amended after approval by the stockholders of this Article VII to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended.
ARTICLE VIII
The Corporation shall have the power to provide rights to indemnification and advancement of expenses to its current and former officers, directors, employees and agents and to any person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE IX
Unless the Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery (the “ Chancery Court ”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL or the bylaws of the Corporation or this Restated Certificate (as either may be amended from time to time) or (iv) any action, suit or proceeding asserting a claim against the Corporation governed by the internal affairs doctrine; and (b) subject to the preceding provisions of this Article IX, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause or causes of action arising under the Securities Act of 1933, as amended, including all causes of action asserted against any defendant to such complaint. If any action the subject matter of which is within the scope of clause (a) of the immediately preceding sentence is filed in a court other than the courts in the State of Delaware (a “ Foreign Action ”) in the name of any stockholder, such stockholder shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the

State of Delaware in connection with any action brought in any such court to enforce the provisions of clause (a) of the immediately preceding sentence and (y) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article IX. This Article IX is intended to benefit and may be enforced by the Corporation, its officers and directors, the underwriters to any offering giving rise to such complaint, and any other professional or entity whose profession gives authority to a statement made by that person or entity and who has prepared or certified any part of the documents underlying the offering. Notwithstanding the foregoing, the provisions of this Article IX shall not apply to suits brought to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts of the United States have exclusive jurisdiction.
If any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article IX (including, without limitation, each portion of any paragraph of this Article IX containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
ARTICLE X
The Corporation reserves the right to amend, alter, change, adopt or repeal any provision contained in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation; provided , however , that from and after the Sunset Date, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required to amend or repeal, or adopt any provision of this Restated Certificate inconsistent with Sections 4.2, 4.3, 4.4(a)-(h) and 4.4(j) or with Articles V, VI, VII, VIII, X and XI; provided further , that any amendment (including by merger, consolidation conversion, transfer or otherwise) to this Restated Certificate (whether prior to or following the Sunset Date) that gives holders of the Class B Common Stock or Class C Common Stock (i) any rights to receive dividends (other than as set forth in the last sentence of Section 4.4(c) of Article IV) or any other kind of distribution, (ii) any right to convert into or be exchanged for shares of Class A Common Stock or (iii) any other economic rights (except for payments in cash in lieu of receipt of fractional stock) shall, in addition to the vote of the holders of shares of any class or series of capital stock of the Corporation required by law or by this Restated Certificate, also require the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Class A Common Stock voting separately as a class.

If any provision or provisions of this Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Restated Certificate (including, without limitation, each portion of any paragraph of this Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by applicable law, the provisions of this Restated Certificate (including, without limitation, each such portion of any paragraph of this Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.
ARTICLE XI
Section 11.1.     Section 203 of the DGCL . The Corporation expressly elects not to be governed by Section 203 of the DGCL and the restrictions and limitations set forth therein.
Section 11.2.     Interested Stockholder Transactions . Notwithstanding anything to the contrary set forth in this Restated Certificate, the Corporation shall not engage in any Business Combination (as defined below) at any point in time at which the Corporation’s Class A Common Stock, Class B Common Stock or Class C Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act (as defined below) with any Interested Stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an Interested Stockholder, unless:
(a)    prior to such time that such stockholder became an Interested Stockholder, the Board of Directors approved either the Business Combination or the transaction which resulted in such stockholder becoming an Interested Stockholder;
(b)    upon consummation of the transaction which resulted in the stockholder becoming an Interested Stockholder, the Interested Stockholder owned at least eighty-five percent (85%) of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the Interested Stockholder) those shares owned by (A) Persons who are Directors and also officers and (B) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
(c)    at or subsequent to such time that such stockholder became an Interested Stockholder, the Business Combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders by the affirmative vote of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the outstanding shares of capital stock of the Corporation which is not owned by such Interested Stockholder.

Section 11.3.     Definitions . As used in this Restated Certificate, the following terms shall have the following meaning:
(a)    “ Affiliate ” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person and, for purposes of the definition of Affiliate “control,” (including the terms “controlling,” “controlled by” and “under common control with,”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting stock, by contract, or otherwise. A Person who is the owner, of twenty percent (20%) or more of the outstanding voting stock of a corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such Person holds voting stock, in good faith and not for the purpose of circumventing this Article XI, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
(b)    “ Associate ”, when used to indicate a relationship with any Person, means: (i) any corporation, partnership, unincorporated association or other entity of which such Person is a Director, officer or partner or is, directly or indirectly, the owner of twenty percent (20%) or more of any class of shares of voting stock of the Corporation; (ii) any trust or other estate in which such Person has at least a twenty percent (20%) beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such Person, or any relative of such spouse, who has the same residence as such Person.
(c)    “ Business Combination ” means (i) any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (A) with the Interested Stockholder, or (B) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the Interested Stockholder and as a result of such merger or consolidation this Article XI is not applicable to the surviving entity; (ii) any sale, lease, exchange, mortgage, pledge, Transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the Interested Stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to ten percent (10%) or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding shares of capital stock of the Corporation; (iii) any transaction which results in the issuance or Transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the Interested Stockholder, except: (A) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the Interested Stockholder became such; (B) pursuant to a merger under Section 251(g) of the DGCL (or any successor provision thereto); (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for,

exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the Interested Stockholder became such; (D) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (E) any issuance or Transfer of stock by the Corporation; provided , however , that in no case under items (C) through (E) of this subsection shall there be an increase in the Interested Stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments); (iv) any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the Interested Stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the Interested Stockholder; or (v) or any receipt by the Interested Stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (i) through (iv) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
(d)    “ Change of Control ” means the occurrence of any of the following events: (1) any “Person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of shares of Class A Common Stock, Class B Common Stock, Class C Common Stock, Preferred Stock and/or any other class or classes of capital stock of the Corporation (if any) representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote; (2) the stockholders of the Corporation approve a plan of complete liquidation or dissolution of the Corporation or there is consummated a transaction or series of related transactions for the sale, lease, exchange or other disposition, directly or indirectly, by the Corporation of all or substantially all of the Corporation’s assets (including a sale of all or substantially all of the assets of LILP); (3) there is consummated a merger or consolidation of the Corporation with any other corporation or entity, and, immediately after the consummation of such merger or consolidation, the voting securities of the Corporation immediately prior to such merger or consolidation do not continue to represent, or are not converted into, voting securities representing more than fifty percent (50%) of the combined voting power of the outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a subsidiary, the ultimate parent thereof; or (4) the Corporation ceases to be the sole general partner of LILP; provided , however , that 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 (a) the beneficial owners of the Class A Common Stock, Class B Common Stock, Class C Common Stock, Preferred Stock and/or any other class or classes of capital stock of the Corporation immediately prior to such transaction or series of transactions

continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions or (b) in the case of the foregoing clauses (1) or (3), the LILP Controlling Partners are the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of shares of Class A Common Stock, Class B Common Stock, Class C Common Stock, Preferred Stock and/or any other class or classes of capital stock of the Corporation (if any) representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote (or, in the case of a transaction described in the foregoing clause (3), more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the Person resulting from such merger of consolidation or, if the surviving company is a subsidiary, the ultimate parent thereof).
(e)    “ Common Unit ” has the meaning set forth in the LPA.
(f)    “ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and any applicable rules and regulations promulgated thereunder, and any successor to such statute, rules or regulations.
(g)    “ Interested Stockholder ” means any Person (other than the Corporation and any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of fifteen percent (15%) or more of the outstanding voting stock of the Corporation, or (ii) is an Affiliate of the Corporation and was the owner of fifteen percent (15%) or more of the outstanding voting stock of the Corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such Person is an Interested Stockholder, and the Affiliates and Associates of such Person. Notwithstanding anything in this Article XI to the contrary, the term “Interested Stockholder” shall not include the LILP Controlling Partners. For the purpose of determining whether a Person is an Interested Stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the Person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(h)    “ IPO ” means the sale of shares of Class A Common Stock to the public in a firm-commitment underwritten initial public offering, pursuant to an effective registration statement under the Securities Act.
(i)    “ LILP Controlling Partners ” means Lawrence James Lawson III, Robert Bruce Barr, Robert Todd Brown and Eric Dennis Malchow.
(j)    “ LPA ” means that certain Fourth Amended and Restated Limited Partnership Agreement of Lincoln International, LP, dated as of the effective date of the Registration Statement, as such agreement may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time.

(k)     “ owner ,” including the terms “own” and “owned,” when used with respect to any stock, means, for purposes of this Article XI, a Person that individually or with or through any of its Affiliates or Associates:
(i) beneficially owns such stock, directly or indirectly;
(ii) has (A) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided , however , that a Person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such Person or any of such Person’s Affiliates or Associates until such tendered stock is accepted for purchase or exchange; or (B) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided , however , that a Person shall not be deemed the owner of any stock because of such Person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more Persons; or
(iii) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in clause (B) of subsection (ii) above), or disposing of such stock with any other person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, such stock.
(l)    “ Permitted Transfer ” means a transfer or assignment of Class B Common Stock or Class C Common Stock, as applicable, (or any legal or beneficial interest in such shares) by the holder thereof to any transferee only to the extent permitted by the LPA; provided that any share of Class C Common Stock subject to a Permitted Transfer to a transferee that is not a Permitted Class C Owner, or if such Permitted Transferee ceases to be a Permitted Class C Owner, shall automatically convert into a share of Class B Common Stock without further action by the Corporation, the transferring holder or the transferee.
(m)    “ Permitted Transferee ” means the recipient of any transfer or assignment of Class B Common Stock or Class C Common Stock (or any legal or beneficial interest in such shares) in connection with a Permitted Transfer.
(n)    “ Person ” means any individual, corporation, partnership, limited liability company, unincorporated association or other entity.
(o)    “ Registration Statement ” means the Registration Statement on Form S-1 (File no. 333-295322) pursuant to which the Corporation sold shares of its Class A Common stock to the public in the IPO.

(p)     “ Securities Act ” means the U.S. Securities Act of 1933, as amended, and applicable rules and regulations promulgated thereunder, and any successor to such statute, rules or regulations.
(q)    “ stock ” means, for purposes of this Article XI, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
(r)    “ Transfer ” (and, with a correlative meaning, “Transferring”) means any sale, transfer, assignment, redemption or other disposition of (whether directly or indirectly, whether with or without consideration and whether voluntarily or involuntarily or by operation of law) (a) any interest (legal or beneficial) in any shares of capital of stock of the Corporation or (b) any equity or other interest (legal or beneficial) in any stockholder if substantially all of the assets of such stockholder consist solely of shares of capital stock of the Corporation; provided , however , that the following shall not be considered a Transfer:
(i) the granting of a revocable proxy to officers or directors of the Corporation at the request of the Board of Directors in connection with (i) actions to be taken at an annual or special meeting of stockholders, or (ii) any other action of the stockholders permitted by this Restated Certificate;
(ii) the pledge of shares of Class B Common Stock or Class C Common Stock by a stockholder that creates a mere security interest in such shares pursuant to a bona fide loan or indebtedness transaction for so long as such stockholder continues to exercise voting control over such pledged shares; provided , however , that a foreclosure on such shares or other similar action by the pledgee shall constitute a Transfer unless such foreclosure or similar action qualifies as a Permitted Transfer at such time; or
(iii) entering into a support, voting, tender or similar agreement or arrangement (with or without granting a proxy) or tendering any shares in any tender or exchange offer for all of the outstanding shares of Class A Common Stock, Class C Common Stock and Class B Common Stock, in each case, in connection with a Change of Control transaction, sale of all or substantially all assets, or any merger, consolidation or other business combination involving the Corporation, whether effectuated through one transaction or series of related transactions, that, in each case, has been approved by the Board of Directors.
(s)    “ voting stock ” means stock of any class or series entitled to vote generally in the election of Directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity. Every reference in this Article XI to a percentage or proportion of voting stock shall refer to such percentage or other proportion of the votes of such voting stock.

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EX-3.2
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exhibit32-8xk.htm
EX-3.2

Document
Exhibit 3.2

Amended and Restated Bylaws of
Lincoln International, Inc.
(a Delaware corporation)
as of May 19, 2026

Table of Contents
| | | | | | | | | | | |
| | | Page |
| | | |
Article I - Corporate Offices | 3 |
| | | |
| 1.1 | Registered Office | 3 |
| 1.2 | Other Offices | 3 |
| | | |
Article II - Meetings of Stockholders | 3 |
| | | |
| 2.1 | Place of Meetings | 3 |
| 2.2 | Annual Meeting | 3 |
| 2.3 | Special Meeting | 3 |
| 2.4 | Notice of Business to be Brought before a Meeting. | 3 |
| 2.5 | Notice of Nominations for Election to the Board of Directors. | 8 |
| 2.6 | Additional Requirements for Valid Nomination of Candidates to Serve as Director and, if Elected, to be Seated as Directors. | 11 |
| 2.3 | Notice of Stockholders’ Meetings | 13 |
| 2.7 | Quorum | 13 |
| 2.9 | Adjourned Meeting; Notice | 14 |
| 2.10 | Conduct of Business | 14 |
| 2.11 | Voting | 15 |
| 2.12 | Record Date for Stockholder Meetings and Other Purposes | 15 |
| 2.13 | Proxies | 16 |
| 2.14 | List of Stockholders Entitled to Vote | 16 |
| 2.15 | Inspectors of Election. | 16 |
| 2.16 | Delivery to the Corporation. | 17 |
| | | |
Article III - Directors | 17 |
| | | |
| 3.1 | Powers | 17 |
| 3.2 | Number of Directors | 17 |
| 3.3 | Election, Qualification and Term of Office of Directors | 18 |
| 3.4 | Resignation and Vacancies | 18 |
| 3.5 | Place of Meetings; Meetings by Telephone | 18 |
| 3.6 | Regular Meetings | 18 |
| 3.7 | Special Meetings; Notice | 18 |
| 3.8 | Quorum | 19 |
| 3.9 | Board Action without a Meeting | 19 |
| 3.10 | Fees and Compensation of Directors | 19 |
| | | |
Article IV - Committees | 20 |
| | | |
| 4.1 | Committees of Directors | 20 |
| 4.2 | Committee Minutes | 20 |
| 4.3 | Meetings and Actions of Committees | 20 |
| 4.4 | Subcommittees. | 21 |
| | | |
Article V - Officers | 21 |
| | | |
| 5.1 | Officers | 21 |
| 5.2 | Appointment of Officers | 21 |

i

TABLE OF CONTENTS
(continued)

| | | | | | | | | | | |
| | | Page |
| | | |
| 5.3 | Subordinate Officers | 21 |
| 5.4 | Removal and Resignation of Officers | 21 |
| 5.5 | Vacancies in Offices | 22 |
| 5.6 | Representation of Shares of Other Corporations | 22 |
| 5.7 | Authority and Duties of Officers | 22 |
| 5.8 | Compensation. | 22 |
| | | |
Article VI - Records | 22 |
| | | |
Article VII - General Matters | 23 |
| | | |
| 7.1 | Execution of Corporate Contracts and Instruments | 23 |
| 7.2 | Stock Certificates | 23 |
| 7.3 | Special Designation of Certificates. | 23 |
| 7.4 | Lost Certificates | 24 |
| 7.5 | Shares Without Certificates | 24 |
| 7.6 | Construction; Definitions | 24 |
| 7.7 | Dividends | 24 |
| 7.8 | Fiscal Year | 24 |
| 7.9 | Seal | 24 |
| 7.10 | Transfer of Stock | 24 |
| 7.11 | Stock Transfer Agreements | 25 |
| 7.12 | Registered Stockholders | 25 |
| 7.13 | Waiver of Notice | 25 |
| | | |
Article VIII - Notice | 25 |
| | | |
| 8.1 | Delivery of Notice; Notice by Electronic Transmission | 25 |
| | | |
Article IX - Indemnification | 26 |
| | | |
| 9.1 | Indemnification of Directors and Officers | 26 |
| 9.2 | Indemnification of Others | 27 |
| 9.3 | Prepayment of Expenses | 27 |
| 9.4 | Determination; Claim | 27 |
| 9.5 | Non-Exclusivity of Rights | 27 |
| 9.6 | Insurance | 28 |
| 9.7 | Other Indemnification | 28 |
| 9.8 | Continuation of Indemnification | 28 |
| 9.9 | Amendment or Repeal; Interpretation | 28 |
| | | |
Article X - Amendments | 29 |
| | | |
Article XI - Definitions | 29 |

ii

Amended and Restated Bylaws of
Lincoln International, Inc.
| | |
|

Article I - Corporate Offices
1.1     Registered Office .
The address of the registered office of Lincoln International, Inc. (the “ Corporation ”) in the State of Delaware, and the name of its registered agent at such address, shall be as set forth in the Corporation’s certificate of incorporation, as the same may be amended and/or restated from time to time (the “ Certificate of Incorporation ”).
1.2     Other Offices .
The Corporation may have additional offices at any place or places, within or outside the State of Delaware, as the Corporation’s board of directors (the “ Board ”) may from time to time establish or as the business of the Corporation may require.
Article II - Meetings of Stockholders
2.1     Place of Meetings .
Meetings of stockholders shall be held at any place within or outside the State of Delaware, designated by the Board. The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “ DGCL ”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office.
2.2     Annual Meeting .
The Board shall designate the date and time of the annual meeting of stockholders. At the annual meeting of stockholders, directors shall be elected and other proper business properly brought before the meeting in accordance with Section 2.4 of these bylaws may be transacted. The Board may postpone, reschedule or cancel any previously scheduled annual meeting of stockholders.
2.3     Special Meeting .  Special meetings of stockholders for any purpose or purposes may be called only (i) by the Chairman of the Board, (ii) by the Board of Directors, pursuant to a resolution approved by a majority of the entire Board of Directors, or, (iii) prior to the Sunset Date (as defined in the Certificate of Incorporation), by the Secretary (or other officer or the Board of Directors) at the request of stockholders owning at least a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon, and shall not be called by any other person or persons.
2.4     Notice of Business to be Brought before a Meeting . (a)    At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in a notice of meeting given by or at the direction of the Board of Directors, (ii) if not specified in a notice of meeting,

otherwise brought before the meeting by or at the direction of the Board of Directors or the Chairman of the Board or (iii) otherwise properly brought before the meeting by a stockholder present in person who (A) (1) was a record owner of shares of capital stock of the Corporation both at the time of giving the notice provided for in this Section 2.4 and at the time of the meeting, (2) is entitled to vote at the meeting, and (3) has complied with this Section 2.4 in all applicable respects or (B) properly made such proposal in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so amended and inclusive of such rules and regulations, the “ Exchange Act ”). The foregoing clause (iii) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. For purposes of this Section 2.4, “present in person” shall mean that the stockholder proposing that the business be brought before the annual meeting of the Corporation, or a qualified representative of such proposing stockholder, appear at such annual meeting, either in person or by means of remote communication. A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at or before the meeting of stockholders in writing or by electronic transmission. Stockholders seeking to nominate persons for election to the Board of Directors must comply with Section 2.5 and Section 2.6 and this Section 2.4 shall not be applicable to nominations except as expressly provided in Section 2.5 and Section 2.6.
(b)    Without qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in writing and in proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.4. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of the preceding year’s annual meeting which, in the case of the first annual meeting of stockholders following the closing of the Corporation’s initial underwritten public offering of Class A common stock, the date of the preceding year’s annual meeting shall be deemed to be June 1, 2026; provided, however , that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not more than the hundred twentieth (120 th ) day prior to such annual meeting and not later than (i) the ninetieth (90 th ) day prior to such annual meeting or, (ii) if later, the tenth (10 th ) day following the day on which public disclosure of the date of such annual meeting was first made by the Corporation (such notice within such time periods, “ Timely Notice ”). In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of Timely Notice as described above.
(c)    To be in proper form for purposes of this Section 2.4, a stockholder’s notice to the Secretary shall set forth:
(i)    As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation’s books and records), (B) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person, except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such Proposing Person has a right to acquire

beneficial ownership at any time in the future, (C) the date or dates such shares were acquired, (D) the investment intent of such acquisition and (E) any pledge by such Proposing Person with respect to any of such shares (the disclosures to be made pursuant to the foregoing clauses (A) through (E) are referred to as “ Stockholder Information ”);
(ii)    As to each Proposing Person,
(A)    the material terms and conditions of any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) or a “put equivalent position” (as such term is defined in Rule 16a-1(h) under the Exchange Act) or other derivative or synthetic arrangement in respect of any class or series of shares of capital stock of the Corporation (“ Synthetic Equity Position ”) that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person, including, without limitation,
(1)    any option, warrant, convertible security, stock appreciation right, future or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of capital stock of the Corporation or with a value derived in whole or in part from the value of any shares of any class or series of shares of capital stock of the Corporation,
(2)    any derivative or synthetic arrangement having the characteristics of a long position or a short position in any class or series of shares of capital stock of the Corporation, including, without limitation, a stock loan transaction, a stock borrow transaction, or a share repurchase transaction or
(3)     any contract, derivative, swap or other transaction or series of transactions designed to
(x)    produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of capital stock of the Corporation,
(y)    mitigate any loss relating to, reduce the economic risk (of ownership or otherwise) of, or manage the risk of share price decrease in, any class or series of shares of capital stock of the Corporation, or
(z)    increase or decrease the voting power in respect of any class or series of shares of capital stock of the Corporation held or maintained by, held for the benefit of, or involving such Proposing Person,
including, without limitation, due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of capital stock of the Corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of capital stock of the Corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the holder thereof may have entered into

transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the price or value of any shares of any class or series of shares of capital stock of the Corporation;
provided that , for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underly any Synthetic Equity Position that is, directly or indirectly, held or maintained by, held for the benefit of, or involving such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer,
(B)    a description of any agreement, arrangement or understanding with respect to any rights to dividends on the shares of any class or series of shares of capital stock of the Corporation owned beneficially by such Proposing Person that are separated or separable pursuant to such agreement, arrangement or understanding from the underlying shares of capital stock of the Corporation,
(C)    any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation,
(D)    any other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand,
(E)    any direct or indirect material interest in any material contract or agreement of such Proposing Person with the Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement),
(F)    any proportionate interest in shares of capital stock of the Corporation or a Synthetic Equity Position held, directly or indirectly, by a general or limited partnership, limited liability company or similar entity in which any such Proposing Person (1) is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership or (2) is the manager, managing member or, directly or indirectly, beneficially owns an interest in the manager or managing member of such limited liability company or similar entity,

(G)    a representation that such Proposing Person intends or is part of a group that intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or otherwise solicit proxies or votes from stockholders in support of such proposal and
(H)    any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act,
(the disclosures to be made pursuant to the foregoing clauses (A) through (H) are referred to as “ Disclosable Interests ”); provided , however , that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these Bylaws on behalf of a beneficial owner; and
(iii)    As to each item of business that the stockholder proposes to bring before the annual meeting, (A) a brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business of each Proposing Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment), (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other person or entity (including their names) in connection with the proposal of such business by such stockholder, and (D) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act; provided , however , that the disclosures required by this paragraph (iii) shall not include any disclosures with respect to any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these Bylaws on behalf of a beneficial owner.
For purposes of this Section 2.4, the term “ Proposing Person ” shall mean (i) the stockholder providing the notice of business proposed to be brought before an annual meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the annual meeting is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(d)    The Board of Directors may request that any Proposing Person furnish such additional information as may be reasonably required by the Board of Directors. Such Proposing Person shall provide such additional information within ten (10) days after it has been requested by the Board of Directors.

(e)    A Proposing Person shall update and supplement its notice to the Corporation of its intent to propose business at an annual meeting, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.4 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(f)    Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the meeting in accordance with this Section 2.4. The presiding officer of the meeting (or, in advance of any meeting of stockholders, the Board of Directors or an authorized committee thereof) shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 2.4, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
(g)    This Section 2.4 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s proxy statement. In addition to the requirements of this Section 2.4 with respect to any business proposed to be brought before an annual meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in this Section 2.4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(h)    For purposes of these Bylaws, “ public disclosure ” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
2.5     Notice of Nominations for Election to the Board of Directors . (a)    Nominations of any person for election to the Board of Directors at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting) may be made at such meeting only (i) by or at the direction of the Board of Directors, including by any committee or persons authorized to do so by the Board of Directors or these bylaws, or (ii) by a stockholder present in person who (A) was a record owner of shares of capital stock of the Corporation both at the time of giving the notice provided for in this Section 2.5 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 2.5 and Section 2.6 as to such notice and nomination. For purposes of this Section 2.5, “present in person” shall mean that the

stockholder nominating any person for election to the Board of Directors at the meeting of the Corporation, or a qualified representative of such stockholder, appear at such meeting, either in person or by means of remote communication. A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at or before the meeting of stockholders in writing or by electronic transmission. The foregoing clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board of Directors at an annual meeting or special meeting.
(b)    (i)    Without qualification, for a stockholder to make any nomination of a person or persons for election to the Board of Directors at an annual meeting, the stockholder must (1) provide Timely Notice (as defined in Section 2.4) thereof in writing and in proper form to the Secretary of the Corporation, (2) provide the information, agreements and questionnaires with respect to each Nominating Person (as defined below) and its candidate for nomination as required to be set forth by this Section 2.5 and Section 2.6 and (3) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5 and Section 2.6 .
(ii)    Without qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling a special meeting, then for a stockholder to make any nomination of a person or persons for election to the Board of Directors at a special meeting, the stockholder must (A) provide timely notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, (B) provide the information with respect to each Nominating Person and its candidate for nomination as required by this Section 2.5 and Section 2.6 and (C) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. To be timely, a stockholder’s notice for nominations to be made at a special meeting must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the one hundred twentieth (120 th ) day prior to such special meeting and not later than the ninetieth (90 th ) day prior to such special meeting or, if later, the tenth (10 th ) day following the day on which public disclosure (as defined in Section 2.4) of the date of such special meeting was first made (such notice within such time periods, “ Special Meeting Timely Notice ”).
(iii)    In no event shall any adjournment or postponement of an annual meeting or special meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iv)    In no event may a Nominating Person deliver a notice of nomination, as applicable, with respect to a greater number of director candidates than are subject to election by stockholders at the applicable meeting. If the Corporation shall, subsequent to such notice, increase the number of directors subject to election at the meeting, such notice as to any additional nominees shall be due on the later of (i) the conclusion of the time period for Timely Notice or Special Meeting Timely Notice, as applicable, or (ii) the tenth day following the date of public disclosure (as defined in Section 2.4) of such increase.

(c)    To be in proper form for purposes of this Section 2.5, a stockholder’s notice to the Secretary shall set forth:
(i)    As to each Nominating Person, the Stockholder Information (as defined in Section 2.4(c)(i), except that for purposes of this Section 2.5 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(c)(i));
(ii)    As to each Nominating Person,  any Disclosable Interests (as defined in Section 2.4(c)(ii), except that for purposes of this Section 2.5 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(c)(ii) and the disclosure with respect to the business to be brought before the meeting in Section 2.4(c)(ii) shall be made with respect to the nomination proposed to be made at the meeting); and provided that, in lieu of including the information set forth in Section 2.4(c)(ii)(G), the Nominating Person’s notice for purposes of this Section 2.5 shall include a representation as to whether the Nominating Person intends or is part of a group that intends to deliver a proxy statement and solicit the holders of shares representing at least 67% of the voting power of shares entitled to vote on the election of directors in support of director nominees other than the Corporation’s nominees in accordance with Rule 14a-19 promulgated under the Exchange Act; and
(iii)    As to each candidate whom a Nominating Person proposes to nominate for election as a director, (A) all information relating to such candidate for nomination that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such candidate’s written consent to being named in a proxy statement and accompanying proxy card relating to the Corporation’s next meeting of stockholders at which directors are to be elected and to serving as a director for a full term if elected), (B) a description of any direct or indirect material interest in any material contract or agreement between or among any Nominating Person, on the one hand, and each candidate for nomination or his or her respective associates (as defined in Rule 14a-1(a) promulgated under the Exchange Act) or any other participants (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) in such solicitation, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the candidate for nomination were a director or executive officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as “ Nominee Information ”), and (C) a completed and signed questionnaire, representation and agreement as provided in Section 2.6(a).
For purposes of this Section 2.5, the term “ Nominating Person ” shall mean (i) the stockholder providing the notice of the nomination proposed to be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(d)    The Board of Directors may request that any Nominating Person furnish such additional information as may be reasonably required by the Board of Directors. Such Nominating Person shall provide such additional information within ten (10) days after it has been requested by the Board of Directors.

(e)    A stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice or the materials delivered pursuant to this Section 2.5, as applicable, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.5 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any nomination, including by changing or adding nominees, or to submit any new nomination, or submit any new proposal, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(f)    In addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Nominating Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations. Notwithstanding the foregoing provisions of this Section 2.5, unless otherwise required by law, (i) no Nominating Person shall solicit proxies in support of director nominees other than the Corporation’s nominees unless such Nominating Person has, or is part of a group that has, complied with Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including the provision to the Corporation of notices required thereunder, in accordance with the time frames required in this Section 2.5 or by Rule 14a-19 promulgated under the Exchange Act, as applicable, and (ii) if (1) any Nominating Person provides notice in accordance with Rule 14a-19(b) promulgated under the Exchange Act and (2) (x) such notice in accordance with Rule 14a-19(b) is not provided within the time period for Timely Notice or Special Meeting Timely Notice, as applicable, (y) such Nominating Person subsequently fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) promulgated under the Exchange Act or (z) such Nominating Person fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such Nominating Person has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the following sentence, then the nomination of such Nominating Person’s proposed nominees shall be disregarded, notwithstanding that each such nominee is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any meeting of stockholders (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded). If any Nominating Person provides notice in accordance with Rule 14a-19(b) promulgated under the Exchange Act, such Nominating Person shall deliver to the Corporation, no later than seven (7) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
2.6     Additional Requirements for Valid Nomination of Candidates to Serve as Director and, if Elected, to be Seated as Directors . (a)    To be eligible to be a candidate for election as a director of the Corporation at an annual or special meeting, a candidate must be nominated in the manner prescribed in Section 2.5 and the candidate for nomination, whether nominated by the Board of Directors or by a

stockholder of record, must have previously delivered, to the Secretary at the principal executive offices of the Corporation, (i) a completed written questionnaire (in the form provided by the Corporation within ten (10) days upon written request of any stockholder of record therefor) with respect to the background, qualifications, stock ownership and independence of such proposed nominee and (ii) a written representation and agreement (in the form provided by the Corporation within ten (10) days upon written request of any stockholder of record therefor) that such candidate for nomination (A) is not and, if elected as a director during his or her term of office, will not become a party to (1) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “ Voting Commitment ”) or (2) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply, if elected as a director of the Corporation, with such proposed nominee’s fiduciary duties under applicable law, (B) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation or reimbursement for service as a director that has not been disclosed therein or to the Corporation, (C) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect), and (D) if elected as a director of the Corporation, intends to serve the entire term until the next meeting at which such candidate would face re-election.
(b)    The Board of Directors may also require any proposed candidate for nomination as a director to furnish such other information related to such candidate’s eligibility or qualification to serve as a director as may reasonably be requested by the Board of Directors in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon. Without limiting the generality of the foregoing, the Board of Directors may request such other information in order for the Board of Directors to determine the eligibility of such candidate for nomination to be an independent director of the Corporation or to comply with the director qualification standards and additional selection criteria in accordance with the Corporation’s Corporate Governance Guidelines. Such other information shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the request by the Board of Directors has been delivered to, or mailed and received by, the Nominating Person.
(c)    A candidate for nomination as a director shall further update and supplement the materials delivered pursuant to this Section 2.6, if necessary, so that the information provided or required to be provided pursuant to this Section 2.6 shall be true and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder

who has previously submitted notice hereunder to amend or update any nomination or to submit any new proposal, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(d)    No candidate nominated pursuant to Section 2.5(a)(ii) shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place such candidate’s name in nomination has complied with Section 2.5 and this Section 2.6, as applicable. The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with Section 2.5 and this Section 2.6, and if he or she should so determine, he or she shall so declare such determination to the meeting, the defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect.
(e)    Notwithstanding anything in these Bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Corporation unless nominated in accordance with Section 2.5 and this Section 2.6 and elected as a director.
2.7     Stockholder Action by Written Consent .
Stockholders may not take action by written consent without a meeting except as may be permitted by the Certificate of Incorporation.
2.8     Notice of Stockholders’ Meetings .
Unless otherwise provided by law, the Certificate of Incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given in accordance with Section 8.1 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any, date and time of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting of stockholders, the purpose or purposes for which such meeting is called.
2.9     Quorum .
Unless otherwise provided by law, the rules of any stock exchange upon which the Corporation’s securities are listed, the Certificate of Incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders. Notwithstanding the foregoing, where a separate vote by a class or series or classes or series is required, the holders of a majority in voting power of the outstanding shares of such class or series or classes or series, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on that matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, a quorum is not present or represented at any meeting of stockholders, then either (i) the person presiding over the meeting or (ii) a majority in voting power of the stockholders entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by proxy, shall have power to recess the meeting or adjourn the meeting from time to time in the manner provided in Section 2.10 of these bylaws until a quorum is present or

represented. At any recessed or adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.
2.10     Adjourned Meeting; Notice .
When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken or are provided in any other manner permitted by the DGCL. At any adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such meeting as of the record date so fixed for notice of such adjourned meeting.
2.11     Conduct of Business .
The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures (which need not be in writing) and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present (including, without limitation, rules and procedures for removal of disruptive persons from the meeting); (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting (including, without limitation, determinations with respect to the administration and/or interpretation of any of the rules, regulations or procedures of the meeting, whether adopted by the Board or prescribed by the person presiding over the meeting), shall, if the facts warrant, determine and declare to the meeting that a matter of business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

2.12     Voting .
Except as may be otherwise provided in the Certificate of Incorporation, these bylaws or the DGCL, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one (1) vote for each share of capital stock held by such stockholder that has voting power upon the manner in question.
Unless a different or minimum vote is required by the Certificate of Incorporation, at all duly called or convened meetings of stockholders at which a quorum is present, for the election of directors, a plurality of the votes cast shall be sufficient to elect a director. Except as otherwise provided by the Certificate of Incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities, in which case such different or minimum vote shall be the applicable vote on the matter, each other matter presented to the stockholders at a duly called or convened meeting at which a quorum is present shall be decided by the affirmative vote of the holders of a majority of the votes cast (excluding abstentions and broker non-votes) on such matter.
2.13     Record Date for Stockholder Meetings and Other Purposes . 
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) days nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is first given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting; and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of capital stock, or for the purposes of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Unless otherwise restricted by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express consent to corporate action without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the

record date is adopted by the Board, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date for determining stockholders entitled to express consent to corporate action without a meeting is fixed by the Board, (i) when no prior action of the Board is required by law, the record date for such purpose shall be the first date on which a signed consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action by the Board is required by law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.
2.14     Proxies .
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder, in any manner provided under applicable law, by proxy authorized by an instrument in writing or by a transmission permitted by law, including Rule 14a-19 promulgated under the Exchange Act, filed in accordance with the procedure established for the meeting, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of a proxy is coupled with an interest sufficient in law to support an irrevocable power and that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A proxy may be in the form of an electronic transmission which sets forth or is submitted with information from which it can be determined that the transmission was authorized by the stockholder.
Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board.
2.15     List of Stockholders Entitled to Vote .
The Corporation may, and shall if required by law, prepare, no later than the tenth day before each meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of ten (10) days ending on the day before the meeting date: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the Corporation’s principal executive office. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.15 or to vote in person or by proxy at any meeting of stockholders.
2.16     Inspectors of Election.
Before any meeting of stockholders, the Corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report thereof. The Corporation may

designate one or more persons as alternate inspectors to replace any inspector who fails to act. If any person appointed as inspector or any alternate fails to appear or fails or refuses to act, then the person presiding over the meeting shall appoint a person to fill that vacancy.
Such inspectors shall:
(i)    determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting and the validity of any proxies and ballots;
(ii)    count all votes or ballots;
(iii)    count and tabulate all votes;
(iv)    determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s); and
(v)    certify its or their determination of the number of shares represented at the meeting and its or their count of all votes and ballots.
Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspection with strict impartiality and according to the best of such inspector’s ability. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. The inspectors of election may appoint such persons to assist them in performing their duties as they determine.
2.17     Delivery to the Corporation.
Whenever this Article II requires one or more persons (including a record or beneficial owner of stock) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested, and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered. For the avoidance of doubt, the Corporation expressly opts out of Section 116 of the DGCL with respect to the delivery of information and documents to the Corporation required by this Article II.
Article III - Directors
3.1     Powers .
Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board.
3.2     Number of Directors .
Subject to the Certificate of Incorporation, the total number of directors constituting the Board shall be determined from time to time by resolution of the Board. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

3.3     Election, Qualification and Term of Office of Directors .
Except as provided in Section 3.4 of these bylaws, and subject to the Certificate of Incorporation, each director, including a director elected to fill a vacancy or newly created directorship, shall hold office until the expiration of the term of the class, if any, for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation, disqualification or removal. Directors need not be stockholders. The Certificate of Incorporation or these bylaws may prescribe qualifications for directors.
3.4     Resignation and Vacancies .
Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. The resignation shall take effect at the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt. The acceptance of a resignation shall not be necessary to make it effective unless otherwise expressly provided in the resignation. When one or more directors so resigns and the resignation is effective at a future date or upon the happening of an event to occur on a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in Section 3.3.
Unless otherwise provided in the Certificate of Incorporation or these bylaws, vacancies resulting from the death, resignation, disqualification or removal of any director, and newly created directorships resulting from any increase in the authorized number of directors shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
3.5     Place of Meetings; Meetings by Telephone .
The Board may hold meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this bylaw shall constitute presence in person at the meeting.
3.6     Regular Meetings .
Regular meetings of the Board may be held within or outside the State of Delaware and at such time and at such place as which has been designated by the Board and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other means of electronic transmission. No further notice shall be required for regular meetings of the Board.
3.7     Special Meetings; Notice .
Special meetings of the Board for any purpose or purposes may be called at any time by the chairperson of the Board, the Chief Executive Officer, the President, the Secretary or a majority of the total number of directors constituting the Board.

Notice of the time and place of special meetings shall be:
(i)    delivered personally by hand, by courier or by telephone;
(ii)    sent by United States first-class mail, postage prepaid;
(iii)    sent by facsimile or electronic mail; or
(iv)    sent by other means of electronic transmission,
directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, or other address for electronic transmission, as the case may be, as shown on the Corporation’s records.
If the notice is (i) delivered personally by hand, by courier or by telephone, (ii) sent by facsimile or electronic mail, or (iii) sent by other means of electronic transmission, it shall be delivered or sent at least twenty-four (24) hours before the time of the holding of the meeting. If the notice is sent by U.S. mail, it shall be deposited in the U.S. mail at least four (4) days before the time of the holding of the meeting. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting.
3.8     Quorum .
At all meetings of the Board, unless otherwise provided by the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or these bylaws. If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
3.9     Board Action without a Meeting .
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission. After such action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained. Such action by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board.
3.10     Fees and Compensation of Directors .
Unless otherwise restricted by the Certificate of Incorporation or these bylaws, the Board shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.

Article IV - Committees
4.1     Committees of Directors .
The Board may designate one (1) or more committees, each committee to consist, of one (1) or more of the directors of the Corporation. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.
4.2     Committee Minutes .
Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
4.3     Meetings and Actions of Committees .
Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:
(i) Section 3.5 (place of meetings; meetings by telephone);
(ii) Section 3.6 (regular meetings);
(iii) Section 3.7 (special meetings; notice);
(iv) Section 3.9 (board action without a meeting); and
(v) Section 7.13 (waiver of notice),
with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members. However :
(i)    the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee;
(ii)    special meetings of committees may also be called by resolution of the Board or the chairperson of the applicable committee; and
(iii)    the Board may adopt rules for the governance of any committee to override the provisions that would otherwise apply to the committee pursuant to this Section 4.3, provided that such rules do not violate the provisions of the Certificate of Incorporation or applicable law.

4.4     Subcommittees.
Unless otherwise provided in the Certificate of Incorporation, these bylaws or the resolutions of the Board designating the committee, a committee may create one (1) or more subcommittees, each subcommittee to consist of one (1) or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
Article V - Officers
5.1     Officers .
The officers of the Corporation shall include a Chief Executive Officer, a President and a Secretary. The Corporation may also have, at the discretion of the Board, a Chairperson of the Board, a Vice Chairperson of the Board, a Chief Financial Officer, a Treasurer, one (1) or more Vice Presidents, one (1) or more Assistant Vice Presidents, one (1) or more Assistant Treasurers, one (1) or more Assistant Secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same person. No officer need be a stockholder or director of the Corporation.
5.2     Appointment of Officers .
The Board or a duly authorized committee or subcommittee thereof shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws.
5.3     Subordinate Officers .
The Board or a duly authorized committee or subcommittee thereof may appoint, or empower the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President, to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board or a duly authorized committee or subcommittee thereof may from time to time determine, or as determined by the officer upon whom such power of appointment has been conferred by the Board or a duly authorized committee or subcommittee thereof.
5.4     Removal and Resignation of Officers .
Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.

5.5     Vacancies in Offices .
Any vacancy occurring in any office of the Corporation shall be filled by the Board or a duly authorized committee or subcommittee thereof as provided in Section 5.2.
5.6     Representation of Shares of Other Entities .
The Chairperson of the Board, the Chief Executive Officer, or the President of this Corporation, or any other person authorized by the Board, the Chief Executive Officer or the President, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares or voting securities of any other corporation or other entity standing in the name of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.
5.7     Authority and Duties of Officers .
All officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be provided herein or designated from time to time by the Board and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board.
5.8     Compensation.
The compensation of the officers of the Corporation for their services as such shall be fixed from time to time by or at the direction of the Board. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that he or she is also a director of the Corporation.
Article VI - Records
A stock ledger consisting of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder, and all issuances and transfers of stock of the corporation are recorded in accordance with Section 224 of the DGCL shall be administered by or on behalf of the Corporation. Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (i) can be used to prepare the list of stockholders specified in Sections 219 and 220 of the DGCL, (ii) record the information specified in Sections 156, 159, 217(a) and 218 of the DGCL, and (iii) record transfers of stock as governed by Article 8 of the Uniform Commercial Code as adopted in the State of Delaware.

Article VII - General Matters
7.1     Execution of Corporate Contracts and Instruments .
The Board, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
7.2     Stock Certificates .
The shares of the Corporation shall be represented by certificates, provided that the Board by resolution may provide that some or all of the shares of any class or series of stock of the Corporation shall be uncertificated. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law . Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two officers authorized to sign stock certificates representing the number of shares registered in certificate form. The Chairperson or Vice Chairperson of the Board, Chief Executive Officer, the President, Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Corporation shall be specifically authorized to sign stock certificates. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, or upon the books and records of the Corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
7.3     Special Designation of Certificates.
If the Corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or on the back of the certificate that the Corporation shall issue to represent such class or series of stock (or, in the case of uncertificated shares, set forth in a notice provided pursuant to Section 151 of the DGCL); provided, however, that except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock (or, in the case of any uncertificated shares, included in the aforementioned notice) a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

7.4     Lost Certificates .
Except as provided in this Section 7.4, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
7.5     Shares Without Certificates
The Corporation may adopt a system of issuance, recordation and transfer of its shares of stock by electronic or other means not involving the issuance of certificates, provided the use of such system by the Corporation is permitted in accordance with applicable law.
7.6     Construction; Definitions .
Unless the context requires otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural and the plural number includes the singular.
7.7     Dividends .
The Board, subject to any restrictions contained in either (i) the DGCL or (ii) the Certificate of Incorporation, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.
The Board may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.
7.8     Fiscal Year .
The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.
7.9     Seal .
The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
7.10     Transfer of Stock .
Shares of the Corporation shall be transferable in the manner prescribed by law and in these bylaws and subject to any transfer restrictions contained in the Certificate of Incorporation. Shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record

thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate person or persons (or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing the names of the persons from and to whom it was transferred. The Corporation shall have power and authority to make such rules and regulations as it may deem necessary or proper concerning the issuance, transfer and registration of certificates for shares of stock of the Corporation.
7.11     Stock Transfer Agreements .
The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
7.12     Registered Stockholders .
The Corporation:
(i)     shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner; and
(ii)    shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
7.13     Waiver of Notice .
Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or these bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation or these bylaws.
Article VIII - Notice
8.1     Delivery of Notice; Notice by Electronic Transmission .
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provisions of the DGCL, the Certificate of Incorporation, or these bylaws may be given in writing directed to the stockholder’s mailing address (or

by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given (1) if mailed, when the notice is deposited in the U.S. mail, postage prepaid, (2) if delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address or (3) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail. A notice by electronic mail must include a prominent legend that the communication is an important notice regarding the Corporation.
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation. Notwithstanding the provisions of this paragraph, the Corporation may give a notice by electronic mail in accordance with the first paragraph of this section without obtaining the consent required by this paragraph.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(ii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
(iii) if by any other form of electronic transmission, when directed to the stockholder.
Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (1) the Corporation is unable to deliver by such electronic transmission two (2) consecutive notices given by the Corporation and (2) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice, provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action.
An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Article IX - Indemnification
9.1     Indemnification of Directors and Officers .
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the request of

the Corporation as a director, officer, employee or agent of another corporation or of a partnership (a “covered person”), joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees, judgments, fines ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.4, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the Board.
9.2     Indemnification of Others .
The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
9.3     Prepayment of Expenses .
The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by any covered person, and may pay the expenses incurred by any employee or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however, that such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article IX or otherwise.
9.4     Determination; Claim .
If a claim for indemnification (following the final disposition of such Proceeding) under this Article IX is not paid in full within sixty (60) days, or a claim for advancement of expenses under this Article IX is not paid in full within thirty (30) days, after a written claim therefor has been received by the Corporation the claimant may thereafter (but not before) file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
9.5     Non-Exclusivity of Rights .
The rights conferred on any person by this Article IX shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

9.6     Insurance .
The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL.
9.7     Other Indemnification .
The Corporation’s obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
9.8     Continuation of Indemnification .
The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article IX shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
9.9     Amendment or Repeal; Interpretation .
The provisions of this Article IX shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has served as a director or officer of the Corporation (whether before or after the adoption of these bylaws), in consideration of such person’s performance of such services, and pursuant to this Article IX the Corporation intends to be legally bound to each such current or former director or officer of the Corporation. With respect to current and former directors and officers of the Corporation, the rights conferred under this Article IX are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of theses bylaws. With respect to any directors or officers of the Corporation who commence service following adoption of these bylaws, the rights conferred under this provision shall be present contractual rights and such rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation. Any repeal or modification of the foregoing provisions of this Article IX shall not adversely affect any right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.
Any reference to an officer of the Corporation in this Article IX shall be deemed to refer exclusively to the Chief Executive Officer, President, and Secretary, or other officer of the Corporation appointed by (x) the Board pursuant to Article V of these bylaws or (y) an officer to whom the Board has delegated the power to appoint officers pursuant to Article V of these bylaws, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors (or equivalent governing body) of such other entity pursuant to the certificate of incorporation and bylaws (or equivalent

organizational documents) of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise has been given or has used the title of “Vice President” or any other title that could be construed to suggest or imply that such person is or may be an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or being deemed to be, an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for purposes of this Article IX.
Article X - Amendments
In furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to adopt, amend or repeal the bylaws of the Corporation. The stockholders may not adopt, amend, alter or repeal the bylaws of the Corporation unless such action is approved, in addition to any other vote required by the Certificate of Incorporation or applicable law, (a) prior to the Sunset Date (as defined in the Certificate of Incorporation), by the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, or (b) from and after the Sunset Date, by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class.
Article XI - Definitions
As used in these bylaws, unless the context otherwise requires, the following terms shall have the following meanings:
An “ electronic transmission ” means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
An “ electronic mail ” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the Corporation who is available to assist with accessing such files and information).
An “ electronic mail address ” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
The term “ person ” means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity.

### EX-10.1 - EX-10.1
EX-10.1
4
exhibit101-8xk.htm
EX-10.1

Document
Exhibit 10.1

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LINCOLN INTERNATIONAL, LP
FOURTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
Dated as of May 19, 2026
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THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS FOURTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH LIMITED PARTNERSHIP INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
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TABLE OF CONTENTS
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Article I. DEFINITIONS | 3 |
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Article II. ORGANIZATIONAL MATTERS | 18 |
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Section 2.01 | Formation of Company | 18 |
Section 2.02 | Fourth Amended and Restated Limited Partnership Agreement | 18 |
Section 2.03 | Name | 18 |
Section 2.04 | Purpose; Powers | 18 |
Section 2.05 | Principal Office; Registered Office | 18 |
Section 2.06 | Term | 19 |
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Article III. PARTNERS; UNITS; CAPITALIZATION | 19 |
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Section 3.01 | Partners | 19 |
Section 3.02 | Units | 20 |
Section 3.03 | Recapitalization; the Corporation’s Capital Contribution; the Corporation’s Purchase of Common Units | 20 |
Section 3.04 | Authorization and Issuance of Additional Units | 21 |
Section 3.05 | Repurchase or Redemption of shares of Class A Common Stock | 23 |
Section 3.06 | Certificates Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units | 24 |
Section 3.07 | Negative Capital Accounts | 24 |
Section 3.08 | No Withdrawal | 25 |
Section 3.09 | Loans From Partners | 25 |
Section 3.10 | Equity Plans | 25 |
Section 3.11 | Dividend Reinvestment Plan, Cash Option Purchase Plan, Equity Plan or Other Plan | 25 |
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Article IV. DISTRIBUTIONS | 25 |
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Section 4.01 | Distributions | 25 |
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Article V. CAPITAL ACCOUNTS; ALLOCATIONS; TAX MATTERS | 29 |
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Section 5.01 | Capital Accounts | 29 |
Section 5.02 | Allocations | 29 |
Section 5.03 | Special Allocations | 29 |
Section 5.04 | Tax Allocations | 32 |

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Section 5.05 | Indemnification and Reimbursement for Payments on Behalf of a Partner | 33 |
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Article VI. MANAGEMENT | 34 |
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Section 6.01 | Authority of General Partner | 34 |
Section 6.02 | Actions of the General Partner | 35 |
Section 6.03 | Resignation; No Removal | 35 |
Section 6.04 | Vacancies | 35 |
Section 6.05 | Transactions Between the Company and the General Partner | 35 |
Section 6.06 | Reimbursement for Expenses | 36 |
Section 6.07 | Delegation of Authority | 36 |
Section 6.08 | Limitation of Liability of General Partner | 37 |
Section 6.09 | Investment Company Act | 38 |
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Article VII. RIGHTS AND OBLIGATIONS OF PARTNERS AND GENERAL PARTNER | 38 |
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Section 7.01 | Limitation of Liability and Duties of Partners and General Partner | 38 |
Section 7.02 | Lack of Authority | 39 |
Section 7.03 | No Right of Partition | 39 |
Section 7.04 | Indemnification | 39 |
Section 7.05 | Inspection Rights | 41 |
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Article VIII. BOOKS, RECORDS, ACCOUNTING AND REPORTS, AFFIRMATIVE COVENANTS | 41 |
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Section 8.01 | Records and Accounting | 41 |
Section 8.02 | Fiscal Year | 41 |
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Article IX. TAX MATTERS | 41 |
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Section 9.01 | Preparation of Tax Returns | 41 |
Section 9.02 | Tax Elections | 41 |
Section 9.03 | Tax Controversies | 42 |
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Article X. RESTRICTIONS ON TRANSFER OF UNITS; CERTAIN TRANSACTIONS | 43 |
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Section 10.01 | Transfers by Partners | 43 |
Section 10.02 | Permitted Transfers | 43 |
Section 10.03 | Restricted Units Legend | 44 |

iii

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Section 10.04 | Transfer | 44 |
Section 10.05 | Assignee’s Rights | 44 |
Section 10.06 | Assignor’s Rights and Obligations | 45 |
Section 10.07 | Overriding Provisions | 45 |
Section 10.08 | Spousal Consent | 46 |
Section 10.09 | Certain Transactions with respect to the Corporation | 47 |
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Article XI. REDEMPTION AND DIRECT EXCHANGE RIGHTS | 49 |
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Section 11.01 | Redemption Right of a Partner | 49 |
Section 11.02 | Election and Contribution of the Corporation | |
Section 11.03 | Direct Exchange Right of the Corporation | 53 |
Section 11.04 | Reservation of Shares of Class A Common Stock; Listing; Certificate of the Corporation | 54 |
Section 11.05 | Effect of Exercise of Redemption or Direct Exchange | 55 |
Section 11.06 | Tax Treatment | 55 |
Section 11.07 | Other Redemption Matters | 56 |
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Article XII. ADMISSION OF PARTNERS | 57 |
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Section 12.01 | Substituted Limited Partners | 57 |
Section 12.02 | Additional Limited Partners | 57 |
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Article XIII. WITHDRAWAL AND RESIGNATION; TERMINATION OF RIGHTS | 57 |
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Section 13.01 | Withdrawal and Resignation of Partners | 57 |
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Article XIV. DISSOLUTION AND LIQUIDATION | 58 |
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Section 14.01 | Dissolution | 58 |
Section 14.02 | Winding Up | 58 |
Section 14.03 | Deferment; Distribution in Kind | 59 |
Section 14.04 | Cancellation of Certificate | 60 |
Section 14.05 | Reasonable Time for Winding Up | 60 |
Section 14.06 | Return of Capital | 60 |
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Article XV. RESTRICTIVE COVENANTS | 60 |
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Section 15.01 | Purpose and Consideration | 60 |
Section 15.02 | Definitions Relevant to this Article XV | 61 |
Section 15.03 | Non-Solicitation of Clients | 62 |
Section 15.04 | Client Non-Service | 62 |

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Section 15.05 | Non-Solicitation of Restricted Persons | 62 |
Section 15.06 | Reasonableness of Restrictions | 63 |
Section 15.07 | Injunctive Relief, Attorneys’ Fees, and Tolling of Restrictive Periods | 63 |
Section 15.08 | Cumulative Agreement and Severability/Reformation | 63 |
Section 15.09 | Duty to Disclose | 64 |
Section 15.10 | Survival | 64 |
Section 15.11 | Partner Review | 64 |
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Article XVI. GENERAL PROVISIONS | 65 |
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Section 16.01 | Power of Attorney | 65 |
Section 16.02 | Confidentiality | 65 |
Section 16.03 | Amendments | 67 |
Section 16.04 | Title to Company Assets | 67 |
Section 16.05 | Addresses and Notices | 68 |
Section 16.06 | Binding Effect; Intended Beneficiaries | 69 |
Section 16.07 | Creditors | 69 |
Section 16.08 | Waiver | 69 |
Section 16.09 | Counterparts | 69 |
Section 16.10 | Applicable Law | 69 |
Section 16.11 | Severability | 70 |
Section 16.12 | Further Action | 70 |
Section 16.13 | Execution and Delivery by Electronic Signature and Electronic Transmission | 70 |
Section 16.14 | Right of Offset | 70 |
Section 16.15 | Entire Agreement | 70 |
Section 16.16 | Remedies | 71 |
Section 16.17 | Descriptive Headings; Interpretation | 71 |

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Schedules | | |
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Schedule 1 | – | Schedule of Pre-IPO Partners |
Schedule 2 | – | Schedule of Partners |
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Exhibits | | |
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Exhibit A | – | Form of Joinder Agreement |
Exhibit B-1 | – | Form of Agreement and Consent of Spouse |
Exhibit B-2 | – | Form of Spouse’s Confirmation of Separate Property |
Exhibit C | – | Policy Regarding Certain Equity Issuances |
Exhibit D | | Form of Redemption Notice |

vi

LINCOLN INTERNATIONAL, LP
FOURTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
This FOURTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”) of Lincoln International, LP, a Delaware limited partnership (the “ Company ”), dated as of May 19, 2026 (the “ Effective Date ”), is made and entered into by and among the Company, Lincoln International, Inc., a Delaware corporation (the “ Corporation ”), as the sole General Partner (as defined below) of the Company, and each of the other persons listed on Schedule 2 attached hereto as limited partners (together with persons subsequently admitted as limited partners under this Agreement, the “ Limited Partners ”).
RECITALS
WHEREAS, unless the context otherwise requires, capitalized terms used herein have the respective meaning ascribed to them in Article I ;
WHEREAS, certain of the Partners (as defined below) were members of Lincoln Partners LLC, a Delaware limited liability company (“ Lincoln Partners ”);
WHEREAS, certain of the Partners elected to convert Lincoln Partners into a Delaware limited partnership with the name “Lincoln International, LP” to be governed by the terms and conditions of the Limited Partnership Agreement of the Company, dated as of December 19, 2011 (the “ Original Partnership Agreement ”);
WHEREAS, certain of the Partners amended and restated the Original Partnership Agreement by entering into that certain Amended and Restated Limited Partnership Agreement of the Company effective as of January 1, 2013 (as amended by Amendment No. 1, dated May 23, 2019, and Amendment No. 2, dated July 29, 2019, the “ First Amended and Restated LP Agreement ”);
WHEREAS, certain of the Partners amended and restated the First Amended and Restated LP Agreement by entering into that certain Second Amended and Restated Limited Partnership Agreement of the Company, effective as of August 7, 2020 (the “ Second Amended and Restated LP Agreement ”);
WHEREAS, immediately prior to the date hereof, the Company was governed by that certain Third Amended and Restated Limited Partnership Agreement of the Company, dated as of April 27, 2022 (as amended by Amendment No. 1 to the Third Amended and Restated Limited Partnership Agreement, effective as of January 1, 2025, and by Amendment No. 2 to the Third Amended and Restated Limited Partnership Agreement, effective as of April 21, 2026, and as further amended, restated, amended and restated, supplemented or otherwise modified from

time to time, together with all schedules, exhibits and annexes thereto, the “ Prior LP Agreement ”), which the parties listed on Schedule 1 hereto were parties in their capacity as partners (including pursuant to consents and joinders thereto) (collectively, the “ Pre-IPO Partners ”);
WHEREAS, in connection with the IPO, the Company was a party to a series of reorganization transactions with the Corporation and various other parties pursuant to which, among other matters, the Corporation was admitted as a Pre-IPO Partner and as the sole General Partner of the Company and the Company was continued without dissolution (the “ Reorganization Transactions ”);
WHEREAS, in connection with the IPO, the Company, the Corporation and the Pre-IPO Partners desire to recapitalize and convert all of the Original Units (as defined below) into Common Units (as defined below) (the “ Recapitalization ”) as provided herein;
WHEREAS, except for the Over-Allotment Option (as defined below), the Corporation will sell shares of its Class A Common Stock to public investors in the IPO and will use the net proceeds received from the IPO (the “ IPO Net Proceeds ”) to purchase newly issued Common Units from the Company pursuant to the IPO Common Unit Subscription Agreement;
WHEREAS, the Corporation may issue additional shares of Class A Common Stock in connection with the IPO as a result of the exercise by the underwriters of their over-allotment option (the “ Over-Allotment Option ”) and, if the Over-Allotment Option is exercised in whole or in part, any additional net proceeds (the “ Over-Allotment Option Net Proceeds ”) shall be used by the Corporation to purchase additional newly issued Common Units from the Company pursuant to the IPO Common Unit Subscription Agreement;
WHEREAS, the net proceeds received by the Company from the issuance of Common Units pursuant to the IPO Common Unit Subscription Agreement shall be used (i) to partially redeem certain of the Common Units held directly or indirectly by Partners, (ii) to pay fees and expenses in connection with the IPO and Recapitalization, (iii) to repay amounts under the Credit Agreements and (iv) for general corporate purposes; and
WHEREAS, in connection with the foregoing matters, the Company and the Partners desire to continue the Company without dissolution and amend and restate the Prior LP Agreement in its entirety as of the Effective Date to reflect, among other things, (a) the Recapitalization, (b) the admission of the Corporation as a Partner (which was effected in accordance with the foregoing Recitals) and its admission as sole General Partner of the Company and (c) the other rights and obligations of the Partners, the Company, the General Partner and the Corporation, in each case, as provided and agreed upon in the terms of this Agreement as of the Effective Date, at which time the Prior LP Agreement shall be superseded entirely by this Agreement and shall be of no further force or effect.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
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acknowledged, this Agreement is hereby entered into by and among the Company, the Corporation and the Partners, each intending to be legally bound, each hereby agrees as follows:
ARTICLE I.
DEFINITIONS
The following definitions shall be applied to the terms used in this Agreement for all purposes, unless otherwise clearly indicated to the contrary.
“ Additional Limited Partner ” has the meaning set forth in Section 12.02 .
“ Adjusted Capital Account Deficit ” means, with respect to the Capital Account of any Partner as of the end of any Taxable Year, the amount by which the balance in such Capital Account is less than zero. For this purpose, such Partner’s Capital Account balance shall be:
(a)    reduced for any items described in Treasury Regulation Section 1.704- 1(b)(2)(ii)(d)(4), (5), and (6); and
(b)    increased for any amount such Partner is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i) (relating to minimum gain).
“ Admission Date ” has the meaning set forth in Section 10.06 .
“ Affiliate ” (and, with a correlative meaning, “ Affiliated ”) means, with respect to a specified Person, each other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. As used in this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of voting securities or by contract or other agreement).
“ Agreement ” has the meaning set forth in the Preamble.
“ Assignee ” means a Person to whom a Unit has been transferred but who has not become a Substituted Limited Partner pursuant to Article XII .
“ Assumed Tax Liability ” means, with respect to any Partner, an amount equal to the excess of (i) the product of (A) the Distribution Tax Rate multiplied by (B) the estimated or actual cumulative taxable income or gain of the Company, as determined for federal income tax purposes, allocated to such Partner for full or partial Fiscal Years commencing on or after the Effective Date, less prior losses of the Company allocated to such Partner for full or partial Fiscal Years commencing on or after the Effective Date to the extent such prior losses are available to reduce such income or gain and have not previously been taken into account in the calculation of Assumed Tax Liability for any prior period, in each case, as determined by the General Partner over (ii) the the cumulative Tax Distributions made to such Partner after the Effective Date
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pursuant to Sections 4.01(b)(i) , 4.01(b)(ii) and 4.01(b)(iii) ; provided that, (x) in the case of each Partner, and for the avoidance of doubt, such Assumed Tax Liability shall take into account any Code Section 704(c) allocations (including “reverse” 704(c) allocations) as well as any adjustments under Sections 743 or 734 of the Code and (y) in the case of the Corporation, such Assumed Tax Liability shall in no event be less than an amount that will enable the Corporation to meet both its tax obligations and its obligations pursuant to the Tax Receivable Agreement for the relevant Taxable Year.
“ Base Rate ” means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.
“ Black-Out Period ” means any “black-out” or similar period under the Corporation’s policies covering trading in the Corporation’s securities to which the applicable Redeeming Partner is subject (or shall be subject at such time as it owns Class A Common Stock), which period restricts the ability of such Redeeming Partner to immediately resell shares of Class A Common Stock to be delivered to such Redeeming Partner in connection with a Share Settlement.
“ Book Value ” means, with respect to any property of the Company, the Company’s adjusted basis for U.S. federal income tax purposes, adjusted from time to time to reflect the adjustments required or permitted by Treasury Regulation Section 1.704-1(b)(2)(iv)(d)-(g).
“ Business Day ” means any day other than a Saturday, Sunday or day on which banks located in New York City, New York are authorized or required by Law to close.
“ Capital Account ” means the capital account maintained for a Partner in accordance with Section 5.01 .
“ Capital Contribution ” means, with respect to any Partner, the amount of any cash, cash equivalents, promissory obligations or the Fair Market Value of other property that such Partner (or such Partner’s predecessor) contributes (or is deemed to contribute) to the Company pursuant to Article III hereof.
“ Cash Settlement ” means immediately available funds in U.S. dollars in an amount equal to the Redeemed Units Equivalent; provided, that such funds are (i) in the case of a Redemption occurring in connection with the closing of the IPO, funds that are received from the IPO and (ii) in any other case, funds that are received from a Qualifying Offering; for the avoidance of doubt, such funds shall be equal to the net proceeds received by the Corporation from the IPO or Qualifying Offering, as applicable, determined after deduction of the Discount.
“ Certificate ” means the Company’s Certificate of Limited Partnership as filed with the Secretary of State of the State of Delaware, as amended or amended and restated from time to time.
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“ Certificate of Incorporation ” means the Certificate of Incorporation of the Corporation as in effect in the Corporation’s jurisdiction of formation, as may be amended from time to time.
“ Cause ” means, with respect to any Partner who is an individual, (a) the Financial Industry Regulatory Authority of the United States (“FINRA”) terminates a Partner’s “Principal” or “Registered Representative” license or such license lapses and such Partner fails to reinstate such license within a reasonable period of time after proper notice that such license has lapsed; (b) a Partner commits any fraud, act of bad faith, theft of Company property, or property of any of its Subsidiaries or Affiliates, or makes a misrepresentation of material fact that results in a loss in excess of $2,500; (c) a Partner’s indictment, conviction of, or entry of a plea of guilty or no contest with respect to a felony or any lesser crime of which fraud or dishonesty is a material element; (d) a Partner breaches its covenants under Article XV of this Agreement; (e) a Partner fails to comply with the codes, policies or procedures of the Company or of any of its Subsidiaries or Affiliates or any Federal or State laws and regulations regarding the hiring or treatment of employees; (f) a Partner’s intoxication while engaged in the performance of any duties on behalf of the Company or its Subsidiaries or Affiliates or which interferes with such Partner’s ability to perform such Partner’s assigned duties or responsibilities, or use of illegal drugs; or (g) a Partner breaches or violates any employment or similar agreement with the Company or any of its Subsidiaries or Affiliates or any covenant or obligation pertaining to non-competition, non-solicitation of clients and/or employees, non-service of clients, assignment of intellectual property, or confidentiality owing to the Company or any of its Subsidiaries or Affiliates (including, without limitation, any Proprietary Interests Protection Agreement such Partner entered into with the Company or any of its Subsidiaries or Affiliates).
“ Change of Control ” means the occurrence of any of the following events:
(a)    any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and excluding the Permitted Transferees) becomes the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of shares of Class A Common Stock, Class B Common Stock, Class C Common Stock, preferred stock and/or any other class or classes of capital stock of the Corporation (if any) representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote;
(b)    the stockholders of the Corporation approve a plan of complete liquidation or dissolution of the Corporation or there is consummated a transaction or series of related transactions for the sale, lease, exchange or other disposition, directly or indirectly, by the Corporation of all or substantially all of the Corporation’s assets (including a sale of all or substantially all of the assets of the Company);
(c)    there is consummated a merger or consolidation of the Corporation with any other corporation or entity, and, immediately after the consummation of such merger or consolidation, the voting securities of the Corporation immediately prior to such merger
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or consolidation do not continue to represent, or are not converted into, voting securities representing more than fifty percent (50%) of the combined voting power of the outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof; or
(d)    the Corporation ceases to be the sole general partner of 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 beneficial holders of the Class A Common Stock, Class B Common Stock, Class C Common Stock, preferred stock and/or any other class or classes of capital stock of the Corporation immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions.
“ Change of Control Date ” has the meaning set forth in Section 10.09(a) .
“ Change of Control Transaction ” means any Change of Control that was approved by the Corporate Board prior to such Change of Control.
“ Class A Common Stock ” means the shares of Class A common stock, par value $0.00001 per share, of the Corporation.
“ Class B Common Stock ” means the shares of Class B Common Stock, par value $0.00001 per share, of the Corporation.
“ Class C Common Stock ” means the shares of Class C Common Stock, par value $0.00001 per share, of the Corporation.
“ Code ” means the United States Internal Revenue Code of 1986, as amended. Unless the context requires otherwise, any reference herein to a specific section of the Code shall be deemed to include any corresponding provisions of future Law as in effect for the relevant taxable period.
“ Common Unit ” means a Unit designated as a “Common Unit” and having the rights and obligations specified with respect to the Common Units in this Agreement.
“ Common Unit Redemption Price ” means the price per share for which shares of Class A Common Stock are sold by the Corporation in the IPO or applicable Qualifying Offering, as applicable, after taking into account any Discount.
“ Common Unitholder ” means a Partner who is the registered holder of Common Units.
“ Company ” has the meaning set forth in the preamble to this Agreement.
“ Confidential Information ” has the meaning set forth in Section 16.02(a) .
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“ Controlling Partners ” means Lawrence James Lawson III, the Corporation’s co-founder and Chairman of the Corporate Board, Robert Bruce Barr, the Corporation’s co-founder and director of the Corporate Board, Robert Todd Brown, the Corporation’s Chief Executive Officer and director of the Corporate Board, and Eric Dennis Malchow, the Corporation’s President and Global Head of M&A and director of the Corporate Board, who will each be holders of Common Units, Class A Common Stock (other than Mr. Malchow) and Class C Common Stock immediately following consummation of the Reorganization Transactions.
“ Corporate Board ” means the board of directors of the Corporation.
“ Corporate Incentive Award Plan ” means the 2026 Incentive Award Plan of the Corporation, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“ Corporation ” has the meaning set forth in the recitals to this Agreement, together with its successors and assigns.
“ Corporation Offer ” has the meaning set forth in Section 10.09(b) .
“ Corresponding Rights ” means any rights issued with respect to a share of Class A Common Stock, Class B Common Stock or Class C Common Stock pursuant to a “poison pill” or similar stockholder rights plan approved by the Corporate Board.
“ Credit Agreements ” means any promissory note, mortgage, loan agreement, indenture or similar instrument or agreement to which the Company or any of its Subsidiaries is or becomes a borrower, as such instruments or agreements may be amended, restated, supplemented or otherwise modified from time to time and including any one or more refinancing or replacements thereof, in whole or in part, with any other debt facility or debt obligation, for as long as the payee or creditor to whom the Company or any of its Subsidiaries owes such obligation is not an Affiliate of the Company.
“ Delaware Act ” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended from time to time, and any successor thereto.
“ DGCL ” means the General Corporation Law of the State of Delaware.
“ Direct Exchange ” has the meaning set forth in Section 11.03(a) .
“ Discount ” has the meaning set forth in Section 6.06 .
“ Disinterested Majority ” means a majority of the directors of the Corporate Board who are disinterested, as determined by the Corporate Board in accordance with the DGCL and applicable common law, with respect to the matter being considered by the Corporate Board; provided, that to the extent a matter being considered by the Corporate Board is required to be considered by disinterested directors under the rules of the Stock Exchange or, if the Class A Common Stock is not listed or admitted to trading on the Stock Exchange, the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading, the
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Securities Act or the Exchange Act, such rules with respect to the definition of disinterested director shall apply solely with respect to such matter. For purposes of any election to be made by the Corporation between a Cash Settlement and a Share Settlement upon a Redemption of Common Units, the Disinterested Majority shall exclude any director who is (i) the beneficial owner of such Common Units; (ii) Affiliated with the beneficial owner of such Common Units; or (iii) serving on the Corporate Board as a nominee of the beneficial owner of such Common Units or its Affiliates.
“ Distributable Cash ” means, as of any relevant date on which a determination is being made by the General Partner regarding a potential distribution pursuant to Section 4.01(a) , the amount of cash that could be distributed by the Company for such purposes in accordance with the Credit Agreements (and without otherwise violating any applicable provisions of any of the Credit Agreements) and applicable Law.
“ Distribution ” (and, with a correlative meaning, “ Distribute ”) means each distribution made by the Company to a Partner with respect to such Partner’s Units, whether in cash, property or securities of the Company and whether by liquidating distribution or otherwise; provided, however , that none of the following shall be a Distribution: (a) any recapitalization that does not result in the distribution of cash or property to Partners 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 Partner that is not properly treated as a “distribution” for purposes of Sections 731, 732, or 733 or other applicable provisions of the Code.
“ Distribution Tax Rate ” means a rate equal to the highest effective marginal combined U.S. federal, state and local income tax rate applicable for a Fiscal Year applicable to a corporate or individual taxpayer (whichever is higher), resident in New York, New York, determined by taking into account the character of the relevant tax items ( e.g. , ordinary or capital) and the deductibility of state and local income taxes for federal income tax purposes (but only to the extent such taxes are deductible under the Code), as reasonably determined by the General Partner; provided that, for the avoidance of doubt, such highest rate shall apply to all Partners for purposes of this Agreement.
“ Effective Date ” has the meaning set forth in the Preamble.
“ Election Notice ” has the meaning set forth in Section 11.01(b) .
“ Equity Plan ” means any stock or equity purchase plan, restricted stock, option, stock unit, restricted stock unit, dividend equivalent, appreciation right, phantom equity or other incentive equity or equity-based plan or program now or hereafter adopted by the Company or the Corporation, including, without limitation, the Corporate Incentive Award Plan.
“ Equity Securities ” means (a) Units or other equity interests in the Company or any Subsidiary of the Company (including other classes or groups thereof having such relative rights, powers and duties as may from time to time be established by the General Partner pursuant to the provisions of this Agreement, including rights, powers and/or duties senior to existing classes
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and groups of Units and other equity interests in the Company or any Subsidiary of the Company), (b) obligations, evidences of indebtedness or other securities or interests convertible or exchangeable into Units or other equity interests in the Company or any Subsidiary of the Company, and (c) warrants, options or other rights to purchase or otherwise acquire Units or other equity interests in the Company or any Subsidiary of the Company.
“ Estate Planning Vehicle ” means, with respect to any Partner (or former Partner) that is a natural person, (a) a trust which is at all times controlled by such Partner (or former Partner) under which a distribution of such Partner’s (or former Partner’s) Common Units may be made only to beneficiaries who are such Partner (or former Partner), his or her spouse, his or her parents or his or her lineal descendants, (b) a charitable remainder trust which is at all times controlled by such Partner (or former Partner), the income from which will be paid to such Partner (or former Partner) during his or her life, (c) a corporation, the sole assets of which are Equity Securities in the Company and/or the Corporation, and at all times the majority and controlling shareholder of which is only such Partner (or former Partner) and the remaining shareholders of which are either such Partner (or former Partner) or his or her spouse, his or her parents or his or her lineal descendants and (d) a partnership or limited liability company, the sole assets of which are Equity Securities in the Company and/or the Corporation, and at all times the general partner or managing or majority member of which is only such Partner (or former Partner), and the remaining partners or members of which are either such Partner (or former Partner) or his or her spouse, his or her parents or his or her lineal descendants.
“ Event of Withdrawal ” means any event that terminates the continued partnership of a Partner in the Company. “Event of Withdrawal” shall not include an event that (a) terminates the existence of a Partner for income tax purposes (including, without limitation, (i) a change in entity classification of a Partner under Treasury Regulation Section 301.7701-3, (ii) a sale of assets by, or liquidation of, a Partner pursuant to an election under Code Sections 336 or 338, or (iii) merger, severance, or allocation within a trust or among sub-trusts of a trust that is a Partner) but that (b) does not terminate the existence of such Partner under applicable state law (or, in the case of a trust that is a Partner, does not terminate the trusteeship of the fiduciaries under such trust with respect to all the Units of such trust that is a Partner).
“ Excess Assets ” has the meaning set forth in Section 3.04(c) .
“ Excess Cash ” has the meaning set forth in Section 3.04(c) .
“ Excess Loan Receivables ” has the meaning set forth in Section 3.04(c) .
“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and any applicable rules and regulations promulgated thereunder, and any successor to such statute, rules or regulations .
“ Exchange Election Notice ” has the meaning set forth in Section 11.03(b) .
“ Fair Market Value ” of a specific asset of the Company shall mean the amount which the Company would receive in an all-cash sale of such asset in an arms-length transaction with a
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willing unaffiliated third party, with neither party having any compulsion to buy or sell, consummated on the day immediately preceding the date on which the event occurred which necessitated the determination of the Fair Market Value (and after giving effect to any transfer taxes payable in connection with such sale), as such amount is determined by the General Partner (or, if pursuant to Section 14.02 , the Liquidators) in its good faith judgment using all factors, information and data it deems to be pertinent.
“ Fiscal Period ” means any interim accounting period within a Taxable Year established by the General Partner and which is permitted or required by Section 706 of the Code.
“ Fiscal Year ” means the Company’s annual accounting period established pursuant to Section 8.02 .
“ General Partner ” has the meaning set forth in Section 6.01 .
“ General Partner Interest ” means the entire Partnership Interest held by the General Partner, which Partnership Interest may be expressed as a number of Common Units or other Units.
“ Good Reason ” means the occurrence of any of the following to a Partner who is an individual, in each case without a Partner’s consent: (i) a material reduction in his or her base compensation (and, for the avoidance of doubt, does not include any such reduction to such Partner’s variable or incentive compensation) other than a general reduction in compensation that affects all similarly situated employees in substantially similar proportions; provided , that, for the avoidance of doubt, fluctuations in such Partner’s variable or incentive compensation do not give rise to Good Reason; (ii) a relocation of his or her principal place of employment by more than 50 miles by action of the Company or any of its Subsidiaries or Affiliates; or (iii) a material, adverse change in his or her title or responsibilities (other than temporarily while he or she may be physically or mentally Incapacitated or as required by applicable Law or regulation); provided ,  however , that he or she must: (a) tender to the Company a signed written notice (x) detailing particular circumstances constituting the basis for such Partner’s resignation with Good Reason and (y) referencing the specific applicable provisions of this Good Reason definition, within 15 calendar days after such Partner obtains actual knowledge of any such circumstance having occurred, and (b) allow the Company 30 calendar days from receipt of such notice to cure the same. If the Company so cures the circumstance(s), Good Reason shall be deemed not to exist with respect to such cured circumstance. In addition, such Partner must resign his or her employment 90 calendar days after providing the required written notice of such Good Reason circumstances, and the Company must fail to timely cure such circumstances, for such resignation to be for Good Reason.
“ Governmental Entity ” means (a) the United States of America, (b) any other sovereign nation, (c) any state, province, district, territory or other political subdivision of (a) or (b) of this definition, including, but not limited to, any county, municipal or other local subdivision of the foregoing, or (d) any agency, arbitrator or arbitral body, authority, board, body, bureau, commission, court, department, entity, instrumentality, organization or tribunal exercising
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executive, legislative, judicial, regulatory or administrative functions of government on behalf of (a), (b) or (c) of this definition.
“ Indemnified Person ” has the meaning set forth in Section 7.04(a) .
“ Investment Company Act ” means the U.S. Investment Company Act of 1940, as amended from time to time.
“ Incapacitated ” or “ Incapacity ” means, with respect to any Partner who is an individual, death, total physical disability or entry by a court of competent jurisdiction adjudicating such Partner incompetent to manage his or her person or his or her estate.
“ IPO ” means the initial underwritten public offering of shares of the Corporation’s Class A Common Stock.
“ IPO Common Unit Subscription ” has the meaning set forth in Section 3.03(b) .
“ IPO Common Unit Subscription Agreement ” means that certain Common Unit Subscription Agreement, dated as of the Effective Date, by and between the Corporation and the Company.
“ IPO Net Proceeds ” has the meaning set forth in the Recitals.
“ Joinder ” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement.
“ Law ” means all laws, statutes, ordinances, rules and regulations of any Governmental Entity.
“ Limited Partner ” has the meaning set forth in the Recitals.
“ Limited Partner Interest ” means a Partnership Interest of a Limited Partner in the Company representing a fractional part of the Partnership Interest of all Limited Partners and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partner Interest may be expressed as a number of Common Units or other Units.
“ Liquidator ” has the meaning set forth in Section 14.02 .
“ Liquidity Proceeds ” means the right to receive proceeds on a sale or other disposition, including, but not limited to, a redemption of Common Units or liquidation of the Company but does not include any rights to vote, any rights to distributions (other than liquidating distributions), any rights to information or any other rights of a Partner under this Agreement.
“ Liquidity Proceeds Permitted Transferee ” means, with respect to any Partner (a) such Partner’s spouse as well as any natural or adopted lineal descendants of such Partner or any
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natural or adoptive parents of such Partner, (b) a trust of which any one or more of such Partner, such Partner’s spouse, such Partner’s natural or adopted lineal descendants, and/or such Partner’s natural or adoptive parents are the sole beneficiaries, or (c) a partnership or limited liability company controlled by such Partner, the partners or members of which consist solely of such Partner, such Partner’s spouse, such Partner’s natural or adopted lineal descendants, or such Partner’s natural or adoptive parents. If a Partner has assigned any Liquidity Proceeds to a Liquidity Proceeds Permitted Transferee that is (1) such Partner’s spouse (2) a trust of which such Partner’s spouse is a beneficiary or (3) a partnership or limited liability company controlled by such Partner and in which the Partner’s spouse is a partner or member, and such spouse thereafter becomes a former spouse, the General Partner may, in its sole discretion, require that such Partner as promptly as possible (at such Partner’s sole cost and expense and in a manner reasonably acceptable to the General Partner) re-assign such Liquidity Proceeds from such spouse back to such Partner or a different Liquidity Proceeds Permitted Transferee, or make such other arrangements, in each case so that a Partner’s former Spouse is not entitled to such Liquidity Proceeds.
“ Lock-Up Common Units ” means (i) Common Units held by an Original Partner on the closing date of the IPO and (ii) Common Units received by an Original Partner upon the exercise by such Original Partner of any option to purchase Common Units held by such Original Partner as of the closing date of the IPO.
“ Lock-Up Period ” means, as to Lock-Up Common Units outstanding as of the close of business on the closing date of the IPO, the period commencing on the date of this Agreement and continuing through, unless earlier terminated or waived by the General Partner, or its designee, in its sole discretion:
the second (2 nd ) anniversary of the closing date of the IPO, with respect to one-third of such Lock-Up Common Units;
(a)    the third (3 rd ) anniversary of the closing date of the IPO, with respect to one-third of such Lock-Up Common Units; and
(b)    the fourth (4 th ) anniversary of the closing date of the IPO, with respect to one-third of such Lock-Up Common Units,
provided , that
(i)    if, prior to the fourth (4 th ) anniversary of the closing date of the IPO, a Partner with respect to any Lock-Up Common Units is no longer employed by the Company or one of its Affiliates as a result of either (1) such Partner’s termination of employment; provided that such termination is (i) without Good Reason and (ii) not in connection with such Partner’s Retirement or (2) the Company’s or the applicable employing Affiliate’s termination of such Partner’s employment with “Cause” (in each case including such termination that occurred in the period prior to the closing date of the IPO), in each case the Lock-Up Period shall automatically extend with respect to such Lock-Up Common Units held by such Partner or such Partner’s Permitted Transferees on
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the date such Partner provided notice of such termination in the case of clause (1) or was notified by the Company of such termination in the case of clause (2) for a period ending no later than the seventh (7th) anniversary of the closing date of the IPO; provided , however , that the General Partner, or its designee, may, in its sole and absolute discretion, waive or shorten such extension; and
(ii)    if a Partner holding Lock-Up Common Units becomes deceased or such Partner’s employment is terminated as a result of such Partner’s Permanent Disability, the Lock-Up Period shall automatically end with respect to such Lock-Up Common Units.
“ Losses ” means items of loss or deduction of the Company determined according to Section 5.01(b) .
“ Minimum Gain ” means “partnership minimum gain” determined pursuant to Treasury Regulation Section 1.704-2(d).
“ Minimum Redemption Number ” means, with respect to a Redemption by any Partner, the lesser of (i) 15,000 Common Units and (ii) all of the Common Units held by the Redeeming Partner.
“ Minority Partner Redemption Date ” has the meaning set forth in Section 11.07 .
“ Minority Partner Redemption Notice ” has the meaning set forth in Section 11.07 .
“ Net Loss ” means, with respect to a Fiscal Year, the excess if any, of Losses for such Fiscal Year over Profits for such Fiscal Year (excluding Profits and Losses specially allocated pursuant to Section 5.03 and Section 5.04 ).
“ Net Profit ” means, with respect to a Fiscal Year, the excess if any, of Profits for such Fiscal Year over Losses for such Fiscal Year (excluding Profits and Losses specially allocated pursuant to Section 5.03 ).
“ Non-Foreign Person Certificate ” has the meaning set forth in Section 11.06(a) .
“ Officer ” has the meaning set forth in Section 6.01(b) .
“ One-to-One Ratio ” has the meaning set forth in Section 3.04(a)(i) .
“ Original Partner ” means any Person that is a Partner as of the close of business on the closing date of the IPO, and does not include any Assignee or other transferee, including any Substituted Limited Partner succeeding to all or any part of the Common Units of any such Person.
“ Original Units ” means the Partnership Interests of the Company prior to the Recapitalization.
“ Other Agreements ” has the meaning set forth in Section 10.04 .
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“ Over-Allotment Contribution ” has the meaning set forth in Section 3.03(b) .
“ Over-Allotment Option ” has the meaning set forth in the Recitals.
“ Over-Allotment Option Net Proceeds ” has the meaning set forth in the Recitals.
“ Partner ” means, as of any date of determination, (a) each of the partners named on the Schedule of Partners and (b) any Person admitted to the Company as a Substituted Limited Partner or Additional Limited Partner in accordance with Article XII , but in each case only so long as such Person is shown on the Company’s books and records as the owner of one or more Units, each in its capacity as a partner of the Company.
“ Partnership Audit Provisions ” means Section 1101 of Title XI (Revenue Provisions Related to Tax Compliance) of the Bipartisan Budget Act of 2015, H.R. 1314, Public Law Number 114-74, as amended. Unless the context requires otherwise, any reference herein to a specific section of the Partnership Audit Provisions shall be deemed to include any corresponding provisions of future Law as in effect for the relevant taxable period.
“ Partnership Interest ” means an ownership interest in the Company held by either the General Partner or a Limited Partner and includes any and all benefits to which the holder of such Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such person to comply with the terms and provisions of this Agreement. There may be one or more classes or series of Partnership Interests. A Partnership Interest may be expressed as a number of Common Units or other Units; however, notwithstanding that the General Partner and any Limited Partner may have different rights and privileges as specified in this Agreement (including differences in rights and privileges with respect to their Partnership Interests), the Partnership Interest held by the General Partner or any other Partner and designated as being of a particular class or series shall not be deemed to be a separate class or series of Partnership Interest from a Partnership Interest having the same designation as to class and series that is held by any other Partner solely because such Partnership Interest is held by the General Partner or any other Partner having different rights and privileges as specified under this Agreement.
“ Partnership Representative ” has the meaning set forth in Section 9.03 .
“ Percentage Interest ” means, as among an individual class of Units and with respect to a Partner at a particular time, such Partner’s percentage interest in the Company determined by dividing the number of such Partner’s Units of such class by the total number of Units of all Partners of such class at such time. The Percentage Interest of each Partner shall be calculated to the fourth decimal place.
“ Permanent Disability ” means, with respect to any Partner, inability to substantially perform customary duties of the Partner for a period of nine months or more.
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“ Permitted Pledge ” means any bona fide pledge or collateralization of the Common Units held by a Partner to a financial institution of international standing in connection with any bona fide loan or debt transaction.
“ Permitted Transfer ” has the meaning set forth in Section 10.02 .
“ Permitted Transferee ” has the meaning set forth in Section 10.02 .
“ Person ” means an individual or any corporation, partnership, limited liability company, trust, unincorporated organization, association, joint venture or any other organization or entity, whether or not a legal entity.
“ Pre-IPO Distribution Agreement ” means with respect to each Partner, an agreement between such Partner and the Company, entered into prior to the Effective Date and relating the distribution of Company revenues from time periods prior to the Effective Date as described in the Deferral Program in such agreement.
“ Pre-IPO Partners ” has the meaning set forth in the recitals to this Agreement.
“ Prior LP Agreement ” has the meaning set forth in the Recitals.
“ Pro rata ,” “ pro rata portion ,” “ according to their interests ,” “ ratably ,” “ proportionately ,” “ proportional ,” “ in proportion to ,” “ based on the number of Units held ,” “ based upon the percentage of Units held ,” “ based upon the number of Units outstanding ,” and other terms with similar meanings, when used in the context of a number of Units of the Company relative to other Units, means as amongst an individual class of Units, pro rata based upon the number of such Units within such class of Units.
“ Profits ” means items of income and gain of the Company determined according to Section 5.01(b) .
“ Qualifying Offering ” means a private or public offering of shares of Class A Common Stock by the Corporation following the IPO.
“ Quarterly Tax Distribution ” has the meaning set forth in Section 4.01(b)(i) .
“ Recapitalization ” has the meaning set forth in the Recitals.
“ Redeemed Units ” has the meaning set forth in Section 11.01(a) .
“ Redeemed Units Equivalent ” means the product of (a) the applicable number of Redeemed Units, multiplied by (b) the Common Unit Redemption Price.
“ Redeeming Partner ” has the meaning set forth in Section 11.01(a) .
“ Redemption ” has the meaning set forth in Section 11.01(a) .
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“ Redemption Date ” has the meaning set forth in Section 11.01(a) .
“ Redemption Notice ” has the meaning set forth in Section 11.01(a) .
“ Redemption Right ” has the meaning set forth in Section 11.01(a) .
“ Registration Rights Agreement ” means that certain Registration Rights Agreement, dated as of the Effective Date, by and among the Corporation, certain of the Partners as of the Effective Date and certain other Persons whose signatures are affixed thereto (together with any joinder thereto from time to time by any successor or assign to any party to such agreement) (as it may be amended from time to time in accordance with its terms).
“ Regulatory Allocations ” has the meaning set forth in Section 5.03(g) .
“ Reorganization Transactions ” has the meaning set forth in the Recitals.
“ Retirement ” means an individual who is 65 years old or older resigning without going to work for or forming a competitor of the Company, its Subsidiaries or Affiliates within a three year period following such resignation, whereby “going to work for or forming a competitor” (or similarly derived phrases) means accepting employment with or providing professional services for or forming a firm that competes directly or indirectly with the Company, its Subsidiaries or Affiliates, which provides investment banking services, including merger and acquisition advisory, private capital raising, restructuring, joint venture and partnership advisory services, valuation advisory services, transaction opinion services or other services sold by or provided by the Company, its Subsidiaries or Affiliates during the individual’s employment with the Company, its Subsidiaries or Affiliates, anywhere in the world.
“ Retraction Notice ” has the meaning set forth in Section 11.01(c) .
“ Schedule of Partners ” has the meaning set forth in Section 3.01(b) .
“ SEC ” means the U.S. Securities and Exchange Commission, including any governmental body or agency succeeding to the functions thereof.
“ Securities Act ” means the U.S. Securities Act of 1933, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule or regulation of the Securities Act shall be deemed to include any corresponding provisions of future Law.
“ Share Settlement ” means a number of shares of Class A Common Stock (together with any Corresponding Rights) equal to the number of Redeemed Units.
“ Stock Exchange ” means the New York Stock Exchange.
“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any
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contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the voting interests thereof are at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, references to a “Subsidiary” of the Company shall be given effect only at such times that the Company has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.
“ Substituted Limited Partner ” means a Person that is admitted as a Limited Partner to the Company pursuant to Section 12.01 .
“ Tax Distributions ” has the meaning set forth in Section 4.01(b)(i) .
“ Tax Receivable Agreement ” means that certain Tax Receivable Agreement, dated as of the Effective Date, by and among the Corporation and the Company, on the one hand, and the TRA Parties (as such term is defined in the Tax Receivable Agreement) party thereto, on the other hand (together with any joinder thereto from time to time by any successor or assign to any party to such agreement) (as it may be amended from time to time in accordance with its terms).
“ Taxable Year ” means the Company’s accounting period for U.S. federal income tax purposes determined pursuant to Section 9.02 .
“ Transfer ” (and, with a correlative meaning, “ Transferring ”) means any sale, transfer, assignment, redemption, pledge, encumbrance or other disposition of (whether directly or indirectly, whether with or without consideration and whether voluntarily or involuntarily or by operation of Law) (a) any interest (legal or beneficial) in any Equity Securities or (b) any equity or other interest (legal or beneficial) in any Partner if substantially all of the assets of such Partner consist solely of Units.
“ Treasury Regulations ” means the final, temporary and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period.
“ Unit ” means the fractional interest of a Partner in Profits, Losses and Distributions of the Company, and otherwise having the rights and obligations specified with respect to “Units” in this Agreement; provided, however , that any class or group of Units issued shall have the relative rights, powers and duties set forth in this Agreement applicable to such class or group of Units.
“ Unvested Corporate Shares ” means shares of Class A Common Stock issuable pursuant to awards granted under an Equity Plan that are not Vested Corporate Shares.
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“ Vested Corporate Shares ” means the shares of Class A Common Stock issued pursuant to awards granted under an Equity Plan that are vested pursuant to the terms thereof or any award or similar agreement relating thereto.
ARTICLE II.
ORGANIZATIONAL MATTERS
Section 2.01    Formation of Company . The Company was organized as a Delaware limited partnership on December 19, 2011 pursuant to the provisions of the Delaware Act. The Partners shall from time to time execute such documents as may be necessary to qualify the Company to do business in each jurisdiction where such qualification is necessary.
Section 2.02    Fourth Amended and Restated Limited Partnership Agreement . The Partners hereby execute this Agreement for the purpose of amending, restating and superseding the Prior LP Agreement in its entirety and otherwise establishing the affairs of the Company and the conduct of its business in accordance with the provisions of the Delaware Act. The Partners hereby agree that during the term of the Company set forth in Section 2.06 the rights and obligations of the Partners with respect to the Company shall be determined in accordance with the terms and conditions of this Agreement and the Delaware Act. No provision of this Agreement shall be in violation of the Delaware Act and to the extent any provision of this Agreement is in violation of the Delaware Act, such provision shall be void and of no effect to the extent of such violation without affecting the validity of the other provisions of this Agreement. Neither any Partner nor any other Person shall have appraisal rights with respect to any Units.
Section 2.03    Name . The name of the Company is “Lincoln International, LP”. The General Partner in its sole discretion may change the name of the Company at any time and from time to time. Notification of any such change shall be given to all of the Partners. The Company’s business may be conducted under its name and/or any other name or names deemed advisable by the General Partner.
Section 2.04    Purpose; Powers . The primary business and purpose of the Company shall be to engage in such activities as are permitted under the Delaware Act and determined from time to time by the General Partner in accordance with the terms and conditions of this Agreement. The Company shall have the power and authority to take (directly or indirectly through its Subsidiaries) any and all actions and engage in any and all activities necessary, appropriate, desirable, advisable, ancillary or incidental to accomplish the foregoing purpose.
Section 2.05    Principal Office; Registered Office . The principal office of the Company shall be located at 110 N. Wacker Drive, 51st Floor, Chicago, Illinois 60606. The Company may locate its place of business and registered office at any other place or places, within or outside of Illinois, as the General Partner may from time to time choose. The Company’s registered agent for service of process and the registered office are as stated in the Certificate. The registered office and registered agent may be changed from time to time by the General Partner by filing the address of the new registered office and/or the name of the new registered agent with the Delaware Secretary of State pursuant to the Delaware Act.
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Section 2.06    Term . The term of the Company commenced upon the filing of the Certificate in accordance with the Delaware Act and shall continue in perpetuity unless dissolved in accordance with the provisions of Article XIV or the Delaware Act.
ARTICLE III.
PARTNERS; UNITS; CAPITALIZATION
Section 3.01    Partners .
(a)    (i) In connection with the Reorganization Transactions, the Corporation acquired Original Units (which shall be recapitalized into Common Units pursuant to the Recapitalization in accordance with Section 3.03 ) and was admitted as a partner of the Company and hereby continues as a Partner and (ii) in connection with the IPO, the Corporation shall acquire additional Common Units in exchange for the IPO Net Proceeds and the Over-Allotment Option Net Proceeds, if applicable, pursuant to the IPO Common Unit Subscription Agreement.
(b)    The Company shall maintain a schedule setting forth: (i) the name and address of each Partner and (ii) the aggregate number of outstanding Units and the number and class of Units held by each Partner (such schedule, the “ Schedule of Partners ”). The applicable Schedule of Partners in effect as of the Effective Date and after giving effect to the Recapitalization, Reorganization and redemptions or exchanges of Common Units occurring in connection with the IPO is set forth as Schedule 2 to this Agreement. The Company shall also maintain a record of (1) the Capital Account of each Partner on the Effective Date, (2) the aggregate amount of cash Capital Contributions that has been made by the Partners with respect to their Units and (3) the Fair Market Value of any property other than cash contributed by the Partners with respect to their Units (including, if applicable, a description and the amount of any liability assumed by the Company or to which contributed property is subject) in its books and records. The Schedule of Partners may be updated by the General Partner without the consent of any Partner in the Company’s books and records from time to time, and as so updated, it shall be the definitive record of ownership of each Unit of the Company and all relevant information with respect to each Partner. The Company shall be entitled to recognize the exclusive right of a Person registered on its records as the owner of Units for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Units on the part of any other Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware Act or other applicable Law.
(c)    No Partner shall be required or, except as approved by the General Partner pursuant to Section 6.01 and in accordance with the other provisions of this Agreement, permitted to (i) loan any money or property to the Company (except for a loan by the Corporation pursuant to Section 3.04(c) ), (ii) borrow any money or property from the Company or (iii) make any additional Capital Contributions (except for a contribution by the Corporation pursuant to Section 3.04(c) or Section 3.04(d) ).
(d)    Each Partner (or transferee thereof) that is treated for U.S. federal income tax purposes as a partnership, S-corporation or grantor trust (or as a disregarded entity whose owner for U.S. federal income tax purposes is a partnership, S-corporation, or grantor trust), upon
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receipt of Common Units, represents that such Partner (or such owner of such Partner) was not formed or used for the principal purpose or as one of its principal purposes to permit the Company to satisfy the “private placement” safe harbor (as described in Treasury Regulation Section 1.7704-1(h)(3)).
Section 3.02    Units .
(a)    Interests in the Company shall be represented by Units, or such other securities of the Company, in each case as the General Partner may establish in its discretion in accordance with the terms and subject to the restrictions hereof. At the Effective Date, the Units shall be comprised of a single class of Common Units.
(b)    Subject to Section 3.04(a) , the General Partner may or may cause the Company to, without the vote or consent of any Partner or any other Person, (i) issue additional Common Units at any time in its sole discretion and (ii) create one or more classes or series of Units or preferred Units solely to the extent such new class or series of Units or preferred Units are substantially economically equivalent to a class of common or other stock of the Corporation or class or series of preferred stock of the Corporation, respectively.
(c)    Subject to Section 16.03(b) and Section 16.03(c) , the General Partner may amend this Agreement, without the consent of any Partner or any other Person, in connection with the creation and issuance of such classes or series of Units pursuant to Section 3.02(b) , Section 3.04(a) or Section 3.10 , as applicable.
Section 3.03    Recapitalization; the Corporation’s Capital Contribution; the Corporation’s Purchase of Common Units .
(a)    In order to effect the Recapitalization, the number of Original Units that were issued and outstanding and held by the Pre-IPO Partners prior to the Effective Date as set forth opposite the respective Pre-IPO Partner’s name in Schedule 1 are hereby recapitalized and converted, as of the Effective Date, and after giving effect to such recapitalization and conversion and the other transactions related to the Recapitalization, into the number of Common Units set forth opposite the name of the respective Partner on the Schedule of Partners attached hereto as Schedule 2 ( provided , for the avoidance of doubt, that the number of Common Units set forth on Schedule 2 includes the Common Units issued to the Corporation pursuant to the IPO Common Unit Subscription Agreement and obtained by the Corporation as part of the Reorganization Transactions), and such Common Units are hereby issued and outstanding as of the Effective Date and the holders of such Common Units hereby continue as partners of the Company (and, for the avoidance of doubt, are Partners hereunder) and the Company is hereby continued without dissolution.
(b)    Following the Recapitalization, the Company shall issue to the Corporation, and the Corporation shall acquire 20,604,046 newly issued Common Units in exchange for a portion of the IPO Net Proceeds payable to the Company upon consummation of the IPO pursuant to the IPO Common Unit Subscription Agreement, and such issuance of Common Units shall be reflected on the Schedule of Partners (the “ IPO Common Unit Subscription ”). In addition, to
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the extent the underwriters in the IPO exercise the Over-Allotment Option in whole or in part, upon the exercise of the Over-Allotment Option, the Corporation shall contribute a portion of the Over-Allotment Option Net Proceeds to the Company in exchange for newly issued Common Units pursuant to the IPO Common Unit Subscription Agreement, and such issuance of additional Common Units shall be reflected on the Schedule of Partners (the “ Over-Allotment Contribution ”). The number of Common Units issued in the Over-Allotment Contribution, if applicable, shall be equal to the number of shares of Class A Common Stock issued by the Corporation in such exercise of the Over-Allotment Option. For the avoidance of doubt, the Corporation shall be admitted as a Partner with respect to all Common Units (including those it acquired as part of the Reorganization Transactions) it holds from time to time. The parties hereto acknowledge and agree that the transactions described in this Section 3.03(b) shall result in a “revaluation of partnership property” and corresponding adjustments to Capital Account balances as described in Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations.
Section 3.04    Authorization and Issuance of Additional Units .
(a)    Except as otherwise determined by the General Partner:
(i)    the Company and the Corporation shall, notwithstanding any other provision of this Agreement, undertake all actions, including, without limitation, an issuance, reclassification, distribution, division, repurchase, redemption, cancellation or recapitalization, with respect to the Common Units and the Class A Common Stock, Class B Common Stock, Class C Common Stock or any other equity interests issued by the Company and/or Corporation, as applicable, to maintain at all times (i) a one-to-one ratio between the number of Common Units owned by the Corporation, directly or indirectly, and the number of outstanding shares of Class A Common Stock, (ii) a one-to-one ratio between the number of Common Units owned by the Partners and their Permitted Transferees (other than the Corporation and its Subsidiaries and the Controlling Partners and their Permitted Transferees), directly or indirectly, and the number of outstanding shares of Class B Common Stock owned by such Partners and Permitted Transferees, directly or indirectly, less the number of outstanding shares of Class C common stock owned by such Partners and Permitted Transferees, directly or indirectly, if any, (iii) a one-to-one ratio between the number of Common Units owned by the Controlling Partners and their Permitted Transferees, directly or indirectly, and the number of outstanding shares of Class C Common Stock owned by the Controlling Partners and their Permitted Transferees, directly or indirectly, less the number of outstanding shares of Class B common stock owned by such Partners and Permitted Transferees, directly or indirectly, if any, and (iv) a one-to-one ratio between the number of other equity interests in the Company owned by the Corporation, directly or indirectly, and the number of outstanding equity interests issued by the Corporation that are substantially economically equivalent to such other equity interests of the Company that are owned by the Corporation, in each case, disregarding, for purposes of maintaining the one-to-one ratio, (A) Unvested Corporate Shares (other than any Unvested Corporate Shares as to which an election has been made under Section 83(b) of the Code), (B) treasury stock or (C) preferred stock or other debt or equity securities (including, without
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limitation, warrants, options or rights) issued by the Corporation that are convertible into or exercisable or exchangeable for Class A Common Stock (except to the extent the net proceeds from such other securities, including any exercise or purchase price payable upon issuance, conversion, exercise or exchange thereof, has been contributed by the Corporation to the equity capital of the Company) (clauses (i) to (iv), the “ One-to-One Ratios ”).
(ii)    In the event the Corporation issues, transfers or delivers from treasury stock or repurchases or redeems Class A Common Stock in a transaction not contemplated in this Agreement, the General Partner and the Corporation shall, notwithstanding any other provision of this Agreement to the contrary, take, or cause to be taken, all actions such that, after giving effect to all such issuances, transfers, deliveries, repurchases or redemptions, the number of outstanding Common Units owned, directly or indirectly, by the Corporation shall equal on a one-for-one basis the number of outstanding shares of Class A Common Stock.
(iii)    In the event the Corporation issues, transfers or delivers from treasury stock or repurchases or redeems the Corporation’s preferred stock or other equity interests in a transaction not contemplated in this Agreement, the General Partner, the Company and the Corporation shall, notwithstanding any other provision of this Agreement to the contrary, take or cause to be taken all actions such that, after giving effect to all such issuances, transfers, deliveries, repurchases or redemptions, the Corporation, directly or indirectly, holds (in the case of any issuance, transfer or delivery) or ceases to hold (in the case of any repurchase or redemption) equity interests in the Company which (in the good faith determination by the General Partner) are in the aggregate substantially economically equivalent to the outstanding preferred stock or other equity interests of the Corporation so issued, transferred, delivered, repurchased or redeemed.
(iv)    The Company and the Corporation shall not undertake any subdivision (by any Common Unit split, stock split, Common Unit distribution, stock distribution, reclassification, division, recapitalization or similar event) or combination (by reverse Common Unit split, reverse stock split, reclassification, division, recapitalization or similar event) of the Common Units, Class A Common Stock, Class B Common Stock or Class C Common Stock or other equity interests in the Company or the Corporation, as applicable, that is not accompanied by an identical subdivision or combination of the Common Units, Class A Common Stock, Class B Common Stock or Class C Common Stock or other equity interests in the Company or Corporation, respectively, to maintain at all times the One-to-One Ratios, in each case, unless such action is necessary to maintain at all times the One-to-One Ratios.
(b)    The Company shall only be permitted to issue additional Common Units, and/or establish other classes or series of Units or other Equity Securities in the Company to the Persons and on the terms and conditions provided for in Section 3.02 , this Section 3.04 , Section 3.10 and Section 3.11 . Subject to the foregoing, the General Partner may cause the Company to issue
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additional Common Units authorized under this Agreement and/or establish other classes or series of Units or other Equity Securities in the Company at such times and upon such terms as the General Partner shall determine and the General Partner shall amend this Agreement as necessary in connection with the issuance of additional Common Units and admission of additional Partners under this Section 3.04 , in each case, without the requirement of any consent or acknowledgement of any other Partner or any other Person and notwithstanding anything to the contrary herein, including Section 16.03 .
(c)    Notwithstanding any other provision of this Agreement (including Section 3.04(a) ), if the Corporation acquires or holds any material amount of cash (or any obligations of the Company or a Subsidiary thereof in respect of any loans made by the Corporation to the Company or such Subsidiary) in excess of any monetary obligations it reasonably anticipates (such cash, “ Excess Cash ”, and such loan obligations, “ Excess Loan Receivables ” and, collectively, “ Excess Assets ”), the Corporation may, in its sole discretion, take, or cause to be taken, any actions with respect to any such Excess Assets and make, or cause to be made, any corresponding adjustments to the capitalization of the Corporation and/or the Company as the Corporation in good faith determines to be fair and reasonable to the equityholders of the Corporation and to the Partners to preserve the One-to-One Ratios and the intended economic effect of this Section 3.04 , Section 11.01 and the other provisions hereof (including, but not limited to, contributing (or causing to be contributed) or loaning (or causing to be loaned) any such Excess Assets to the Company and causing the Company to recapitalize its Common Units to reflect such contribution and maintain such One-to-One Ratios).
Section 3.05    Repurchase or Redemption of shares of Class A Common Stock .
(a)    Except as otherwise determined by the General Partner, if at any time, any shares of Class A Common Stock are repurchased or redeemed (whether by exercise of a put or call, automatically or by means of another arrangement) by the Corporation for cash, then the General Partner shall cause the Company, immediately prior to such repurchase or redemption of Class A Common Stock, to redeem a corresponding number of Common Units held (directly or indirectly) by the Corporation, at an aggregate redemption price equal to the aggregate purchase or redemption price of the shares of Class A Common Stock being repurchased or redeemed by the Corporation (plus any expenses related thereto) and upon such other terms as are the same for the shares of Class A Common Stock being repurchased or redeemed by the Corporation; provided , if the Corporation uses funds received from distributions from the Company or the net proceeds from an issuance of Class A Common Stock to fund such repurchase or redemption, then the Company shall cancel a corresponding number of Common Units held (directly or indirectly) by the Corporation for no consideration. Notwithstanding any provision to the contrary contained in this Agreement, neither the Company nor the Corporation shall make any repurchase, redemption or other acquisition if such repurchase, redemption or other acquisition or the corresponding repurchase, redemption or other acquisition at the other of the Company or the Corporation would violate any applicable Law.
(b)    Notwithstanding anything to the contrary herein, the Corporation may repurchase shares of Class A Common Stock using any portion of the proceeds received by the Corporation
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from any Tax Distribution, in which case the related Tax Distributions made to each Partner shall be in redemption of Common Units, pro rata according to the number of Common Units held by each Partner, such that the number of Common Units redeemed from the Corporation is equal to the number of shares of Class A Common Stock to be repurchased, and at the price per Common Unit equal to the price that is actually paid per share of Class A Common Stock in such repurchase(s). In such event, the Corporation shall, in addition, take such other action as is necessary to preserve the One-to-One Ratios.
Section 3.06    Certificates Representing Units; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Units .
(a)    Units shall not be certificated unless otherwise determined by the General Partner. If the General Partner determines that one or more Units shall be certificated, each such certificate shall be signed by or in the name of the Company, by the Chief Executive Officer, Chief Financial Officer, General Counsel, Secretary or any other officer designated by the General Partner, representing the number of Units held by such holder. Such certificate shall be in such form (and shall contain such legends) as the General Partner may determine. Any or all of such signatures on any certificate representing one or more Units may be a facsimile, engraved or printed, to the extent permitted by applicable Law. Unless otherwise determined by the General Partner, no Units shall be treated as a “security” within the meaning of Article 8 of the Uniform Commercial Code unless all Units then outstanding are certificated; notwithstanding anything to the contrary herein, including Section 16.03 , the General Partner is authorized to amend this Agreement in order for the Company to opt-in to the provisions of Article 8 of the Uniform Commercial Code without the consent or approval of any Partner of any other Person.
(b)    If Units are certificated, the General Partner may direct that a new certificate representing one or more Units be issued in place of any certificate theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon delivery to the General Partner of an affidavit of the owner or owners of such certificate, setting forth such allegation. The General Partner may require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Company a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
(c)    To the extent Units are certificated, upon surrender to the Company or the transfer agent of the Company, if any, of a certificate for one or more Units, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, in compliance with the provisions hereof, the Company shall issue a new certificate representing one or more Units to the Person entitled thereto, cancel the old certificate and record the transaction upon its books. Subject to the provisions of this Agreement, the General Partner may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, Transfer and registration of Units.
Section 3.07    Negative Capital Accounts . No Partner shall be required to pay to any other Partner or the Company any deficit or negative balance which may exist from time to time in such Partner’s Capital Account (including upon and after dissolution of the Company).
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Section 3.08    No Withdrawal . No Person shall be entitled to withdraw any part of such Person’s Capital Contribution or Capital Account or to receive any Distribution from the Company, except as expressly provided in this Agreement.
Section 3.09    Loans From Partners . Loans by Partners to the Company shall not be considered Capital Contributions. Subject to the provisions of Section 3.01(c) , the amount of any such loans shall be a debt of the Company to such Partner and shall be payable or collectible in accordance with the terms and conditions upon which such loans are made.
Section 3.10    Equity Plans . Nothing in this Agreement shall be construed or applied to preclude or restrain the General Partner or the Corporation from adopting, modifying or terminating an Equity Plan or from issuing shares of Class A Common Stock pursuant to any such plans. The Corporation may implement such Equity Plans and any actions taken under such Equity Plans (such as the grant or exercise of options to acquire shares of Class A Common Stock, or the issuance of Unvested Corporate Shares), whether taken with respect to or by an employee or other service provider of the Corporation, the Company or its Subsidiaries, in a manner determined by the Corporation, in accordance with the Policy Regarding Certain Equity Issuances attached to this Agreement as Exhibit C , which may be amended by the Corporation from time to time without the consent or approval of any Partner or any other Person. The General Partner may, without the consent of any Partner or any other Person and notwithstanding Section 16.03 , amend this Agreement (including Exhibit C ) as necessary or advisable in its sole discretion to adopt, implement, modify or terminate an Equity Plan. In the event of such an amendment by the General Partner, the Company shall provide notice of such amendment to the Partners. The Company is expressly authorized to issue Units (i) in accordance with the terms of any such Equity Plan, or (ii) in an amount equal to the number of shares of Class A Common Stock issued pursuant to any such Equity Plan, without any further act, approval or vote of any Partner or any other Persons.
Section 3.11    Dividend Reinvestment Plan, Cash Option Purchase Plan, Equity Plan or Other Plan . Except as may otherwise be provided in this Article III , all amounts received or deemed received by the Corporation in respect of any dividend reinvestment plan, cash option purchase plan, Equity Plan or subscription plan or agreement, either (a) shall be utilized by the Corporation to effect open market purchases of shares of Class A Common Stock, or (b) if the Corporation elects instead to issue new shares of Class A Common Stock with respect to such amounts, shall be contributed by the Corporation to the Company in exchange for additional Common Units. Upon such contribution, the Company shall issue to the Corporation a number of Common Units equal to the number of new shares of Class A Common Stock so issued.
ARTICLE IV.
DISTRIBUTIONS
Section 4.01    Distributions .
(a)     Distributable Cash; Other Distributions . To the extent permitted by applicable Law and hereunder, Distributions to Partners may be declared by the General Partner out of Distributable Cash or other funds or property legally available therefor in such amounts, at such
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time and on such terms (including the payment dates of such Distributions) as the General Partner in its sole discretion shall determine using such record date as the General Partner may designate. All Distributions made under this Section 4.01 shall be made to the Partners as of the close of business on such record date on a pro rata basis in accordance with each Partner’s Percentage Interest (other than, for the avoidance of doubt, any distributions made pursuant to Section 4.01(b)(v), Section 4.01(c) and Section 4.01(d) ) as of the close of business on such record date; provided, however , that the General Partner shall have the obligation to make Distributions as set forth in Sections 4.01(b) and 14.02 ; provided , further , that notwithstanding any other provision herein to the contrary, no distributions shall be made to any Partner to the extent such distribution would render the Company insolvent or violate the Delaware Act or other applicable Law. For purposes of the foregoing sentence, “insolvent” means the inability of the Company to meet its payment obligations when due. In furtherance of the foregoing, it is intended that the General Partner shall, to the extent permitted by applicable Law and hereunder, have the right in its sole discretion to cause the Company to make Distributions of Distributable Cash to the Partners pursuant to this Section 4.01(a) in such amounts as shall enable the Corporation to meet its obligations, including its obligations pursuant to the Tax Receivable Agreement (to the extent such obligations are not otherwise able to be satisfied as a result of Tax Distributions required to be made pursuant to Section 4.01(b) ). Notwithstanding anything to the contrary in this Section 4.01(a) , (i) the Company shall not make a distribution (other than Tax Distributions under Section 4.01(b) ) to any Partner in respect of any Common Units which remain subject to vesting conditions in accordance with any applicable Equity Plan or individual award agreement and (ii) with respect to any amounts that would otherwise have been distributed to a Partner but for the preceding clause (i), such amount shall be held in trust by the Company for the benefit of such Partner unless and until such time as such Common Units have vested in accordance with the applicable Equity Plan or individual award agreement, and within five (5) Business Days of such time, the Company shall distribute such amounts to such Partner.
(b)     Tax Distributions .
(i)    With respect to each Fiscal Year, the Company shall, to the extent it has Distributable Cash and is permitted by applicable Law or current or future debt agreements, make cash distributions (“ Tax Distributions ”) to each Partner in accordance with this Section 4.01(b) , and such Partner’s Assumed Tax Liability. Tax Distributions pursuant to this Section 4.01(b)(i) shall be estimated by the Company on a quarterly basis and, to the extent feasible, shall be distributed to the Partners (together with a statement showing the calculation of such Tax Distribution and an estimate of the Company’s net taxable income allocable to each Partner for such period) on a quarterly basis on April 15 th , June 15 th , September 15 th and December 15 th (or such other dates for which corporations or individuals are required to make quarterly estimated tax payments for U.S. federal income tax purposes, whichever is earlier) (each, a “ Quarterly Tax Distribution ”); provided , that the foregoing shall not restrict the Company from making a Tax Distribution on any other date as the Company determines is necessary to enable the Partners to timely make estimated income tax payments. Quarterly Tax Distributions shall take into account the estimated taxable income or loss of the Company for the Fiscal Year through the end of the relevant quarterly period. A final accounting for Tax
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Distributions shall be made for each Fiscal Year after the allocation of the Company’s actual net taxable income or loss has been determined and any shortfall in the amount of Tax Distributions a Partner received for such Fiscal Year based on such final accounting shall promptly be distributed to such Partner. For the avoidance of doubt, (A) any excess Tax Distributions a Partner receives with respect to any Fiscal Year shall reduce future Tax Distributions otherwise required to be made to such Partner with respect to any subsequent Fiscal Year and (B), Tax Distributions shall not be treated as an advance on any Distributions pursuant to Section 4.01(a). Notwithstanding anything to the contrary in this Agreement, the General Partner shall make, in its reasonable discretion, equitable adjustments (downward (but not below zero) or upward) to the Partners’ Tax Distributions to take into account increases or decreases in the number of Common Units held by each Partner during the relevant taxable period or portion thereof; provided that any such equitable adjustments are made in a manner that results in Tax Distributions being made pro rata in proportion to the Partners’ respective Percentage Interests for any relevant taxable period or portion thereof.
(ii)    To the extent a Partner otherwise would be entitled to receive less than its Percentage Interest of the aggregate Tax Distributions to be paid pursuant to this Section 4.01(b) (other than the last sentence of this Section 4.01(b)(ii) in respect of a shortfall or any distributions made pursuant to Section 4.01(b)(iv) ) on any given date, the Tax Distributions to such Partner shall be increased to ensure that all Tax Distributions made pursuant to this Section 4.01(b) are made pro rata in accordance with the Partners’ respective Percentage Interests; provided that, notwithstanding anything to the contrary, to the extent an immaterial portion of any Tax Distribution to any Partner determined in accordance with this Section 4.01(b) would have the effect of resulting in a material amount of excess Tax Distributions to the Corporation, in each case, as determined by the General Partner in its sole discretion, the Company shall be permitted to adjust Tax Distributions to minimize such excess Tax Distributions to the Corporation. If, on the date of a Tax Distribution, there is insufficient Distributable Cash on hand to distribute to the Partners the full amount of the Tax Distributions to which such Partners are otherwise entitled, Distributions pursuant to this Section 4.01(b) shall be made to the Partners to the extent of available funds in accordance with their Percentage Interests and the Company shall make future Tax Distributions in accordance with the Partners’ Percentage Interests at the time of such shortfalls as soon as sufficient Distributable Cash become available to pay the remaining portion of the Tax Distributions to which such Partners are otherwise entitled.
(iii)    In the event of any audit by, or similar event with, a taxing authority that affects the calculation of any Partner’s Assumed Tax Liability for any Taxable Year (other than an audit conducted pursuant to the Partnership Audit Provisions for which no election is made pursuant to Section 6226 thereof and the Treasury Regulations promulgated thereunder), or in the event the Company files an amended tax return or administrative adjustment requests, each Partner’s Assumed Tax Liability with respect to such year shall be recalculated by giving effect to such event (for the avoidance of doubt, taking into account interest or penalties). Any shortfall in the amount of Tax
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Distributions the Partners and former Partners received for the relevant Taxable Years based on such recalculated Assumed Tax Liability promptly shall be distributed to such Partners and the successors of such former Partners in accordance with the applicable Partners’ and former Partners’ Percentage Interests at the time of such shortfalls, except, for the avoidance of doubt, to the extent Distributions were made to such Partners and former Partners pursuant to Section 4.01(a) and this Section 4.01(b) in the relevant Taxable Years sufficient to cover such shortfall.
(iv)    Notwithstanding the foregoing and anything to the contrary in this Agreement, a final accounting for distributions under Section 5.2 of the Prior LP Agreement in respect of the taxable income of the Company for the Fiscal Years (or portions thereof) of the Company that end on or prior to the Effective Date shall be made by the Company following the closing date of the IPO and, based on such final accounting, the Company shall make a distribution to the Pre-IPO Partners (or in the case of any Pre-IPO Partner that no longer exists, the successor of such Pre-IPO Partner) in accordance with the applicable terms of the Prior LP Agreement to the extent of any shortfall in the amount of distributions the Pre-IPO Partners received prior to the Effective Date under Section 5.2 of the Prior LP Agreement with respect to taxable income of the Company for such portion of such Fiscal Year that shall be allocated to the Pre-IPO Partners pursuant to Section 706 of the Code. For the avoidance of doubt, the amount of distributions to be made pursuant to this Section 4.01(b)(iv) shall be calculated pursuant to Section 5.2 of the Prior LP Agreement.
(c)     Pre-IPO Distributable Amounts . Notwithstanding the foregoing and anything to the contrary in this Agreement, the Company shall be permitted to make a distribution to the Partners with respect to any amounts distributable to such Partners pursuant to and in accordance with the Pre-IPO Distribution Agreements. For the avoidance of doubt, such distributions pursuant to this Section 4.01(c) and the Pre-IPO Distribution Agreements shall not be required to be made to all Partners on a pro rata basis in accordance with each Partner’s Percentage Interest and shall not be treated as an advance on any other Distributions pursuant to this Agreement.
(d)     Clawback Payments Due Pursuant to Prior LP Agreement . Notwithstanding the foregoing and anything to the contrary in this Agreement, the Company shall be permitted to make a distribution or payment to certain Partners and/or Persons previously a party to the Prior LP Agreement with respect to any Clawback Payments (as such term is defined in the Prior LP Agreement) due to such Partners or Persons pursuant to and in accordance with Section 9.13 of the Prior LP Agreement. In the event the Company’s obligation to make a Clawback Payment pursuant to Section 9.13 of the Prior LP Agreement is satisfied with Class A Common Stock, (i) the Corporation shall or shall be deemed to have contributed such shares of Class A Common Stock to the Company in exchange for newly issued Common Units of the Company and (ii) the Company shall or shall be deemed to have transferred such shares of Class A Common Stock to the recipient of the Clawback Payment in satisfaction of the Company’s obligation to make such payment pursuant to Section 9.13 of the Prior LP Agreement. For the avoidance of doubt, such distributions or payments pursuant to this Section 4.01(d) and Section 9.13 of the Prior LP Agreement shall not be required to be made to all Partners on a pro rata basis in accordance with
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each Partner’s Percentage Interest and shall not be treated as an advance on any other Distributions pursuant to this Agreement.
ARTICLE V.
CAPITAL ACCOUNTS; ALLOCATIONS; TAX MATTERS
Section 5.01    Capital Accounts .
(a)    The Company shall maintain a separate Capital Account for each Partner according to the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). For this purpose, the Company may (in the discretion of the General Partner), upon the occurrence of the events specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance with the rules of such Treasury Regulation and Treasury Regulation Section 1.704-1(b)(2)(iv)(g) to reflect a revaluation of the Company’s property.
(b)    For purposes of computing the amount of any item of income, gain, loss or deduction with respect to the Company to be allocated pursuant to this Article V and to be reflected in the Capital Accounts of the Partners, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes (including any method of depreciation, cost recovery or amortization used for this purpose); provided, however , that:
(i)    The computation of all items of income, gain, loss and deduction shall include those items described in Code Section 705(a)(l)(B) or Code Section 705(a)(2)(B) and Treasury Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are not includible in gross income or are not deductible for U.S. federal income tax purposes.
(ii)    If the Book Value of any property of the Company is adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property.
(iii)    Items of income, gain, loss or deduction attributable to the disposition of property of the Company having a Book Value that differs from its adjusted basis for tax purposes shall be computed by reference to the Book Value of such property.
(iv)    Items of depreciation, amortization and other cost recovery deductions with respect to property of the Company having a Book Value that differs from its adjusted basis for tax purposes shall be computed by reference to the property’s Book Value in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
(v)    To the extent an adjustment to the adjusted tax basis of any asset of the Company pursuant to Code Sections 732(d), 734(b) or 743(b) is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts
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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).
Section 5.02    Allocations .
After giving effect to the allocations in Section 5.03 , Net Profit and Net Loss (and, to the extent necessary, individual items of income, gain, loss, deduction or credit) of the Company for each applicable Fiscal Year or Fiscal Period shall be allocated among the Partners during such Fiscal Year or Fiscal Period in a manner such that the Adjusted Capital Account of each Partner, immediately after making such allocation, is, as nearly as possible, equal to the distributions that would be made to such Partner pursuant to Section 14.02(c) if the Company were dissolved, its affairs wound up and its assets sold for cash equal to their Book Value, all Company liabilities were satisfied (limited with respect to each nonrecourse liability to the Book Value of the assets securing such liability), and the net assets of the Company were distributed, in accordance with Section 14.02(c) , to the Partners immediately after making such allocation. Notwithstanding the foregoing, the General Partner may make allocations it (acting reasonably and in good faith) deems necessary to give economic effect to the provisions in Article V , Article XIV and the other relevant provisions of this Agreement and to properly reflect each Partner’s “interest in the partnership” within the meaning of Treasury Regulation Section 1.704-1(b)(3).
Section 5.03    Special Allocations .
(a)    Losses attributable to partner nonrecourse debt (as defined in Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner required by Treasury Regulation Section 1.704-2(i). If there is a net decrease during a Taxable Year in partner nonrecourse debt minimum gain (as defined in Treasury Regulation Section 1.704-2(i)(3)), Profits for such Taxable Year (and, if necessary, for subsequent Taxable Years) shall be allocated to the Partners in the amounts and of such character as determined according to Treasury Regulation Section 1.704-2(i)(4). This Section 5.03(a) is intended to be a partner nonrecourse debt minimum gain chargeback provision that complies with the requirements of Treasury Regulation Section 1.704-1(i) and shall be interpreted in a manner consistent therewith.
(b)    Nonrecourse deductions (as determined according to Treasury Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be allocated pro rata among the Partners in accordance with their Percentage Interests. Except as otherwise provided in Section 5.03(a) , if there is a net decrease in the Minimum Gain during any Taxable Year, each Partner shall be allocated Profits for such Taxable Year (and, if necessary, for subsequent Taxable Years) in the amounts and of such character as determined according to Treasury Regulation Section 1.704-2(f). This Section 5.03(b) is intended to be a minimum gain chargeback provision that complies with the requirements of Treasury Regulation Section 1.704-2(f) and shall be interpreted in a manner consistent therewith.
(c)    If any Partner that unexpectedly receives an adjustment, allocation or Distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as of the end of any Taxable Year, computed after the application of Sections 5.03(a) and 5.03(b) but before the application of any other provision of this Article V ,
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then Profits for such Taxable Year shall be allocated to such Partner in proportion to, and to the extent of, such Adjusted Capital Account Deficit. This Section 5.03(c) is intended to be a qualified income offset provision as described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d)    If the allocation of Net Losses to a Partner as provided in Section 5.02 would create or increase an Adjusted Capital Account Deficit, there shall be allocated to such Partner only that amount of Losses as will not create or increase an Adjusted Capital Account Deficit. The Net Losses that would, absent the application of the preceding sentence, otherwise be allocated to such Partner shall be allocated to the other Partners in accordance with their relative Percentage Interests, subject to this Section 5.03(d) .
(e)    In the event that any Partner has an Adjusted Capital Account Deficit at the end of any applicable Fiscal Year or Fiscal Period, such Partner shall be allocated items of Company gross income, and gain in the amount of such deficit as quickly as possible; provided, however, that an allocation pursuant to this Section 5.03(e) shall be made only if and to the extent that such Partner would have an Adjusted Capital Account Deficit after all other allocations provided for in Sections 5.02 and 5.03 have been tentatively made as if Section 5.03(c) and this Section 5.03(e) were not in this Agreement.
(f)    Profits and Losses described in Section 5.01(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital Accounts are required to be made pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(j), (k) and (m).
(g)    The allocations set forth in Section 5.03(a) through and including Section 5.03(f) (the “ Regulatory Allocations ”) are intended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the Partners intend to allocate Profit and Loss of the Company or make Distributions. Accordingly, notwithstanding the other provisions of this Article V , but subject to the Regulatory Allocations, income, gain, deduction and loss with respect to the Company shall be reallocated among the Partners so as to eliminate the effect of the Regulatory Allocations and thereby cause the respective Capital Accounts of the Partners to be in the amounts (or as close thereto as possible) they would have been if Profit and Loss (and such other items of income, gain, deduction and loss) had been allocated without reference to the Regulatory Allocations. In general, the Partners anticipate that this shall be accomplished by specially allocating other Profit and Loss (and such other items of income, gain, deduction and loss) among the Partners so that the net amount of the Regulatory Allocations and such special allocations to each such Partner is zero. In addition, if in any Fiscal Year or Fiscal Period there is a decrease in partnership minimum gain, or in partner nonrecourse debt minimum gain, and application of the minimum gain chargeback requirements set forth in Section 5.03(a) or Section 5.03(b) would cause a distortion in the economic arrangement among the Partners, the Partners may, if they do not expect that the Company will have sufficient other income to correct such distortion, request the Internal Revenue Service to waive either or both of such minimum gain chargeback requirements pursuant to Treasury Regulations Section 1.704-2(f)(4). If such request
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is granted, this Agreement shall be applied in such instance as if it did not contain such minimum gain chargeback requirement.
(h)     If any holder of Common Units which are subject to vesting conditions forfeits (or the Company has repurchased at less than fair market value) all or a portion of such holder’s unvested Common Units, the Company shall make forfeiture allocations in respect of such unvested Common Units in the manner and to the extent required by Proposed Treasury Regulation Section 1.704-1(b)(4)(xii) (as such Proposed Treasury Regulations may be amended or modified, including upon the issuance of temporary or final Treasury Regulations).
(i) With respect to any Fiscal Year or Fiscal Period in which distributions are made to Partners pursuant to Section 4.01(c) and the Pre-IPO Distribution Agreements, Net Profit (and, to the extent necessary, individual items of income and gain) or tax items of income or gain of the Company for such applicable Fiscal Year or Fiscal Period in an amount equal to such distributions shall be specially allocated to the Partners to which such distributions are made, in each case, as reasonably determined by the General Partner.
Section 5.04    Tax Allocations .
(a)    The income, gains, losses, deductions and credits of the Company shall be allocated, for federal, state and local income tax purposes, among the Partners in accordance with the allocation of such income, gains, losses, deductions and credits among the Partners for computing their Capital Accounts; provided that if any such allocation is not permitted by the Code or other applicable Law, the Company’s subsequent income, gains, losses, deductions and credits shall be allocated among the Partners so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts.
(b)    Items of taxable income, gain, loss and deduction of the Company with respect to any property contributed to the capital of the Company shall be allocated among the Partners in accordance with Code Section 704(c) so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its Book Value using any method permitted under applicable Law (including the “traditional method with curative allocations limited to back end gain on sale” set forth in Treasury Regulation Section 1.704-3(c)) with such choice of method to be determined in the discretion of the Company.
(c)    If the Book Value of any asset of the Company is adjusted pursuant to Section 5.01(b) , including adjustments to the Book Value of any asset of the Company in connection with the execution of this Agreement, subsequent allocations of items of taxable income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Book Value using any method permitted under applicable Law (including the “traditional method with curative allocations limited to back end gain on sale” set forth in Treasury Regulation Section 1.704-3(c) with such choice of method to be determined in the discretion of the Company.
(d)    Allocations of tax credits, tax credit recapture, and any items related thereto shall be allocated to the Partners as determined by the General Partner taking into account the principles of Treasury Regulation Section 1.704-1(b)(4)(ii).
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(e)    For purposes of determining a Partner’s share of the Company’s “excess nonrecourse liabilities” within the meaning of Treasury Regulation Section 1.752-3(a)(3), each Partner’s interest in income and gain shall be determined pursuant to any proper method, as reasonably determined by the General Partner; provided , that each year the General Partner shall use its reasonable best efforts (using in all instances any proper method permitted under applicable Law, including without limitation the “additional method” described in Treasury Regulation Section 1.752-3(a)(3)) to allocate a sufficient amount of the excess nonrecourse liabilities to those Partners who would have at the end of the applicable Taxable Year, but for such allocation, taxable income due to the deemed distribution of money to such Partner pursuant to Section 752(b) of the Code that is in excess of such Partner’s adjusted tax basis in its Units.
(f)    In the event any Common Units issued pursuant to Section 1(b) of the Policy Regarding Certain Equity Issuances attached to this Agreement as Exhibit C are subsequently forfeited, the Company may make forfeiture allocations with respect to such Common Units in the Taxable Year of such forfeiture in accordance with the principles of proposed Treasury Regulations Section 1.704-1(b)(4)(xii)(c), taking into account any amendments thereto and any temporary or final Treasury Regulations issued pursuant thereto.
(g)    Allocations pursuant to this Section 5.04 are solely for purposes of U.S. federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Partner’s Capital Account or share of Profits, Losses, Distributions or other items of the Company pursuant to any provision of this Agreement.
Section 5.05    Indemnification and Reimbursement for Payments on Behalf of a Partner . The Company is authorized at all times to make payments with respect to each Partner in amounts required to discharge any obligation of the Company (as determined by the General Partner) to withhold or make payments to any Governmental Entity with respect to any distribution or allocation by the Company of income or gain to such Partner and to withhold the same from distributions to such Partner. Except as otherwise determined by the General Partner, if the Company or any other Person in which the Company holds an interest is obligated to pay any amount to a Governmental Entity (or otherwise makes a payment to a Governmental Entity) that is specifically attributable to a Partner or a Partner’s status as such (including federal income taxes, additions to tax, interest and penalties as a result of obligations of the Company pursuant to the Partnership Audit Provisions, federal withholding taxes, state personal property taxes and state unincorporated business taxes, but excluding payments such as payroll taxes, withholding taxes, benefits or professional association fees and the like required to be made or made voluntarily by the Company on behalf of any Partner based upon such Partner’s status as an employee of the Company), then such Partner shall indemnify the Company in full for the entire amount paid (including interest, penalties and related expenses). The General Partner may offset Distributions to which a Partner is otherwise entitled under this Agreement against such Partner’s obligation to indemnify the Company under this Section 5.05 . In addition, notwithstanding anything to the contrary, each Partner agrees that any Cash Settlement such Partner is entitled to receive pursuant to Article XI may be offset by an amount equal to such Partner’s obligation to indemnify the Company under this Section 5.05 and that such Partner shall be treated as receiving the full amount of such Cash Settlement and paying to the Company an amount equal
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to such obligation. A Partner’s obligation to make payments to the Company under this Section 5.05 shall survive the transfer or termination of any Partner’s interest in any Units of the Company, the termination of this Agreement and the dissolution, liquidation, winding up and termination of the Company. In the event that the Company has been terminated prior to the date such payment is due, such Partner shall make such payment to the General Partner (or its designee), which shall distribute such funds in accordance with this Agreement. The Company may pursue and enforce all rights and remedies it may have against each Partner under this Section 5.05 , including instituting a lawsuit to collect such contribution with interest calculated at a rate per annum equal to the sum of the Base Rate plus 300 basis points (but not in excess of the highest rate per annum permitted by Law). Each Partner hereby agrees to furnish to the Company such information and forms as required or reasonably requested in order to comply with any Laws and regulations governing withholding of tax or in order to claim any reduced rate of, or exemption from, withholding to which the Partner is legally entitled. The Company may withhold any amount that it determines is required to be withheld from any amount otherwise payable to any Partner hereunder, and any such withheld amount shall be deemed to have been paid to such Partner for purposes of this Agreement, unless otherwise reimbursed by such Partner under this Section 5.05 . 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 that are attributable to income or gain that is (or otherwise would be) passed through to the Partners under applicable Law shall be treated as specifically attributable to the Partners and shall be allocated among the Partners such that the burden of (or any diminution in distributable proceeds resulting from) any such amounts is borne by those Partners to whom such amounts are specifically attributable, in each case as reasonably determined by the General Partner.
ARTICLE VI.
MANAGEMENT
Section 6.01    Authority of General Partner; Officer Delegation .
(a)    Except for situations in which the approval of any Partner(s) is specifically required by this Agreement, (i) all management powers over the business and affairs of the Company shall be exclusively vested in the Corporation, as the sole general partner of the Company (the Corporation and its successors and assigns, in such capacity, the “ General Partner ”), (ii) the General Partner shall conduct, direct and exercise full control over all activities of the Company and (iii) no other Partner shall have any right, authority or power to vote, consent or approve any matter, whether under the Delaware Act, this Agreement or otherwise. The General Partner shall be the “general partner” of the Company for the purposes of the Delaware Act. Except as otherwise expressly provided for herein and subject to the other provisions of this Agreement, the Partners hereby consent to the exercise by the General Partner of all such powers and rights conferred on the Partners by the Delaware Act with respect to the management and control of the Company. Any vacancies in the position of General Partner shall be filled in accordance with Section 6.04 .
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(b)    Without limiting the authority of the General Partner to act on behalf of the Company, the day-to-day business and operations of the Company shall be overseen and implemented by officers of the Company (each, an “ Officer ” and collectively, the “ Officers ”), subject to the limitations imposed by the General Partner. An Officer may, but need not, be a Partner. Each Officer shall be appointed by the General Partner and shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. At the Effective Date, the Officers shall be the officers of the General Partner with the same titles and responsibilities and shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. Any one Person may hold more than one office. Subject to the other provisions of this Agreement (including in Section 6.07 below), the salaries or other compensation, if any, of the Officers of the Company shall be fixed from time to time by the General Partner. The authority and responsibility of the Officers shall be limited to such duties as the General Partner may, from time to time, delegate to them. Unless the General Partner decides otherwise, if the title is one commonly used for officers of a business corporation formed under the General Corporation Law of the State of Delaware, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. All Officers shall be, and shall be deemed to be, officers of the Company. An Officer may also perform one or more roles as an officer of the General Partner. Any Officer may be removed at any time, with or without cause, by the General Partner.
(c)    Subject to the other provisions of this Agreement, the General Partner shall have the power and authority to effectuate the sale, lease, transfer, exchange or other disposition of any, all or substantially all of the assets of the Company (including the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company) or the merger, consolidation, conversion, division, reorganization or other combination of the Company with or into another entity, for the avoidance of doubt, without the prior consent of any Partner or any other Person being required.
Section 6.02    Actions of the General Partner . The General Partner may act through any Officer or through any other Person or Persons to whom authority and duties have been delegated pursuant to Section 6.07 .
Section 6.03    Resignation; No Removal . The General Partner may resign at any time by giving written notice to the Limited Partners. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Limited Partners, and the acceptance of the resignation shall not be necessary to make it effective. For the avoidance of doubt, the Limited Partners have no right under this Agreement to remove or replace the General Partner.
Section 6.04    Vacancies . Vacancies in the position of general partner occurring for any reason shall be filled by the Corporation (or, if the Corporation has ceased to exist without any successor or assign, then by the holders of a majority in interest of the voting capital stock of the Corporation immediately prior to such cessation). For the avoidance of doubt, the Partners
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(other than the Corporation in its capacity as General Partner) have no right under this Agreement to fill any vacancy in the position of general partner.
Section 6.05    Transactions Between the Company and the General Partner . The General Partner may cause the Company to contract and deal with the General Partner, or any Affiliate of the General Partner, provided , that 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 Partners (other than the General Partner and its Affiliates) and otherwise are permitted by the Credit Agreements; provided , that the foregoing shall in no way limit the General Partner’s rights under Sections 3.02 , 3.04 , 3.05 or 3.10 . The Partners hereby approve each of the contracts or agreements between or among the General Partner, the Company and their respective Affiliates entered into on or prior to the date of this Agreement in accordance with the Prior LP Agreement or that the partners of the Company or the Corporate Board has approved in connection with the Recapitalization or the IPO as of the date of this Agreement, including, but not limited to, the IPO Common Unit Subscription Agreement and the Tax Receivable Agreement.
Section 6.06    Reimbursement for Expenses . The General Partner shall not be compensated for its services as General Partner of the Company except as expressly provided in this Agreement. The Partners acknowledge and agree that, upon consummation of the IPO, the General Partner’s Class A Common Stock shall be publicly traded and therefore the General Partner shall have access to the public capital markets and that such status and the services performed by the General Partner shall inure to the benefit of the Company and all Partners; therefore, unless otherwise determined by the General Partner, the General Partner and the Corporation shall be reimbursed by the Company for any reasonable out-of-pocket expenses incurred on behalf of the Company, including without limitation all fees, expenses and costs associated with the IPO and all fees, expenses and costs of being a public company (including without limitation public reporting obligations, proxy statements, stockholder meetings, Stock Exchange fees, transfer agent fees, legal fees, SEC and FINRA filing fees and offering expenses and any excise taxes imposed pursuant to Section 4501 of the Code) and maintaining its corporate existence. In the event that shares of Class A Common Stock are sold to underwriters in the IPO (or in any Qualifying Offering) at a price per share that is lower than the price per share for which such shares of Class A Common Stock are sold to the public in the IPO (or in such subsequent Qualifying Offering, as applicable) after taking into account underwriters’ discounts or commissions and brokers’ fees or commissions (such difference, the “ Discount ”) (i) the General Partner shall be deemed to have contributed to the Company in exchange for newly issued Common Units the full amount for which such shares of Class A Common Stock were sold to the public and (ii) the Company shall be deemed to have paid the Discount as an expense. To the extent practicable, expenses incurred by the General Partner on behalf of or for the benefit of the Company shall be billed directly to and paid by the Company and, if and to the extent any reimbursements to the General Partner or any of its Affiliates by the Company pursuant to this Section 6.06 constitute gross income to such Person (as opposed to the repayment of advances made by such Person on behalf of the Company), such amounts shall be treated as “guaranteed payments” within the meaning of Code Section 707(c) and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts. Notwithstanding the foregoing, the
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Company shall not bear any income tax obligations of the General Partner or any payments made pursuant to the Tax Receivable Agreement (for the avoidance of doubt, other than pursuant to Tax Distributions made to the Corporation).
Section 6.07    Delegation of Authority . The General Partner (a) may, from time to time, delegate to one or more Persons such authority and duties as the General Partner may deem advisable, and (b) may assign titles (including, without limitation, chief executive officer, president, chief financial officer, chief operating officer, general counsel, senior vice president, vice president, secretary, assistant secretary, treasurer or assistant treasurer) and delegate certain authority and duties to such Persons which may be amended, restated or otherwise modified from time to time. Any number of titles may be held by the same individual. The salaries or other compensation, if any, of such agents of the Company shall be fixed from time to time by the General Partner, subject to the other provisions in this Agreement.
Section 6.08    Limitation of Liability of General Partner .
(a)    Except as otherwise provided herein or in an agreement entered into by such Person and the Company, neither the General Partner nor any of the General Partner’s Affiliates or the General Partner’s officers, employees or other agents shall be liable to the Company, to any Partner or to any other Person bound by this Agreement for any act or omission performed or omitted by the General Partner or such Person in its capacity as the sole general partner of the Company or as an Affiliate, officer, employee or other agent of the General Partner, as applicable, pursuant to authority granted to the General Partner by this Agreement; provided, however , that, except as otherwise provided herein, such limitation of liability shall not apply to the extent the act or omission was attributable to the General Partner’s willful misconduct or knowing violation of Law or for any present or future material breaches of any representations, warranties or covenants by the General Partner or its Affiliates contained herein or in the Other Agreements with the Company. The General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and shall not be responsible for any misconduct or negligence on the part of any such agent (so long as such agent was selected in good faith and with reasonable care). The General Partner and each of its Affiliates, officers, employees and other agents shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, as to matters such Person reasonably believes are within such other Person's professional or expert competence and any act of or failure to act by the General Partner or such other Person in good faith reliance on such advice shall in no event subject the General Partner or such other Person to liability to the Company or any Partner or to any other Person bound by this Agreement.
(b)    To the fullest extent permitted by applicable Law, whenever this Agreement or any other agreement contemplated herein provides that the General Partner shall act in a manner which is, or provide terms which are, “fair and reasonable” to the Company or any Partner that is not the General Partner, the General Partner shall determine such appropriate action or provide such terms considering, in each case, the relative interests of each party to such agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or
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accepted industry practices, and any applicable United States generally accepted accounting practices or principles, notwithstanding any other provision of this Agreement or in any agreement contemplated herein or applicable provisions of Law or equity or otherwise.
(c)    To the fullest extent permitted by applicable Law and notwithstanding any other provision of this Agreement or in any agreement contemplated herein or applicable provisions of Law or equity or otherwise, whenever in this Agreement or any other agreement contemplated herein, the General Partner is permitted or required to take any action or to make a decision in its “sole discretion” or “discretion,” with “complete discretion,” with its “approval” or “consent” or under a grant of similar authority or latitude, the General Partner shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company, other Partners or any other Person.
(d)    To the fullest extent permitted by applicable Law and notwithstanding any other provision of this Agreement or in any agreement contemplated herein or applicable provisions of law or equity or otherwise, (i) whenever in this Agreement the General Partner is permitted or required to take any action or to make a decision in “good faith” or under another express standard, the General Partner shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein, and (ii) so long as the General Partner acts in good faith or in accordance with such other express standard, the resolution, action or terms so made, taken or provided by the General Partner shall not constitute a breach of this Agreement or impose liability upon the General Partner or any of the General Partner’s Affiliates and shall be deemed approved by all Partners.
Section 6.09    Investment Company Act . The General Partner shall use its best efforts to ensure that the Company shall not be subject to registration as an investment company pursuant to the Investment Company Act.
ARTICLE VII.
RIGHTS AND OBLIGATIONS OF PARTNERS AND GENERAL PARTNER
Section 7.01    Limitation of Liability and Duties of Partners and General Partner .
(a)    Except as provided in this Agreement or in the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and no Partner or General Partner shall be obligated personally for any such debts, obligations, contracts or liabilities of the Company solely by reason of being a Partner or the General Partner. Notwithstanding anything contained herein to the contrary, to the fullest extent permitted by applicable Law, 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 Agreement or the Delaware Act shall not be grounds for imposing personal liability on the Partners or the General Partner for liabilities of the Company.
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(b)    In accordance with the Delaware Act and the laws of the State of Delaware, a Partner may, under certain circumstances, be required to return amounts previously distributed to such Partner. It is the intent of the Partners that no Distribution to any Partner pursuant to Articles IV or XIV shall be deemed a return of money or other property paid or distributed in violation of the Delaware Act. The payment of any such money or Distribution of any such property to a Partner shall be deemed to be a compromise within the meaning of Section 17-502(b) of the Delaware Act, and, to the fullest extent permitted by Law, any Partner receiving any such money or property shall not be required to return any such money or property to the Company or any other Person, unless such distribution was made by the Company to its Partners in clerical error. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Partner is obligated to make any such payment, such obligation shall be the obligation of such Partner and not of any other Partner.
(c)    To the fullest extent permitted by applicable Law, including Section 17-1101(d) of the Delaware Act, and notwithstanding any other provision of this Agreement (but subject, and without limitation, to Section 6.08 with respect to the General Partner) or in any agreement contemplated herein or applicable provisions of Law or equity or otherwise, the parties hereto hereby agree that to the extent that any Partner (other than the General Partner in its capacity as such) (or any Partner’s Affiliate or any manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of any Partner or of any Affiliate of a Partner) has duties (including fiduciary duties) to the Company, to the General Partner, to another Partner, to any Person who acquires an interest in a Unit or to any other Person bound by this Agreement, all such duties (including fiduciary duties) are hereby eliminated, to the fullest extent permitted by Law, and replaced with the duties or standards expressly set forth herein, if any; provided , however , that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The elimination of duties (including fiduciary duties) to the Company, the General Partner, each of the Partners, each other Person who acquires an interest in a Unit and each other Person bound by this Agreement and replacement thereof with the duties or standards expressly set forth herein, if any, are approved by the Company, the General Partner, each of the Partners, each other Person who acquires an interest in a Unit and each other Person bound by this Agreement.
Section 7.02    Lack of Authority . No Partner, other than the General Partner or a duly appointed Officer or other agent of the Company, in each case in its capacity as such, has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure on behalf of the Company. The Partners hereby consent to the exercise by the General Partner of the powers conferred on them by Law and this Agreement.
Section 7.03    No Right of Partition . No Partner, other than the General Partner (in its capacity as such), shall have the right to seek or obtain partition by court decree or operation of Law of any property of the Company, or the right to own or use particular or individual assets of the Company.
Section 7.04    Indemnification .
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(a)    Subject to Section 5.05 , the Company shall indemnify and hold harmless any Person (each an “ Indemnified Person ”) to the fullest extent permitted by applicable Law (including as it presently exists or may hereafter be amended, substituted or replaced but, to the fullest extent permitted by applicable law, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than such law permitted the Company to provide immediately prior to such amendment, substitution or replacement), against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, excise taxes or penalties, and amounts paid in settlement) reasonably incurred or suffered by such Person by reason of the fact that such Person is or was a Partner or an Affiliate thereof (other than as a result of an ownership interest in the Corporation) or is or was serving as the General Partner or a director, officer, employee or other agent of the General Partner, or a director, manager, Officer, employee or other agent of the Company or is or was serving at the request of the Company as a manager, officer, director, principal, member, employee or agent of another Person; provided, however , that no Indemnified Person shall be indemnified for any expenses, liabilities and losses suffered that are attributable to such Indemnified Person’s or its Affiliates’ willful misconduct or knowing violation of Law or for any present or future breaches of any representations, warranties or covenants by such Indemnified Person or its Affiliates contained herein or in Other Agreements with the Company. Reasonable expenses, including out-of-pocket attorneys’ fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company.
(b)    The right to indemnification and the advancement of expenses conferred in this Section 7.04 shall not be exclusive of any other right which any Person may have or hereafter acquire under any statute, agreement, bylaw, action by the General Partner or otherwise.
(c)    The Company shall maintain directors’ and officers’ liability insurance, or substantially equivalent insurance, at its expense, to protect any Indemnified Person against any expense, liability or loss described in Section 7.04(a) whether or not the Company would have the power to indemnify such Indemnified Person against such expense, liability or loss under the provisions of this Section 7.04 . The Company shall use its commercially reasonable efforts to purchase and maintain property, casualty and liability insurance in types and at levels customary for companies of similar size engaged in similar lines of business, as determined in good faith by the General Partner, and the Company shall use its commercially reasonable efforts to purchase directors’ and officers’ liability insurance (including employment practices coverage) with a carrier and in an amount determined necessary or desirable as determined in good faith by the General Partner.
(d)    The indemnification and advancement of expenses provided for in this Section 7.04 shall be provided out of and to the extent of Company assets only. No Partner (unless such Partner otherwise agrees in writing or is found in a non-appealable decision by a court of competent jurisdiction to have personal liability on account thereof) shall have personal liability
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on account thereof or shall be required to make additional Capital Contributions to help satisfy such indemnity of the Company. The Company (i) shall be the primary indemnitor of first resort for such Indemnified Person pursuant to this Section 7.04 and (ii) shall be fully responsible for the advancement of all expenses and the payment of all damages or liabilities with respect to such Indemnified Person which are addressed by this Section 7.04 .
(e)    If this Section 7.04 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Indemnified Person pursuant to this Section 7.04 to the fullest extent permitted by any applicable portion of this Section 7.04 that shall not have been invalidated and to the fullest extent permitted by applicable Law.
Section 7.05    Inspection Rights . The Company shall permit each Partner and each of its designated representatives at such Partner’s sole cost and expense to examine the books and records of the Company at the principal office of the Company or such other location as the General Partner shall reasonably approve during normal business hours and upon reasonable notice for any purpose reasonably related to such Partner’s interest as a partner of the Company; provided , that the General Partner has a right to keep confidential from the Partners certain information in accordance with Section 17-305 of the Delaware Act.
ARTICLE VIII.
BOOKS, RECORDS, ACCOUNTING AND REPORTS, AFFIRMATIVE COVENANTS
Section 8.01    Records and Accounting . The Company shall keep, or cause to be kept, appropriate books and records with respect to the Company’s business, including all books and records necessary to provide any information, lists and copies of documents required pursuant to applicable Laws. All matters concerning (a) the determination of the relative amount of allocations and Distributions among the Partners pursuant to Articles IV and V and (b) accounting procedures and determinations, and other determinations not specifically and expressly provided for by the terms of this Agreement, shall be determined by the General Partner, whose determination shall be final and conclusive as to all of the Partners absent manifest clerical error.
Section 8.02    Fiscal Year . The Fiscal Year of the Company shall end on December 31 of each year or such other date as may be established by the General Partner.
ARTICLE IX.
TAX MATTERS
Section 9.01    Preparation of Tax Returns . The General Partner shall arrange for the preparation and timely filing of all tax returns required to be filed by the Company. The General Partner shall use commercially reasonable efforts to furnish, within two hundred and forty (240) days of the close of each Taxable Year, to each Partner a completed IRS Schedule K-1 (and any comparable state income tax form) and such other information as is reasonably requested by such Partner relating to the Company that is necessary for such Partner to comply with its tax reporting obligations. Subject to the terms and conditions of this Agreement and except as
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otherwise provided in this Agreement, in its capacity as Partnership Representative, the Corporation shall have the authority to prepare the tax returns of the Company using such permissible methods and elections as it determines in its reasonable discretion, including without limitation the use of any permissible method under Section 706 of the Code for purposes of determining the varying Units of its Partners.
Section 9.02    Tax Elections . The Taxable Year shall be the Fiscal Year set forth in Section 8.02 , unless otherwise required by Section 706 of the Code. The General Partner shall cause the Company and each of its Subsidiaries that is treated as a partnership for U.S. federal income tax purposes to have in effect an election pursuant to Section 754 of the Code (or any similar provisions of applicable state, local or foreign tax Law) for the Taxable Year that includes the Effective Date and each subsequent Taxable Year. The General Partner shall take commercially reasonable efforts to cause each Person in which the Company owns a direct or indirect equity interest (other than a Subsidiary) that is so treated as a partnership to have in effect any such election for each Taxable Year. Each Partner shall upon request supply any information reasonably necessary to give proper effect to any such elections.
Section 9.03    Tax Controversies . The General Partner shall cause the Company to take all necessary actions required by Law to designate the Corporation as the “tax matters partner” of the Company within the meaning of Section 6231 of the Code (as in effect prior to repeal of such section pursuant to the Partnership Audit Provisions) with respect any Taxable Year beginning on or before December 31, 2017. The General Partner shall further cause the Company to take all necessary actions required by Law to designate the Corporation as the “partnership representative” of the Company as provided in Section 6223(a) of the Code with respect to any Taxable Year of the Company beginning after December 31, 2017, and the Corporation is hereby authorized to designate an individual to be the sole individual through which such entity “partnership representative” shall act (in such capacities, including in similar capacities under analogous provisions of state or local Law, collectively, the “ Partnership Representative ”). The Company and the Partners shall cooperate fully with each other and shall use reasonable best efforts to cause the Corporation (or its designated individual, as applicable) to become the Partnership Representative with respect to any taxable period of the Company with respect to which the statute of limitations has not yet expired (and causing any tax matters partner, partnership representative or designated individual designated prior to the Effective Date to resign, be revoked or replaced, as applicable), including (as applicable) by filing certifications pursuant to Treasury Regulation Section 301.6231(a)(7)-1(d) and completing IRS Form 8979 or any other form or certificate required pursuant to Treasury Regulation Section 301.6223-1(e)(1). The Partnership Representative shall have the right and obligation to take all actions authorized and required, by the Code and Treasury Regulations (and analogous provisions of state or local law) for the Partnership Representative and is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including any resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. Each Partner agrees to cooperate with the Company and the Partnership Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Partnership Representative with respect to the conduct of such proceedings. Without limiting the generality
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of the foregoing, with respect to any audit or other proceeding, the Partnership Representative shall be entitled to cause the Company (and any of its Subsidiaries) to make any available elections pursuant to Section 6226 of the Code (and similar provisions of state, local and other Law), and the Partners shall cooperate to the extent reasonably requested by the Company in connection therewith. The Company shall reimburse the Partnership Representative for all reasonable out-of-pocket expenses incurred by the Partnership Representative, including reasonable fees of any professional attorneys, in carrying out its duties as the Partnership Representative. The provisions of this Section 9.03 shall survive the transfer or termination of any Partner’s interest in any Units of the Company, the termination of this Agreement and the termination of the Company, and shall remain binding on each Partner for the period of time necessary to resolve all tax matters relating to the Company, and shall be subject to the provisions of the Tax Receivable Agreement, as applicable.
ARTICLE X.
RESTRICTIONS ON TRANSFER OF UNITS; CERTAIN TRANSACTIONS
Section 10.01    Transfers by Partners . No holder of Units shall Transfer any interest in any Units, except Transfers (a) pursuant to and in accordance with Sections 10.02 , 10.09 or Section 10.11 or (b) approved in advance and in writing by the General Partner, or its designee, in the case of Transfers by any Partner other than the General Partner, or (c) in the case of Transfers by the General Partner, to any Person who succeeds to the General Partner in accordance with Section 6.04 . Notwithstanding the foregoing, “Transfer” shall not include (i) an event that terminates the existence of a Partner for income tax purposes (including, without limitation, a change in entity classification of a Partner under Treasury Regulation Section 301.7701-3, a sale of assets by, or liquidation of, a Partner 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 Partner), but that does not terminate the existence of such Partner under applicable state Law (or, in the case of a trust that is a Partner, does not terminate the trusteeship of the fiduciaries under such trust with respect to all the Units of such trust that is a Partner) or (ii) any indirect Transfer of Units held by the General Partner by virtue of any Transfer of Equity Securities in the Corporation.
Section 10.02    Permitted Transfers . The restrictions contained in Section 10.01 shall not apply to any of the following Transfers (each, a “ Permitted Transfer ” and each transferee, a “ Permitted Transferee ”): (a) a Transfer pursuant to a Redemption or Direct Exchange in accordance with Article XI hereof or that is necessary or desirable to comply with Sections 3.04 or 3.05 as determined by the General Partner, (b) a Transfer by a Partner to the Corporation or any of its Subsidiaries, (c) a Transfer by a Subsidiary of the Corporation to the Corporation, (d) a Transfer by a Controlling Partner to an Estate Planning Vehicle, (e) a Transfer by a Partner approved in advance and in writing by the General Partner, (f) a Transfer following the death or Incapacitation of a Controlling Partner in accordance with Article XI and (g) with respect to Common Units received by a Permitted Transferee from a Partner or such Partner’s other Permitted Transferee, a Transfer by such Permitted Transferee of such Common Units to such Partner. In the case of a Permitted Transfer of any Common Units by any Partner that is authorized to hold Class B Common Stock or Class C Common Stock in accordance with the
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Certificate of Incorporation to a Permitted Transferee in accordance with this Section 10.02 , such Partner (or any subsequent Permitted Transferee of such Partner) shall also transfer a number of shares of Class B Common Stock or Class C Common Stock, as applicable, equal to the number of Common Units that were transferred by such Partner (or subsequent Permitted Transferee) in the transaction to such Permitted Transferee, provided , however , that with respect to any Transfer (other than a Transfer (i) by a Controlling Partner, pursuant to clause (d) above or a similar estate planning Transfer pursuant to clause (e) above by a Controlling Partner to a Permitted Transferee that the Controlling Partner controls or (ii) by a holder of Class C Common Stock to a Controlling Partner pursuant to clause (g) above) of any Common Unit that corresponds with a share of Class C Common Stock, such corresponding number of shares of Class C Common Stock so transferred will automatically be converted to Class B Common Stock pursuant to the Certificate of Incorporation, provided further , in the event that a Permitted Transferee holding Common Units and Class C Common Stock (i) pursuant to clause (d) ceases to be an Estate Planning Vehicle or (ii) pursuant to clause (e) ceases to be controlled by the Controlling Partner, such shares of Class C Common Stock shall automatically be converted to Class B Common Stock pursuant to the Certificate of Incorporation. All Permitted Transfers are subject to the additional limitations set forth in Section 10.07(b) .
Section 10.03    Restricted Units Legend . The Units have not been registered under the Securities Act and, therefore, in addition to the other restrictions on Transfer contained in this Agreement, cannot be sold unless subsequently registered under the Securities Act or if an exemption from such registration is then available with respect to such sale. To the extent such Units have been certificated, each certificate evidencing Units and each certificate issued in exchange for or upon the Transfer of any Units shall be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED ON [  ó  ], AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE FOURTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF LINCOLN INTERNATIONAL, LP, AS IT MAY BE AMENDED, RESTATED, AMENDED AND RESTATED, OR OTHERWISE MODIFIED FROM TIME TO TIME, AND LINCOLN INTERNATIONAL, LP RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY LINCOLN INTERNATIONAL, LP TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.”
The Company shall imprint such legend on certificates (if any) evidencing Units. The legend set forth above shall be removed from the certificates (if any) evidencing any Units which cease to be Units in accordance with the definition thereof.
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Section 10.04    Transfer . Prior to Transferring any Units (other than in connection with a Permitted Pledge or a Redemption or Direct Exchange in accordance with Article XI ), the Transferring holder of Units shall cause the prospective Permitted Transferee to be bound by this 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 a duly executed Joinder and counterparts of this Agreement and any applicable Other Agreements.
Section 10.05    Assignee’s Rights .
(a)    The Transfer of a Unit in accordance with this Agreement shall be effective as of the date of such Transfer (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 items of the Company shall be allocated between the transferor and the transferee according to Code Section 706, using any permissible method as determined in the reasonable discretion of the General Partner. 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 Partner pursuant to Article XII , the Assignee shall not be entitled to any of the rights granted to a Partner hereunder or under applicable Law, other than the rights granted specifically to Assignees pursuant to this Agreement; provided, however , that, without relieving the Transferring Partner from any such limitations or obligations as more fully described in Section 10.06 , such Assignee shall be bound by any limitations and obligations of a Partner contained herein by which a Partner would be bound on account of the Assignee’s Units (including the obligation to make Capital Contributions on account of such Units).
Section 10.06    Assignor’s Rights and Obligations . Any Partner who shall Transfer any Unit in a manner in accordance with this Agreement shall cease to be a Partner with respect to such Units and shall no longer have any rights or privileges, or, except as set forth in this Section 10.06 , duties, liabilities or obligations, of a Partner with respect to such Units or other interest (it being understood, however, that the applicable provisions of Sections 6.08 and 7.04 shall continue to inure to such Person’s benefit), except that unless and until the Assignee (if not already a Partner) is admitted as a Substituted Limited Partner in accordance with the provisions of Article XII (the “ Admission Date ”), (i) such Transferring Partner shall retain all of the duties, liabilities and obligations of a Partner with respect to such Units, and (ii) the General Partner may, in its sole discretion, reinstate all or any portion of the rights and privileges of such Partner with respect to such Units for any period of time prior to the Admission Date. Nothing contained herein shall relieve any Partner who Transfers any Units in the Company from any liability of such Partner to the Company with respect to such Units that may exist as of the Admission Date or that is otherwise specified in the Delaware Act or for any liability to the Company or any other Person for any materially false statement made by such Partner (in its capacity as such) or for any present or future breaches of any representations, warranties or covenants by such Partner (in its capacity as such) contained herein or in the Other Agreements with the Company.
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Section 10.07    Overriding Provisions .
(a)    Any Transfer or attempted Transfer of any Units in violation of this Agreement (including any prohibited direct or indirect Transfers) shall be, to the fullest extent permitted by applicable Law, null and void ab initio , and the provisions of Sections 10.05 and 10.06 shall not apply to any such Transfers. For the avoidance of doubt, any Person to whom a Transfer is made or attempted in violation of this Agreement shall not become a Partner and shall not have any other rights in or with respect to any rights of a Partner of the Company with respect to the applicable Units. The approval of any Transfer in any one or more instances shall not limit or waive the requirement for such approval in any other or future instance. The General Partner shall promptly amend the Schedule of Partners to reflect any Permitted Transfer pursuant to this Article X .
(b)    Notwithstanding anything contained herein to the contrary (including, for the avoidance of doubt, the provisions of Section 10.01 and Article XI and Article XII ), in no event shall any Partner Transfer any Units to the extent such Transfer would:
(i)    result in the violation of the Securities Act, or any other applicable federal, state or foreign Laws;
(ii)    cause an assignment under the Investment Company Act;
(iii)    in the reasonable determination of the General Partner, be a violation of or a default (or an event that, with notice or the lapse of time or both, would constitute a default) under, or result in an acceleration of any obligation under any Credit Agreement to which the Company or the General Partner is a party; provided that the payee or creditor to whom the Company or the General Partner owes such obligation is not an Affiliate of the Company or the General Partner;
(iv)    be a Transfer to a Person who is not legally competent or who has not achieved his or her majority of age under applicable Law (excluding trusts for the benefit of minors);
(v)    cause the Company to be treated as a “publicly traded partnership” or to be taxed as a corporation pursuant to Section 7704 of the Code or any successor provision thereto under the Code; or
(vi)    result in the Company having more than one hundred (100) partners, within the meaning of Treasury Regulation Section 1.7704-1(h)(1) (determined pursuant to the rules of Treasury Regulation Section 1.7704-1(h)(3)).
(c)    Notwithstanding anything contained herein to the contrary, in no event shall any Partner that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code Transfer any Units (including, for the avoidance of doubt, in connection with a Redemption or a Direct Exchange), unless such Partner and the transferee have delivered to the Company, in respect of the relevant Transfer, written evidence that all required withholding
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under Section 1446(f) of the Code shall have been done and duly remitted to the applicable Governmental Entity or duly executed certifications (prepared in accordance with the applicable Treasury Regulations or other authorities) of an exemption from such withholding.
Section 10.08    Spousal Consent . In connection with the execution and delivery of this Agreement, any Partner who is a natural person shall deliver to the Company an executed consent from such Partner’s spouse (if any) in the form of Exhibit B-1 attached hereto or a Partner’s spouse confirmation of separate property in the form of Exhibit B-2 attached hereto. If, at any time subsequent to the date of this Agreement such Partner becomes legally married (whether in the first instance or to a different spouse), such Partner shall cause his or her spouse to execute and deliver to the Company a consent in the form of Exhibit B-1 or Exhibit B-2 attached hereto. Such Partner’s non-delivery to the Company of an executed consent in the form of Exhibit B-1 or Exhibit B-2 at any time shall constitute such Partner’s continuing representation and warranty that such Partner is not legally married as of such date.
Section 10.09    Certain Transactions with respect to the Corporation .
(a)     In connection with a Change of Control Transaction, the General Partner shall have the right, in its sole discretion, to require each Partner to effect a Redemption of all or a portion of

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EX-10.2
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exhibit102-8xk.htm
EX-10.2

Document
Exhibit 10.2

TAX RECEIVABLE AGREEMENT
by and among
LINCOLN INTERNATIONAL, INC.
LINCOLN INTERNATIONAL, LP
THE TRA REPRESENTATIVE
TRA PARTIES
and
OTHER PERSONS FROM TIME TO TIME PARTY HERETO
Dated as of May 19, 2026

TABLE OF CONTENTS
| | | | | | | | | | | |
| | Page |
| | | |
ARTICLE I DEFINITIONS | 2 |
| | | |
| Section 1.1 | Definitions | 2 |
| Section 1.2 | Rules of Construction | 14 |
| | | |
ARTICLE II DETERMINATION OF REALIZED TAX BENEFIT | 15 |
| | | |
| Section 2.1 | Basis Adjustments; Company 754 Election | 15 |
| Section 2.2 | Attribute Schedules | 16 |
| Section 2.3 | Tax Benefit Schedules | 16 |
| Section 2.4 | Procedures; Amendments | 17 |
| | | |
ARTICLE III TAX BENEFIT PAYMENTS | 18 |
| | | |
| Section 3.1 | Timing and Amount of Tax Benefit Payments | 18 |
| Section 3.2 | No Duplicative Payments | 20 |
| Section 3.3 | Pro-Ration of Payments as Between the TRA Parties | 21 |
| Section 3.4 | Overpayments | 21 |
| Section 3.5 | IPO Existing Basis | 21 |
| | | |
ARTICLE IV TERMINATION | 22 |
| | | |
| Section 4.1 | Early Termination of Agreement; Acceleration Events | 22 |
| Section 4.2 | Early Termination Notice | 23 |
| Section 4.3 | Payment upon Early Termination | 24 |
| | | |
ARTICLE V SUBORDINATION AND LATE PAYMENTS | 24 |
| | | |
| Section 5.1 | Subordination | 24 |
| Section 5.2 | Late Payments by the Corporation | 24 |
| | | |
ARTICLE VI TAX MATTERS; CONSISTENCY; COOPERATION | 24 |
| | | |
| Section 6.1 | Participation in the Corporation’s and the Company’s Tax Matters | 24 |
| Section 6.2 | Consistency | 25 |
| Section 6.3 | Cooperation | 25 |
| | | |
ARTICLE VII MISCELLANEOUS | 26 |
| | | |
| Section 7.1 | Notices | 26 |

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| | | | | | | | | | | |
| Section 7.2 | Counterparts | 26 |
| Section 7.3 | Entire Agreement; No Third-Party Beneficiaries | 26 |
| Section 7.4 | Severability | 27 |
| Section 7.5 | Assignments; Amendments; Successors; No Waiver | 27 |
| Section 7.6 | Titles and Subtitles | 29 |
| Section 7.7 | Resolution of Disputes; Governing Law | 29 |
| Section 7.8 | Reconciliation Procedures | 31 |
| Section 7.9 | Withholding | 31 |
| Section 7.10 | Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets | 32 |
| Section 7.11 | Confidentiality | 33 |
| Section 7.12 | Change in Law | 33 |
| Section 7.13 | Interest Rate Limitation | 34 |
| Section 7.14 | Independent Nature of Rights and Obligations | 34 |
| Section 7.15 | Coordination with Limited Partnership Agreement | 35 |
| Section 7.16 | TRA Representative | 35 |

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| | | | | | | | |
Exhibits | | |
| | |
Exhibit A | - | Form of Joinder Agreement |
| | |
Exhibit B | - | Net Tax Benefit Splits |

iii

TAX RECEIVABLE AGREEMENT
This TAX RECEIVABLE AGREEMENT (this “ Agreement ”), dated as of May 19, 2026, is hereby entered into by and among Lincoln International, Inc., a Delaware corporation (the “ Corporation ”), Lincoln International, LP, a Delaware limited partnership (the “ Company ”), the TRA Representative and each of the TRA Parties.
RECITALS
WHEREAS, the Company is treated as a partnership for U.S. federal income tax purposes;
WHEREAS, as a result of certain reorganization transactions undertaken in connection with the IPO of the Corporation, (i) all of the shares of the Blockers and LI GP, Inc. were acquired by the Corporation in exchange for Class A Common Stock and, in the case of LI GP, Inc., Class C Common Stock (the “ Pre-IPO Mergers ”) and (ii) certain TRA Parties (the “ Rolling Partners ”) contributed all or a portion of their Common Units (the “ Rolled Common Units ”) to the Corporation in exchange for Class A Common Stock (the “ Pre-IPO Roll ”), and (iii) pursuant to such transactions, the Corporation acquired (A) all of the Common Units owned by the Blockers and LI GP, Inc. and (B) the Rolled Common Units owned by the Rolling Partners (the Pre-IPO Mergers and the Pre-IPO Roll collectively, the “ Reorganization ”);
WHEREAS, as a result of the Reorganization, the Corporation will be entitled to utilize (or otherwise be entitled to the benefits arising out of) the Transferred IPO Existing Basis;
WHEREAS, in connection with the Reorganization, the Company entered into the Limited Partnership Agreement wherein the Company recapitalized all existing ownership interests in the Company into limited partnership interests in the form of Common Units (the “ Recapitalization ”) and admitted the Corporation as the sole general partner of the Company;
WHEREAS, on the date hereof, the Corporation issued shares of its Class A Common Stock in an initial public offering of its Class A Common Stock (the “ IPO ”);
WHEREAS, immediately following the consummation of the IPO, the Corporation acquired newly issued Common Units by (i) contributing cash to the Company which was not used to fund a distribution to or redemption of Common Units held by any other partner of the Company (the “ Unit Purchase ”) and (ii) contributing cash to the Company which was used to fund a Redemption of Common Units held by certain Unit Holders (the “ IPO Unit Redemption ”);
WHEREAS, as a result of the Unit Purchase, the Corporation will be entitled to utilize (or otherwise be entitled to the benefits arising out of) the IPO Existing Basis;
WHEREAS, the Limited Partnership Agreement provides each Unit Holder a redemption right pursuant to which each such Unit Holder may cause the Company to redeem all or a portion of its Common Units from time to time for shares of Class A Common Stock or,
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under certain circumstances and at the Corporation’s election, cash (a “ Redemption ”), subject to the Corporation’s right, in its sole discretion, to elect to effect a direct exchange of cash or shares of Class A Common Stock for such Common Units between the Corporation (or wholly-owned Subsidiary thereof) and the applicable Unit Holder in lieu of such a Redemption (a “ Direct Exchange ”);
WHEREAS, as a result of any such Redemption (including the IPO Unit Redemption) or Direct Exchange or any other Exchange, the Corporation will be entitled to utilize (or otherwise be entitled to the benefits arising out of) the Exchange Existing Basis and Basis Adjustments;
WHEREAS, the Company and its Subsidiaries that are treated as a partnership for U.S. federal income tax purposes will have in effect an election under Section 754 of the Code for the Taxable Year in which any Exchange occurs, which election will cause any such Exchange to result in an adjustment to the Corporation’s proportionate share of the tax basis of the assets owned by the Company and such Subsidiaries pursuant to Section 743(b) and Section 734(b) of the Code; and
WHEREAS, the Parties to this Agreement desire to provide for certain payments and make certain arrangements with respect to certain tax benefits to be derived by the Corporation as the result of Covered Tax Assets and the making of payments under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1     Definitions . As used in this Agreement, the terms set forth in this Article I shall have the following meanings (such meanings to be equally applicable to (i) the singular and plural, (ii) the active and passive and (iii) for defined terms that are nouns, the verb forms of the terms defined).
“ Actual Tax Liability ” means, with respect to any Taxable Year, the liability for Covered Taxes of the Corporation (a) appearing on Tax Returns of the Corporation or the Company (but only to the extent allocable to the Corporation) for such Taxable Year, including without duplication, the portion of any liability for U.S. federal income Taxes imposed directly on the Company under Section 6225 or any similar provision of the Code that is allocable to the Corporation under Section 704 of the Code, or (b) if applicable, determined in accordance with a Determination; provided , that for purposes of determining Actual Tax Liability, the Corporation shall use the Assumed State and Local Tax Rate for purposes of determining liabilities for all state and local Covered Taxes (including, for the avoidance of doubt, the U.S. federal income tax benefit realized by the Corporation with respect to such state and local Covered Taxes).
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“ Advisory Firm ” means an accounting firm that is nationally recognized as being expert in Covered Tax matters selected by the Corporation.
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person.
“ Agreed Rate ” means SOFR plus 100 basis points.
“ Agreement ” is defined in the preamble to this Agreement.
“ Amended Schedule ” is defined in Section 2.4(b) .
“ Amount Realized ” means, with respect to any Exchange that is not eligible for nonrecognition treatment (as determined for U.S. federal income tax purposes), at any time, the sum of (i) the Market Value of the shares of Class A Common Stock or the amount of cash (as applicable) transferred to a TRA Party pursuant to such Exchange, (ii) the amount of payments made pursuant to this Agreement with respect to such Exchange (but excluding any portions thereof attributable to Imputed Interest) and (iii) the amount of liabilities allocated to the Common Units acquired pursuant to the Exchange under Section 752 of the Code.
“ Assumed State and Local Tax Rate ” means the Corporation’s reasonable estimate of the tax rate equal to the sum of the products of (i) the Corporation’s or the Company’s income tax apportionment factor for each state and local jurisdiction in which the Corporation or the Company files income or franchise tax returns for the relevant Taxable Year and (ii) the highest applicable corporate income and franchise tax rate(s) for each such state and local jurisdiction in which the Corporation or the Company files income tax returns for each relevant Taxable Year.
“ Attributable ” is defined in Section 3.1(b)(i) .
“ Attribute Schedule ” is defined in Section 2.2 .
“ Audit Committee ” means the audit committee of the Board.
“ Basis Adjustment ” is defined in Section 2.1(a) .
“ Beneficial Owner ” means, with respect to any security, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (i) voting power, which includes the power to vote, or to direct the voting of, with respect to such security or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security.
“ Blocker ” means each of Lincoln International Partners Holdings, LLC, Lincoln International Partners Holdings II, LLC and MarshBerry Holdco II, LLC.
“ Board ” means the Board of Directors of the Corporation.
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“ Business Day ” means any day other than a Saturday or a Sunday or a day on which banks located in New York City, New York generally are authorized or required by Law to close.
“ Change of Control ” means the occurrence of any of the following events:
(i)    any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act, but excluding any (A) employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (B) “person” or “group” who, on the date of the consummation of the IPO, is the Beneficial Owner of securities of the Corporation representing more than 50% of the combined voting power of the Corporation’s then outstanding voting securities or (C) any “group” formed after the IPO that includes members who collectively, as of the IPO, are the Beneficial Owners of securities of the Corporation representing more than 50% of the combined voting power of the Corporation’s then outstanding voting securities) becomes the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of shares of Class A Common Stock, Class B Common Stock, Class C Common Stock, preferred stock and/or any other class or classes of capital stock of the Corporation (if any) representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding shares of capital stock of the Corporation entitled to vote;
(ii)    the stockholders of the Corporation approve a plan of complete liquidation or dissolution of the Corporation or there is consummated an agreement or series of related agreements for the sale, lease, exchange or other disposition, directly or indirectly, by the Corporation of all or substantially all of the Corporation’s assets (including a sale of all or substantially all of the assets of the Company) other than such sale or other disposition by the Corporation of all or substantially all of the Corporation’s assets to an entity at least fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Corporation in substantially the same proportions as their ownership of the Corporation immediately prior to such sale or other disposition; or
(iii)    there is consummated a merger or consolidation of the Corporation with any other corporation or entity, and, immediately after the consummation of such merger or consolidation, the voting securities of the Corporation outstanding immediately prior to such merger or consolidation do not continue to represent, or are not converted into, voting securities representing in the aggregate more than fifty percent (50%) of the voting power of all of the outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof.
Notwithstanding the foregoing, a “Change of Control” shall not be deemed to have occurred (a) by virtue of the consummation of any transaction or series of related transactions immediately following which the Beneficial Owners of the Class A Common Stock, Class B Common Stock,
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Class C Common Stock, preferred stock and/or any other class or classes of capital stock of the Corporation immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions or (b) if the TRA Representative agrees in writing to elect for a “Change of Control” to not have occurred upon the occurrence of any transaction, series of related transactions or any other occurrence that may otherwise qualify as a “Change of Control.”
“ Class A Common Stock ” means the Class A common stock, par value $0.00001 per share, of the Corporation.
“ Class B Common Stock ” means the Class B common stock, par value $0.00001 per share, of the Corporation.
“ Class C Common Stock ” means the Class C common stock, par value $0.00001 per share, of the Corporation.
“ Code ” means the U.S. Internal Revenue Code of 1986, as amended. Unless the context requires otherwise, any reference herein to a specific section of the Code shall be deemed to include any corresponding provisions of future Law as in effect for the relevant taxable period.
“ Common Units ” shall have the meaning ascribed to such term in the Limited Partnership Agreement.
“ Company ” is defined in the preamble to this Agreement.
“ Company Group ” means the Company and each of its direct or indirect Subsidiaries that is treated as a partnership or disregarded entity for applicable tax purposes (but excluding any such Subsidiary to the extent it is directly or indirectly held by any entity treated as a corporation for applicable tax purposes (other than the Corporation)).
“ Control ” means the direct or indirect possession of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“ Corporation ” is defined in the preamble to this Agreement.
“ Covered Tax Assets ” means (i) IPO Existing Basis; (ii) Transferred IPO Existing Basis; (iii) Exchange Existing Basis; (iv) Basis Adjustments; and (v) Imputed Interest reasonably determined to be allocable to payments pursuant to this Agreement arising from the items described in clauses (i) through (iv). The determination of IPO Existing Basis, Transferred IPO Existing Basis and Exchange Existing Basis that is attributable to Common Units being Exchanged by the TRA Party or Common Units acquired by the Corporation at the time of the Reorganization or IPO (and, in each case, payments made hereunder with respect to such tax basis) shall be determined in good faith by the Corporation in consultation with the Advisory
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Firm; provided , that in no event will the portions of existing tax basis in the Reference Assets that are included as Covered Tax Assets exceed one hundred percent (100%) of the existing tax basis in the Reference Assets that is allocable to the Corporation at any time. For the avoidance of doubt, Covered Tax Assets shall include any carryforwards, carrybacks or similar attributes that are attributable to the tax items described in clauses (i) through (v).
“ Covered Taxes ” means any U.S. federal, state and local taxes, assessments or similar charges that are based on or measured with respect to net income or profits and any interest imposed in respect thereof under applicable Law.
“ Cumulative Net Realized Tax Benefit ” is defined in Section 3.1(b)(iii) .
“ Default Rate ” means SOFR plus 500 basis points.
“ Default Rate Interest ” is defined in Section 5.2 .
“ Determination ” shall have the meaning ascribed to such term in Section 1313(a) of the Code or any similar provisions of state, local or foreign tax Law, as applicable, or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for tax.
“ Direct Exchange ” is defined in the recitals to this Agreement.
“ Dispute ” is defined in Section 7.7(a) .
“ Early Termination Effective Date ” means (i) with respect to an early termination pursuant to Section 4.1(a) , the date an Early Termination Notice is delivered, (ii) with respect to an early termination pursuant to Section 4.1(b) , the date of the applicable Change of Control and (iii) with respect to an early termination pursuant to Section 4.1(c) , the date of the applicable Material Breach.
“ Early Termination Notice ” is defined in Section 4.2(a) .
“ Early Termination Payment ” is defined in Section 4.3(b) .
“ Early Termination Reference Date ” is defined in Section 4.2(b) .
“ Early Termination Schedule ” is defined in Section 4.2(b) .
“ Exchange ” means any (1) Direct Exchange, (2) Redemption (including the IPO Unit Redemption), (3) other taxable transfer (as determined for U.S. federal income tax purposes) of Common Units to the Corporation from a TRA Party (including a purchase by the Company deemed or treated as a purchase by the Corporation under Section 707(a) of the Code and any taxable transfer of Common Units to the Corporation arising from the Pre-IPO Roll) or (4) distribution (including a deemed distribution) by the Company to a TRA Party, in each case, that results in a Basis Adjustment; provided , that, for the avoidance of doubt, the term Exchange
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does not include any exchange, transaction or otherwise that occurred prior to the IPO (other than any taxable transfer of Common Units to the Corporation arising from the Pre-IPO Roll).
“ Exchange Act ” means the Securities and Exchange Act of 1934, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations.
“ Exchange Existing Basis ” means the existing Tax basis of the Reference Assets that is amortizable under Section 197 of the Code, depreciable under Section 168 of the Code or that is otherwise reported as depreciable or amortizable on IRS Form 4562 (or any successor form) for U.S. federal income tax purposes (without taking into account Section 704(c) of the Code), in each case, relating to the Common Units transferred upon an Exchange, determined as of immediately prior to the time of such Exchange and without regard to any dilutive or antidilutive effect of any contribution by or distribution to the Corporation after the relevant Exchange; provided , that any tax basis included in the IPO Existing Basis Attributable to Unit Holders shall be excluded from the determination of the Exchange Existing Basis.
“ Exercise Period ” is defined in Section 7.5(a)(ii) .
“ Expert ” is defined in Section 7.8(a) .
“ Final Payment Date ” means any date on which a Payment is required to be made pursuant to this Agreement. The Final Payment Date in respect of (i) a Tax Benefit Payment is determined pursuant to Section 3.1(a) and (ii) an Early Termination Payment is determined pursuant to Section 4.3(a) .
“ GP Shareholder ” means a TRA Party that was a shareholder of LI GP, Inc. immediately prior to the Reorganization.
“ Hypothetical Tax Liability ” means, with respect to any Taxable Year, the hypothetical liability of the Corporation that would arise in respect of Covered Taxes, including without duplication, the portion of any liability for U.S. federal income Taxes imposed directly on the Company under Section 6225 or any similar provision of the Code that is allocable to the Corporation under Section 704 of the Code, in each case, using the same methods, elections, conventions and similar practices used on the actual relevant Tax Returns of the Corporation and the Company but calculated without taking into account the Covered Tax Assets; provided , that for purposes of determining the Hypothetical Tax Liability, (a) the combined tax rate for U.S. state and local Covered Taxes shall be the Assumed State and Local Tax Rate, (b) the Corporation shall use the Non-Transferred IPO Existing Basis, the Non-IPO Existing Basis, the Non-Exchange Existing Basis, and the Non-Basis Adjustment Basis, (c) the Corporation shall exclude any deduction attributable to Imputed Interest and (d) the Corporation shall be entitled to make reasonable simplifying assumptions in making any determinations contemplated by this definition. For the avoidance of doubt, the Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any tax item (or portions thereof) that is attributable to a Covered Tax Asset and shall not be an amount less than zero.
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“ Imputed Interest ” means any interest imputed under Section 483, 1272 or 1274 or any other provision of the Code or any similar provisions of state, local or foreign tax Law with respect to the Corporation’s payment obligations under this Agreement.
“ Independent Directors ” means the members of the Board who are “independent” under the standards of the principal U.S. securities exchange on which the Class A Common Stock is traded or quoted.
“ Interest Amount ” is defined in Section 3.1(b)(vii) .
“ IPO ” is defined in the recitals to this Agreement.
“ IPO Existing Basis ” means the existing Tax basis of the Reference Assets that is amortizable under Section 197 of the Code, depreciable under Section 168 of the Code or that is otherwise reported as depreciable or amortizable on IRS Form 4562 (or any successor form) for U.S. federal income tax purposes to the extent allocable to the Corporation as a result of the Unit Purchase, in each case, determined at the time of the IPO (without taking into account Section 704(c) of the Code).
“ IRS ” means the U.S. Internal Revenue Service.
“ Joinder ” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement.
“ Joinder Requirement ” is defined in Section 7.5(b) .
“ Law ” means all laws, statutes, ordinances, rules and regulations of the U.S., any foreign country and each state, commonwealth, city, county, municipality, regulatory or self-regulatory body, agency or other political subdivision thereof.
“ Limited Partnership Agreement ” means that certain Fourth Amended and Restated Limited Partnership Agreement of the Company, dated as of the date hereof, as such agreement may be further amended, restated, supplemented or otherwise modified from time to time.
“ Market Value ” means (i) with respect to an Exchange (other than a deemed Exchange described in clause (ii) below), the value of the Class A Common Stock on the applicable Redemption or Direct Exchange date determined by the Corporation on a reasonable and consistent basis and used by the Corporation in its U.S. federal income tax reporting with respect to such Exchange, and (ii) with respect to a deemed Exchange pursuant to Valuation Assumptions, (a) if the Class A Common Stock trades on a securities exchange or automated or electronic quotation system, the arithmetic average of the high trading price on such date (or if such date is not a Trading Day, the immediately preceding Trading Day) and the low trading price on such date (or if such date is not a Trading Day, the immediately preceding Trading Day) or (b) if the Class A Common Stock no longer trades on a securities exchange or automated or electronic quotation system, the fair market value of one share of Class A Common Stock, as
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determined by the Corporation in good faith, that would be obtained in an arms’ length transaction for cash between an informed and willing buyer and an informed and willing seller, neither of whom is under any compulsion to buy or sell, and without regard to the particular circumstances of the buyer or seller and without any discounts for liquidity or minority discount.
“ Material Breach ” means the (i) material breach by the Corporation of a material obligation under this Agreement or (ii) the rejection of this Agreement by operation of law in a case commenced in bankruptcy or otherwise.
“ Net Tax Benefit ” is defined in Section 3.1(b)(ii) .
“ Non-Basis Adjustment Basis ” means, with respect to any Reference Asset reported as depreciable or amortizable on IRS Form 4562 for U.S. federal income tax purposes (without taking into account Section 704(c) of the Code) at the time of an Exchange, the tax basis that such asset would have had at such time if no Basis Adjustments had been made.
“ Non-Exchange Existing Basis ” means, with respect to any Reference Assets reported as depreciable or amortizable on IRS Form 4562 for U.S. federal income tax purposes (without taking into account Section 704(c) of the Code) at the time of an Exchange, the tax basis that such Reference Assets would have had if the Exchange Existing Basis was equal to zero.
“ Non-IPO Existing Basis ” means, with respect to any Reference Assets reported as depreciable or amortizable on IRS Form 4562 for U.S. federal income tax purposes at the time of the Unit Purchase, the tax basis that such Reference Assets would have had if the IPO Existing Basis was equal to zero.
“ Non-Participating Blocker Shareholder ” means any Person who (i) immediately prior to the Reorganization beneficially owned its Common Units indirectly through one of the Blockers and (ii) is not a TRA Party as of the date hereof.
“ Non-TRA Portion ” is defined in Section 2.3(b) .
“ Non-Transferred IPO Existing Basis ” means, with respect to any Reference Assets reported as depreciable or amortizable on IRS Form 4562 for U.S. federal income tax purposes (without taking into account Section 704(c) of the Code) at the time of the Reorganization, the tax basis that such Reference Assets would have had if the Transferred IPO Existing Basis was equal to zero.
“ Objection Notice ” is defined in Section 2.4(a) .
“ Offered Price ” is defined in Section 7.5(a)(i) .
“ Offered TRA Interests ” is defined in Section 7.5(a)(i) .
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“ Parties ” means the parties named on the signature pages to this Agreement and each additional party that satisfies the Joinder Requirement, in each case with their respective successors and assigns.
“ Participating Blocker Shareholder ” means a TRA Party that, immediately prior to the Reorganization, beneficially owned its Common Units indirectly through one of the Blockers.
“ Payment ” means any Tax Benefit Payment or Early Termination Payment and in each case, unless otherwise specified, refers to the entire amount of such Payment or any portion thereof.
“ Permitted Transferee ” means a holder of Common Units pursuant to any Permitted Transfer (as such term is defined in the Limited Partnership Agreement).
“ Person ” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity.
“ Pre-Exchange Transfer ” means any transfer (or deemed transfer) of one or more Common Units (i) that occurs after the consummation of the IPO but prior to an Exchange of such Common Units and (ii) to which Section 743(b) of the Code applies.
“ Proposed Transferee ” is defined in Section 7.5(a)(i) .
“ Realized Tax Benefit ” is defined in Section 3.1(b)(iv) .
“ Realized Tax Detriment ” is defined in Section 3.1(b)(v) .
“ Recapitalization ” is defined in the recitals to this Agreement.
“ Reconciliation Dispute ” is defined in Section 7.8(a) .
“ Reconciliation Procedures ” is defined in Section 7.8(a) .
“ Redemption ” is defined in the recitals to this Agreement.
“ Reference Asset ” means any asset of any member of the Company Group on the relevant date of determination under this Agreement (including at the time of the Reorganization, an Exchange or the IPO, as applicable). A Reference Asset also includes any asset the tax basis of which is determined, in whole or in part, by reference to the tax basis of an asset that is described in the preceding sentence, including “substituted basis property” within the meaning of Section 7701(a)(42) of the Code.
“ Right of First Refusal ” is defined in Section 7.5(a) .
“ Right of First Refusal Closing ” is defined in Section 7.5(a)(iv) .
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“Rolled Common Units” is defined in the recitals to this Agreement.
“ Rolling Partners ” is defined in the recitals to this Agreement.
“ Schedule ” means any of the following: (i) an Attribute Schedule; (ii) a Tax Benefit Schedule; (iii) an Early Termination Schedule; and (iv) any Amended Schedule.
“ Seller ” is defined in Section 7.5(a) .
“ Senior Obligations ” is defined in Section 5.1 .
“ SOFR ” means the Secured Overnight Financing Rate, as reported by the Wall Street Journal.
“ Subsidiary ” means, with respect to any Person and as of any determination date, any other Person as to which such first Person (i) owns, directly or indirectly, or otherwise controls, more than 50% of the voting power or other similar interests of such other Person or (ii) is the sole general partner interest, or managing member or similar interest, of such other Person.
“ Subsidiary Stock ” means any stock or other equity interest in any Subsidiary of the Corporation that is treated as a corporation for U.S. federal income tax purposes.
“ Tax Benefit Payment ” is defined in Section 3.1(b) .
“ Tax Benefit Schedule ” is defined in Section 2.3(a) .
“ Tax Return ” means any return, declaration, report or similar statement filed or required to be filed with respect to taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated tax.
“ Taxable Year ” means a taxable year of the Corporation as defined in Section 441(b) of the Code or any similar provisions of U.S. state or local tax Law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is filed), ending on or after the closing date of the IPO.
“ Taxing Authority ” means any national, federal, state, county, municipal or local government, or any subdivision, agency, commission or authority thereof, or any quasi-governmental body, or any other authority of any kind, exercising regulatory or other authority in relation to tax matters.
“ Threshold Exchange Units ” is defined in Section 3.5 .
“ 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 or admitted to trading is open for the transaction of business (unless such trading shall have been suspended for the entire day).
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“ TRA Interests ” is defined in Section 7.5(a) .
“ Transfer ” has the meaning set forth in the Limited Partnership Agreement and the terms “ Transferee, ” “ Transferor, ” “ Transferred, ” and other forms of the word “ Transfer ” shall have the correlative meanings.
“ Transfer Notice ” is defined in Section 7.5(a)(i) .
“ Transferred IPO Existing Basis ” means the existing tax basis of the Reference Assets that is amortizable under Section 197 of the Code, depreciable under Section 168 of the Code or that is otherwise reported as depreciable or amortizable on IRS Form 4562 (or any successor form) for U.S. federal income tax purposes (without taking into account Section 704(c) of the Code) to the extent allocable to the Corporation as a result of the Reorganization; provided , that any tax basis included in the IPO Existing Basis Attributable to the Participating Blocker Shareholders, GP Shareholders or Rolling Partners (in each case, with respect to the Unit Purchase) shall be excluded from the determination of the Transferred IPO Existing Basis; provided further , that notwithstanding anything to the contrary in this Agreement, any such existing tax basis described in the foregoing that is attributable to any Non-Participating Blocker Shareholder as described on Exhibit B shall not be included in Transferred IPO Existing Basis or any other Covered Tax Asset.
“ TRA Parties ” means each of the signatories to this Agreement as of the date hereof.
“ TRA Portion ” is defined in Section 2.3(b) .
“ TRA Representative ” means Theodore J. Heidloff, or his successor as determined by the Corporation.
“ Treasury Regulations ” means the final, temporary and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time (including corresponding provisions and succeeding provisions) and as in effect for the relevant taxable period.
“ U.S. ” means the United States of America.
“ Unit Holder ” means a TRA Party (and its Permitted Transferees) that directly holds Common Units immediately after the Reorganization and Recapitalization, other than the Corporation; provided , that the term “Unit Holder” refers to such Unit Holder solely with respect to the Common Units such Unit Holder directly owns following the Reorganization and does not refer to a Unit Holder in its capacity as a GP Shareholder, Rolling Partner or otherwise.
“ Unit Purchase ” is defined in the recitals to this Agreement.
“ UTPR Taxes ” means any taxes imposed pursuant to any provision of non-U.S. tax law implementing the “undertaxed payments rule” of the OECD’s Global Anti-Base Erosion Model Rules under Pillar Two.
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“ Valuation Assumptions ” means, as of an Early Termination Effective Date, the assumptions that:
(i)    in each Taxable Year ending on or after such Early Termination Effective Date, the Corporation will have taxable income sufficient to fully use the Covered Tax Assets (other than any such Covered Tax Assets that constitute or have resulted in net operating losses, disallowed interest expense carryforwards, or credit carryforwards or carryovers (determined as of the Early Termination Effective Date), which shall be governed by paragraph (iv) below) during such Taxable Year or future Taxable Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions) in which such deductions would become available;
(ii)    the U.S. federal income tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other applicable Law as in effect on the Early Termination Effective Date, except to the extent any change to such tax rates for such Taxable Year have already been enacted into Law, and the combined U.S. state and local income tax rates shall be the Assumed State and Local Tax Rate in effect for each such Taxable Year;
(iii)    all taxable income of the Corporation will be subject to the maximum applicable tax rates for each Covered Tax throughout the relevant period; provided , that the combined tax rate for U.S. state and local income taxes shall be the Assumed State and Local Tax Rate;
(iv)    any carryovers or carrybacks of losses, credits, or disallowed interest expense generated by any Covered Tax Assets (including any Basis Adjustments or Imputed Interest generated as a result of payments made or deemed to be made under this Agreement) and available (taking into account any known and applicable limitations, other than, for the avoidance of doubt, any such limitation arising from any Change of Control) as of the date of the Early Termination Schedule will be used by the Corporation ratably in each of the five consecutive Taxable Years beginning with the Taxable Year that includes the date of the Early Termination Schedule (but, in the case of any such carryover or carryback that has less than five remaining Taxable Years, ratably through the scheduled expiration date of such carryover or carryback) (by way of example, if on the date of the Early Termination Schedule the Corporation had $100 of net operating losses, $20 of such net operating losses would be used in each of the five consecutive Taxable Years beginning in the Taxable Year of such Early Termination Schedule);
(v)    any non-amortizable assets (other than Subsidiary Stock) will be disposed of on the fifteenth (15th) anniversary of the Early Termination Effective Date; provided , that in the event of a Change of Control that includes the sale of any non-amortizable assets (or the sale of equity interests in a partnership or disregarded entity for U.S. federal income tax purposes that directly or indirectly owns non-amortizable assets), such non-amortizable assets shall be disposed of at the time of the direct or indirect sale
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of the relevant asset in such Change of Control (if earlier than such fifteenth anniversary) for such price;
(vi)    if, on the Early Termination Effective Date, any TRA Party has Common Units that have not been Exchanged, then such Common Units shall be deemed to be Exchanged for the Market Value of the shares of Class A Common Stock or the amount of cash that would be received by such TRA Party had such Common Units actually been Exchanged on the Early Termination Effective Date;
(vii)    any future payment obligations pursuant to this Agreement that are used to calculate the Early Termination Payment will be satisfied on the date that any Tax Return to which any such payment obligation relates is required to be filed excluding any extensions; and
(viii)    with respect to Taxable Years ending prior to the Early Termination Effective Date, any unpaid Tax Benefit Payments and any applicable Default Rate Interest will be paid.
“ Voluntary Early Termination ” is defined in Section 4.2(a) .
Section 1.2     Rules of Construction . Unless otherwise specified herein:
(a)    For purposes of interpretation of this Agreement:
(i)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision thereof.
(ii)    Unless specified otherwise, references to an Article, Section or clause refer to the appropriate Article, Section or clause in this Agreement.
(iii)    References to dollars or “ $ ” refer to the lawful currency of the U.S.
(iv)    The terms “include” or “including” are by way of example and not limitation and shall be deemed followed by the words “without limitation”.
(v)    The term “or”, when used in a list of two or more items, means “and/or” and may indicate any combination of the items.
(vi)    The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”
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(c)    Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
(d)    Unless otherwise expressly provided herein, (i) references to organizational documents (including the Limited Partnership Agreement), agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted hereby, and (ii) references to any Law (including the Code and the Treasury Regulations) include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
ARTICLE II
DETERMINATION OF REALIZED TAX BENEFIT
Section 2.1     Basis Adjustments; Company 754 Election .
(a)     Basis Adjustments. The Parties acknowledge and agree that, to the extent permitted by applicable Law, (i) each Redemption shall be treated as a direct purchase of Common Units by the Corporation from the applicable TRA Party pursuant to Section 707(a)(2)(B) of the Code (or any similar provisions of applicable state, local or foreign tax Law) (i.e., equivalent to a Direct Exchange), (ii) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to Transferred IPO Existing Basis that are allocable to a Participating Blocker Shareholder or a GP Shareholder (solely with respect to the Corporation’s ability to utilize such Transferred IPO Existing Basis as a result of the Pre-IPO Mergers), will be treated as other property or money for purposes of Section 356 of the Code or otherwise as consideration received in the Pre-IPO Mergers, (iii) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to Transferred IPO Existing Basis or Basis Adjustments that are allocable to a Rolling Partner (solely with respect to the Corporation’s ability to utilize such Transferred IPO Existing Basis or Basis Adjustments as a result of the Pre-IPO Roll), will be treated as other property or money for purposes of Section 351 of the Code or otherwise as consideration received in the Pre-IPO Roll, (iv) each (A) Exchange, (B) payment made by the Corporation under this Agreement (excluding payments with respect to amounts that constitute Imputed Interest) to a TRA Party in connection with an Exchange, (C) payment to a TRA Party pursuant to this Agreement with respect to IPO Existing Basis (except with respect to amounts that constitute Imputed Interest) that is treated as consideration in respect of the Threshold Exchange Units and (D) distribution (or deemed distribution) from the Company to a TRA Party that may reasonably be treated as a transaction between the Corporation and the TRA Party pursuant to Section 707(a)(2)(B) of the Code (or any similar provisions of applicable state, local or foreign tax Law), in each case, will give rise to an increase or decrease to, or the Corporation’s proportionate share of, the tax basis of the Reference Assets under Section 362(a), 732, 734(b), 743(b) or 1012 of the Code (or any similar provisions of state, local or foreign tax Law) to the maximum extent permitted by applicable law (the “ Basis Adjustments ”) and (v) the Interest Amount and Default Rate Interest payable with respect to any Exchange shall not be treated as interest for tax purposes but instead shall be treated as additional consideration for the Common
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Units transferred by the TRA Party in the relevant Exchange. For purposes of determining the Corporation’s proportionate share of the tax basis of the Reference Assets with respect to the Common Units transferred in an Exchange under Treasury Regulations Section 1.743-1(b) (or any similar provisions of state, local or foreign tax Law), the consideration paid by the Corporation for such Common Units shall be the Amount Realized. Notwithstanding any other provision of this Agreement, the amount of any Basis Adjustment resulting from an Exchange of one or more Common Units is to be determined as if any Pre-Exchange Transfer of such Common Units had not occurred.
(b)     Company Section 754 Election. The Corporation shall cause each of the Company and its Subsidiaries (as reasonably determined by the Corporation) that is treated as a partnership for U.S. federal income tax purposes to have in effect an election under Section 754 of the Code (or any similar provisions of applicable state, local or foreign tax Law) for each Taxable Year. The Corporation shall take commercially reasonable efforts to cause each Person in which the Company owns a direct or indirect equity interest (other than a Subsidiary) that is so treated as a partnership to have in effect any such election for each Taxable Year as reasonably determined by the Corporation.
Section 2.2     Attribute Schedules . Within one hundred twenty (120) calendar days after the due date of the U.S. federal income Tax Return of the Corporation (including applicable extensions thereof) for each relevant Taxable Year, the Corporation shall deliver to the TRA Representative a schedule showing, in reasonable detail, (i) the Covered Tax Assets that are available for use by the Corporation with respect to such Taxable Year with respect to each TRA Party (including the IPO Existing Basis, Transferred IPO Existing Basis, Exchange Existing Basis and Basis Adjustments, in each case, with respect to the Reference Assets resulting from the Reorganization, IPO or Exchanges effected in such Taxable Year, as applicable, and the periods over which such IPO Existing Basis, Transferred IPO Existing Basis, Exchange Existing Basis and Basis Adjustments are amortizable or depreciable), (ii) the portion of the Covered Tax Assets that are available for use by the Corporation in future Taxable Years with respect to each TRA Party and (iii) any limitations on the ability of the Corporation to utilize any Covered Tax Assets under applicable Laws (including as a result of the operation of Section 382 of the Code or Section 383 of the Code) (such schedule, an “ Attribute Schedule ”). An Attribute Schedule will become final and binding on the Parties pursuant to the procedures set forth in Section 2.4(a) and may be amended by the Parties pursuant to the procedures set forth in Section 2.4(b) .
Section 2.3     Tax Benefit Schedules .
(a)     Tax Benefit Schedule. Within one hundred twenty (120) days after the due date of the U.S. federal income Tax Return of the Corporation (including applicable extensions thereof) for any Taxable Year in which there is a Realized Tax Benefit or Realized Tax Detriment, the Corporation shall provide to the TRA Representative a schedule showing, in reasonable detail, the calculation of the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year (a “ Tax Benefit Schedule ”). A Tax Benefit Schedule will become final and binding
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on the Parties pursuant to the procedures set forth in Section 2.4(a) and may be amended by the Parties pursuant to the procedures set forth in Section 2.4(b) .
(b)     Applicable Principles . Subject to the provisions hereunder, the Realized Tax Benefit or Realized Tax Detriment for each Taxable Year is intended to measure the decrease or increase in the Actual Tax Liability of the Corporation for such Taxable Year attributable to the Covered Tax Assets, as determined using a “with and without” methodology (i.e., the Actual Tax Liability being the “with” calculation and the Hypothetical Tax Liability being the “without” calculation). Carryovers or carrybacks of any tax item attributable to any of the Covered Tax Assets shall be considered to be subject to the rules of the Code and the Treasury Regulations, and the appropriate provisions of state, local and foreign tax Law, governing the use, limitation or expiration of carryovers or carrybacks of the relevant type. If a carryover or carryback of any tax item includes a portion that is attributable to any Covered Tax Assets (a “ TRA Portion ”) and another portion that is not attributable to any Covered Tax Assets (a “ Non-TRA Portion ”), such portions shall be considered to be used in accordance with the “with and without” methodology so that (i) the amount of any Non-TRA Portion is deemed utilized first, followed by the amount of any TRA Portion (with the TRA Portion being applied on a proportionate basis consistent with the provisions of Section 3.3(a) ) and (ii) in the case of a carryback of a Non-TRA Portion, such carryback shall not affect the original “with and without” calculation made in the prior Taxable Year.
Section 2.4     Procedures; Amendments .
(a)     Procedures. Each time the Corporation delivers a Schedule to the TRA Representative under this Agreement, the Corporation shall, with respect to such Schedule, also (i) deliver to the TRA Representative supporting schedules and work papers, as reasonably requested by any TRA Representative, that provide a reasonable level of detail regarding relevant data and calculations and (ii) allow the TRA Representative and its advisors to have reasonable access to the appropriate representatives, as reasonably requested by the TRA Representative, at the Corporation or the Advisory Firm in connection with a review of relevant information. A Schedule will become final and binding on the TRA Parties thirty (30) calendar days from the date on which the TRA Representative first received the applicable Schedule unless the TRA Representative, within such period, provides the Corporation with written notice of a material objection (made in good faith) to such Schedule and sets forth in reasonable detail the TRA Representative’s material objection (an “ Objection Notice ”). If the Parties, for any reason, are unable to resolve the issues raised in such Objection Notice within thirty (30) calendar days after receipt by the Corporation of the Objection Notice, the Corporation and the TRA Representative shall employ the Reconciliation Procedures described in Section 7.8 and the finalization of the Schedule will be conducted in accordance therewith.
(b)     Amended Schedule. A Schedule (other than an Early Termination Schedule) for any Taxable Year may only be and shall be amended from time to time by the Corporation (i) in connection with a Determination affecting such Schedule, (ii) to correct inaccuracies in such Schedule identified as a result of the receipt of additional factual information relating to a Taxable Year after the date such Schedule was originally provided to
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the TRA Parties, (iii) to comply with an Expert’s determination under the Reconciliation Procedures, (iv) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to a carryover or carryback of a loss or other tax item to such Taxable Year or (v) to reflect a change in the Realized Tax Benefit or Realized Tax Detriment for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year (any such Schedule in its amended form, an “ Amended Schedule ”). The Corporation shall provide any Amended Schedule to the TRA Representative within sixty (60) calendar days of the occurrence of an event referred to in any of clauses (i) through (v) of the preceding sentence, and the delivery and finalization of any such Amended Schedule shall, for the avoidance of doubt, be subject to the procedures described in Section 2.4(a) .
ARTICLE III
TAX BENEFIT PAYMENTS
Section 3.1     Timing and Amount of Tax Benefit Payments .
(a)     Timing of Payments . Subject to Sections 3.2 and 3.3 , by the date that is five (5) Business Days following the date on which each Tax Benefit Schedule becomes final in accordance with Section 2.4(a) (such date, the “ Final Payment Date ” in respect of any Tax Benefit Payment), the Corporation shall pay in full to each relevant TRA Party the Tax Benefit Payment as determined pursuant to Section 3.1(b) . Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to a bank account designated by such TRA Party.
(b)     Amount of Payments. For purposes of this Agreement, a “ Tax Benefit Payment ” with respect to any TRA Party means an amount equal to the sum of the Net Tax Benefit that is Attributable to such TRA Party and the Interest Amount with respect thereto. No Tax Benefit Payment shall be calculated or made in respect of any estimated tax payments, including any estimated U.S. federal income tax payments.
(i)     Attributable. A Net Tax Benefit (and related Realized Tax Benefit) is “ Attributable ” to a TRA Party in accordance with the following principles:
(A)    any Transferred IPO Existing Basis shall be determined separately with respect to each Participating Blocker Shareholder, GP Shareholder (solely with respect to such GP Shareholder’s participation in the Pre-IPO Mergers) and Rolling Partner (solely with respect to such Rolling Partner’s participation in the Pre-IPO Roll) and is Attributable to each such Party proportionately in accordance with Exhibit B;
(B)    any IPO Existing Basis shall be determined separately with respect to each Unit Holder and is Attributable to each Unit Holder proportionately in accordance with Exhibit B;
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(C)    any Exchange Existing Basis shall be determined separately with respect to each Unit Holder and is Attributable to each Unit Holder to the extent it is attributable to Common Units that were transferred in an Exchange by such Unit Holder;
(D)    any Basis Adjustments shall be determined separately with respect to each Unit Holder and Rolling Partner and are Attributable to each Unit Holder and Rolling Partner in an amount equal to the total Basis Adjustment relating to Common Units delivered to the Corporation by such Unit Holder or Rolling Partner in the Exchange; and
(E)    any deduction to the Corporation in respect of Imputed Interest is Attributable to the TRA Party that is required to include the Imputed Interest in income (without regard to whether such Person is actually subject to tax thereon).
(ii)     Net Tax Benefit. The “ Net Tax Benefit ” with respect to a TRA Party for a Taxable Year equals the amount of the excess, if any, of (A) 85% of the Cumulative Net Realized Tax Benefit Attributable to such TRA Party as of the end of such Taxable Year over (B) the aggregate amount of all Tax Benefit Payments previously made to such TRA Party under this Section 3.1 (excluding payments attributable to Interest Amounts).
(iii)     Cumulative Net Realized Tax Benefit. The “ Cumulative Net Realized Tax Benefit ” for a Taxable Year equals the cumulative amount of Realized Tax Benefits for all Taxable Years of the Corporation up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination.
(iv)     Realized Tax Benefit. The “ Realized Tax Benefit ” for a Taxable Year equals the excess, if any, of the Hypothetical Tax Liability over the Actual Tax Liability for such Taxable Year. If all or a portion of the Actual Tax Liability for such Taxable Year arises as a result of an audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.
(v)     Realized Tax Detriment. The “ Realized Tax Detriment ” for a Taxable Year equals the excess, if any, of the Actual Tax Liability over the Hypothetical Tax Liability for such Taxable Year. If all or a portion of the Actual Tax Liability for such Taxable Year arises as a result of an audit or similar proceeding by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.
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(vi)     Imputed Interest. The Parties acknowledge that a portion of any Net Tax Benefit payable by the Corporation to a TRA Party under this Agreement is to be treated as Imputed Interest in accordance with applicable Law.
(vii)     Interest Amount. The “ Interest Amount ” in respect of a TRA Party equals interest on the unpaid amount of the Net Tax Benefit with respect to such TRA Party for a Taxable Year, calculated at the Agreed Rate from the due date (without extensions) for filing the U.S. federal income Tax Return of the Corporation for such Taxable Year until the earlier of (A) the date on which no remaining Tax Benefit Payment to the TRA Party is due in respect of such Net Tax Benefit and (B) the applicable Final Payment Date.
(viii)    The TRA Parties acknowledge and agree that, as of the date of this Agreement and the date of any future Exchange that may be subject to this Agreement, the aggregate value of the Tax Benefit Payments cannot be reasonably ascertained for U.S. federal income or other applicable tax purposes. Notwithstanding anything to the contrary in this Agreement, the stated maximum selling price (within the meaning of Treasury Regulation 15A.453-1(c)(2)) with respect to any transfer of Common Units by a TRA Party pursuant to an Exchange shall not exceed the sum of (A) the amounts described in clauses (i) and (iii) of the definition of Amount Realized with respect to such Exchange plus (B) the amount, if any, set forth in the Redemption Notice (as defined in the Limited Partnership Agreement) or other written notification delivered by such TRA Party to the Corporation with respect to the relevant Exchange, and the aggregate Payments under this Agreement to such TRA Party (other than amounts accounted for as interest under the Code) in respect of the Covered Tax Assets relating to the Exchange shall not exceed the amount described in this clause (viii); provided , that if a TRA Party does not set forth any amount in the Redemption Notice, there shall not be any stated maximum selling price with respect to the relevant Exchange for purposes of this Agreement.
(c)     Applicable Principles of Pillar Two. Notwithstanding anything to the contrary in this Agreement, to the extent that any Covered Tax Assets increase UTPR Taxes over the amount of UTPR Taxes that would be payable absent the Covered Tax Assets (as determined on a “with and without” basis in a manner consistent with this Agreement), the Realized Tax Benefit or Realized Tax Detriment shall be decreased or increased, as applicable, to take into account such increase in UTPR Taxes. The TRA Parties agree that the Corporation and the Company may make reasonable assumptions and estimates consistent with the purpose of this section to reduce administrative burdens on the Corporation and the Company when computing whether the Covered Tax Assets resulted in an increase in UTPR Taxes; provided , however , that the Corporation shall disclose any such assumptions or estimates in the Tax Benefit Schedule and such assumptions and estimates shall be subject to the procedures set forth in Section 2.4 .
Section 3.2     No Duplicative Payments. It is intended that the provisions hereunder will not result in the duplicative payment of any amount that may be required under
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this Agreement, and the provisions hereunder shall be consistently interpreted and applied in accordance with that intent.
Section 3.3     Pro-Ration of Payments as Between the TRA Parties .
(a)     Insufficient Taxable Income. Notwithstanding anything in Section 3.1(b) to the contrary, if the aggregate potential Covered Tax benefit of the Corporation as calculated with respect to the Covered Tax Assets (in each case, without regard to the Taxable Year of origination) is limited in a particular Taxable Year because the Corporation does not have sufficient actual taxable income, then the available Covered Tax benefit for the Corporation shall be allocated among the TRA Parties in proportion to the respective Tax Benefit Payment that would have been payable if the Corporation had sufficient taxable income. For example, if the Corporation had $200 of aggregate potential Covered Tax benefits with respect to the Covered Tax Assets in a particular Taxable Year (with $50 of such Covered Tax benefits Attributable to TRA Party A and $150 Attributable to TRA Party B), such that TRA Party A would have been entitled to a Tax Benefit Payment of $42.50 and TRA Party B would have been entitled to a Tax Benefit Payment of $127.50 if the Corporation had sufficient actual taxable income, and if the Corporation instead had insufficient actual taxable income in such Taxable Year, such that the Covered Tax benefit was limited to $100, then $25 of the aggregate $100 actual Covered Tax benefit for the Corporation for such Taxable Year would be allocated to TRA Party A and $75 would be allocated to TRA Party B, such that TRA Party A would receive a Tax Benefit Payment of $21.25 and TRA Party B would receive a Tax Benefit Payment of $63.75.
(b)     Late Payments. If for any reason the Corporation is not able to fully satisfy its payment obligations to make all Tax Benefit Payments due in respect of a particular Taxable Year, then (i) Default Rate Interest will accrue pursuant to Section 5.2 , (ii) the Corporation shall pay the available amount of such Tax Benefit Payments (and any applicable Default Rate Interest) in respect of such Taxable Year to each TRA Party pro rata in accordance with Section 3.3(a) and (iii) no Tax Benefit Payment shall be made in respect of any Taxable Year until all Tax Benefit Payments (and any applicable Default Rate Interest) to all TRA Parties in respect of all prior Taxable Years have been made in full.
Section 3.4     Overpayments . Subject to the procedures described in Section 2.4(a) , to the extent the Corporation makes a payment to a TRA Party in respect of a particular Taxable Year under Section 3.1(a) in an amount in excess of the amount of such payment that should have been made to such TRA Party in respect of such Taxable Year (taking into account Section 3.3 ) under the terms of this Agreement, then such TRA Party shall not receive further payments under Section 3.1(a) or Section 4.3(a) until such TRA Party has foregone an amount of payments equal to such excess; provided , that for the avoidance of the doubt, no TRA Party shall be required to return any payment paid by the Corporation to such TRA Party.
Section 3.5     IPO Existing Basis . Notwithstanding anything to the contrary herein, no Unit Holder shall be entitled to any Tax Benefit Payments with respect to any IPO Existing Basis unless and until such TRA Party has Exchanged (in one or more Exchanges) Common Units equal to 5% of the Common Units held by such Unit Holder immediately prior to
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the IPO (such Common Units, with respect to each TRA Party, such TRA Party’s “ Threshold Exchange Units ”). A Unit Holder which has Exchanged at least the Threshold Exchange Units shall become entitled to receive (a) on the immediately succeeding Final Payment Date, the Tax Benefit Payments foregone as a result of the immediately preceding sentence, if any, and (b) on each subsequent Final Payment Date, the amount of Tax Benefit Payments (including with respect to IPO Existing Basis), if any, otherwise payable to such Unit Holder on such Final Payment Date.
ARTICLE IV
TERMINATION
Section 4.1     Early Termination of Agreement; Acceleration Events .
(a)     Corporation’s Early Termination Right. With the written approval of a majority of the Independent Directors, the Corporation may terminate this Agreement with respect to all or any of the TRA Parties, as and to the extent provided herein, by paying in full such TRA Party or TRA Parties the Early Termination Payment (along with any applicable Default Rate Interest) due to such TRA Party under this Agreement or such lesser amount otherwise agreed to by the Corporation and such TRA Party or TRA Parties.
(b)     Acceleration upon Change of Control. In the event of a Change of Control, the Early Termination Payment (calculated as if an Early Termination Notice had been delivered on the date of the Change of Control) shall become due and payable in accordance with Section 4.3 and the Agreement shall terminate, as and to the extent provided herein.
(c)     Acceleration upon Breach of Agreement. In the event of a Material Breach, the Early Termination Payment (calculated as if an Early Termination Notice had been delivered on the date of the Material Breach) shall become due and payable in accordance with Section 4.3 and the Agreement shall terminate, as and to the extent provided herein. Subject to the next sentence, the Corporation’s failure to make a Payment (along with any applicable Default Rate Interest) within one hundred twenty (120) calendar days of the applicable Final Payment Date shall be deemed to constitute a Material Breach. To the extent that any Tax Benefit Payment is not made by the date that is ninety (90) calendar days after the relevant Final Payment Date because the Corporation (i) is prohibited from making such payment under Section 5.1 or the terms of any agreement governing any Senior Obligations or (ii) does not have, and cannot take commercially reasonable actions to obtain, sufficient funds to make such payment, such failure will not constitute a Material Breach; provided , that (A) such payment obligation nevertheless will accrue at the Default Rate Interest for the benefit of the TRA Parties, (B) the Corporation shall promptly (and in any event, within five (5) Business Days) pay the entirety of the unpaid amount (along with any applicable Default Rate Interest) once the Corporation is not prohibited from making such payment under Section 5.1 or the terms of the agreements governing the Senior Obligations and the Corporation has sufficient funds to make such payment and (C) the failure of the Corporation to comply with the foregoing clause (B) will constitute a Material Breach; provided further, that the interest provision of Section 5.2 shall apply to such late payment (unless the Corporation does not have sufficient funds to make such payment as a result of limitations imposed by any Senior Obligations, in which case Section 5.2
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shall apply, but the Default Rate shall be replaced by the Agreed Rate). Notwithstanding anything to the contrary, it shall be a Material Breach if the Corporation makes any distribution of cash or other property (other than shares of Class A Common Stock) to its stockholders or uses cash or other property to repurchase any capital stock of the Corporation (including Class A Common Stock), in each case, before (x) all Tax Benefit Payments (along with any applicable Default Rate Interest) that are due and payable as of the date the Corporation enters into a binding commitment to make such distribution or repurchase have been paid or (y) sufficient funds for the payment of all Tax Benefit Payments (along with any applicable Default Rate Interest) that are due and payable on the date of the distribution or repurchase have been reserved therefor. The Corporation shall use commercially reasonable efforts to (1) obtain sufficient available funds for the purpose of making Tax Benefit Payments under this Agreement and (2) avoid entering into any agreements that could be reasonably anticipated to materially delay the timing of the making of any Tax Benefit Payments under this Agreement.
(d)    In the case of a termination pursuant to any of the foregoing paragraphs (a), (b) or (c), upon the Corporation’s payment to the relevant TRA Parties of the Early Termination Payment (along with any applicable Default Rate Interest) or such lesser amount agreed to by the Corporation and the relevant TRA Parties, the Corporation shall have no further payment obligations under this Agreement other than with respect to any Tax Benefit Payments (along with any applicable Default Rate Interest) in respect of any Taxable Year ending prior to the Early Termination Effective Date, and such payment obligations shall survive the termination of, and be calculated and paid in accordance with, this Agreement. For the avoidance of doubt, if an Exchange subsequently occurs with respect to Common Units for which the Corporation has paid the Early Termination Payment in full, the Corporation shall have no obligations under this Agreement with respect to such Exchange.
Section 4.2     Early Termination Notice .
(a)    If (i) the Corporation chooses to exercise its termination right under Section 4.1(a) (“ Voluntary Early Termination ”), (ii) a Change of Control occurs or (iii) a Material Breach occurs, the Corporation shall, in each case, deliver to the TRA Parties a reasonably detailed notice of the Corporation’s decision to exercise such right or the occurrence of such event, as applicable (an “ Early Termination Notice ”). In the case of an Early Termination Notice delivered with respect to a Voluntary Early Termination, the Corporation may withdraw such Early Termination Notice and rescind its Voluntary Early Termination at any time prior to the time at which any Early Termination Payment is paid and the terms of this Agreement shall apply as if such Early Termination Notice had never been delivered.
(b)    The Corporation shall deliver to the TRA Representative a schedule showing in reasonable detail the calculation of the Early Termination Payment (an “ Early Termination Schedule ”) (i) simultaneously with the delivery of an Early Termination Notice or (ii) in the case of a termination pursuant to Section 4.1(b) or Section 4.1(c) , as soon as reasonably practicable following the occurrence of the Change of Control or Material Breach giving rise to such termination. The date on which such Early Termination Schedule becomes final in accordance with Section 2.4(a) shall be the “ Early Termination Reference Date ”.
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Section 4.3     Payment upon Early Termination .
(a)     Timing of Payment. By the date that is five (5) Business Days after the Early Termination Reference Date (such date, the “ Final Payment Date ” in respect of the Early Termination Payment), the Corporation shall pay in full to each TRA Party an amount equal to the Early Termination Payment applicable to such TRA Party. Such Early Termination Payment shall be made by the Corporation by wire transfer of immediately available funds to a bank account or accounts designated by the applicable TRA Party.
(b)     Amount of Payment. The “ Early Termination Payment ” payable to a TRA Party pursuant to Section 4.3(a) shall equal the present value, discounted at the Default Rate and determined as of the Early Termination Reference Date, of all Tax Benefit Payments (other than any Tax Benefit Payments in respect of Taxable Years ending prior to the Early Termination Effective Date) that would be required to be paid by the Corporation to such TRA Party, beginning from the Early Termination Effective Date and using the Valuation Assumptions. For the avoidance of doubt, an Early Termination Payment shall be made to each TRA Party in accordance with this Agreement, regardless of whether a TRA Party has Exchanged all of its Common Units as of the Early Termination Effective Date.
ARTICLE V
SUBORDINATION AND LATE PAYMENTS
Section 5.1     Subordination. Notwithstanding any other provision of this Agreement to the contrary, any payment required to be made by the Corporation to the TRA Parties under this Agreement shall rank subordinate and junior in right of payment to any principal, interest or other amounts due and payable in respect of any obligations owed in respect of indebtedness for borrowed money of the Corporation (other than, for the avoidance of doubt, any trade payables, intercompany debt or other similar obligations) (“ Senior Obligations ”) and shall rank pari passu in right of payment with all current or future obligations of the Corporation that are not Senior Obligations.
Section 5.2     Late Payments by the Corporation. Subject to the second proviso in the third sentence of Section 4.1(c) , the amount of any Payment not made to any TRA Party by the applicable Final Payment Date shall be payable together with “ Default Rate Interest ”, calculated at the Default Rate and accruing on the amount of the unpaid Payment from the applicable Final Payment Date until the date on which the Corporation makes such Payment to such TRA Party.
ARTICLE VI

TAX MATTERS; CONSISTENCY; COOPERATION
Section 6.1     Participation in the Corporation’s and the Company’s Tax Matters. Except as otherwise provided herein or in Article IX of the Limited Partnership Agreement, the Corporation shall have full responsibility for, and sole discretion over, all tax matters concerning the Corporation and the Company, including preparing, filing or amending any Tax Return and
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defending, contesting or settling any issue pertaining to taxes; provided , however , that the Corporation shall not settle any issue pertaining to Covered Taxes that is reasonably expected to materially adversely affect the TRA Parties’ rights and obligations under this Agreement without the consent of the TRA Representative, such consent not to be unreasonably withheld or delayed. If the TRA Representative fails to respond to any notice with respect to the settlement of any such issue within thirty (30) calendar days of its receipt of the applicable notice, the TRA Representative shall be deemed to have consented to the proposed settlement or other disposition. Notwithstanding the foregoing, (i) the Corporation shall notify the TRA Representative of, and keep it reasonably informed with respect to, the portion of any audit by any Taxing Authority of the Corporation, the Company or any of the Company’s Subsidiaries, the outcome of which is reasonably expected to materially and adversely affect the TRA Parties’ rights and obligations under this Agreement, including the timing of anticipated Tax Benefit Payments and (ii) the TRA Representative shall have the right to participate in and to monitor at its own expense (but, for the avoidance of doubt, not to control) any such issue in any such tax audit. To the extent there is a conflict between this Agreement and the Limited Partnership Agreement as it relates to tax matters concerning Covered Taxes and the Corporation and the Company, including preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining to taxes, this Agreement shall control.
Section 6.2     Consistency. Except upon the written advice of the Advisory Firm, all calculations and determinations made hereunder, including any Basis Adjustments, the Schedules and the determination of any Realized Tax Benefits or Realized Tax Detriments, shall be made in accordance with the elections, methodologies and positions taken by the Corporation and the Company on their respective Tax Returns. Each TRA Party shall prepare its Tax Returns in a manner consistent with the terms of this Agreement and any related calculations or determinations made hereunder, including the terms of Section 2.1 and the Schedules provided to each such TRA Party, except as otherwise required by Law. In the event that an Advisory Firm is replaced with another Advisory Firm acceptable to the Audit Committee, the TRA Parties shall cause such replacement Advisory Firm to perform its services necessitated by this Agreement using procedures and methodologies consistent with those of the previous Advisory Firm, unless otherwise required by Law or unless the Corporation and all of the TRA Parties agree to the use of other procedures and methodologies.
Section 6.3     Cooperation .
(a)    Each TRA Party shall (i) furnish to the Corporation in a timely manner such information, documents and other materials as the Corporation may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return of the Company or any of its Subsidiaries or contesting or defending any related audit, examination or controversy with any Taxing Authority, or estimating any future Tax Benefit Payments hereunder, (ii) make itself available to the Corporation and its representatives to provide explanations of documents and materials and such other information as the Corporation or its representatives may reasonably request in connection with any of the matters described in clause (i) above and (iii) reasonably cooperate in connection with any such matter.
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(b)    The Corporation shall reimburse the TRA Parties for any reasonable and documented out-of-pocket costs and expenses incurred pursuant to Section 6.3(a) .
ARTICLE VII
MISCELLANEOUS
Section 7.1     Notices. All notices, requests, consents and other communications required or permitted hereunder shall be in writing and (i) delivered personally, (ii) sent by e-mail or (iii) sent by overnight courier, in each case, addressed as follows:
If to the Corporation, to:
Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, IL 60606
Attn: USLegalExternal@lincolninternational.com
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
If to any TRA Party, to the address and e-mail address specified on such TRA Party’s signature page to the applicable Joinder or otherwise on file with the Corporation or the Company.
Any Party may change its address or e-mail address by giving each of the other Parties written notice thereof in the manner set forth above.
Section 7.2     Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the TRA Parties and delivered to the other TRA Parties, it being understood that all TRA Parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by e-mail transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
Section 7.3     Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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Section 7.4     Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other terms and provisions hereunder shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner.
Section 7.5     Assignments; Amendments; Successors; No Waiver .
(a)     Right of First Refusal. Before a TRA Party (such TRA Party, the “ Seller ”) may Transfer any interest in this Agreement, including the right to receive any Tax Benefit Payments under this Agreement (collectively, “ TRA Interests ”), to any Person (other than a Permitted Transferee), for consideration, in addition to any other requirements set forth in this Agreement (including as set forth in Section 7.5(b) ), Seller must comply with the following (the “ Right of First Refusal ”):
(i)    Prior to Seller Transferring any of its TRA Interests to any Person (other than a Permitted Transferee), Seller shall deliver to the Corporation a written notice (the “ Transfer Notice ”) stating: (A) Seller’s bona fide intention to Transfer such TRA Interests; (B) the name, address and phone number of each proposed purchaser or other Transferee (each, a “ Proposed Transferee ”); (C) a description of Seller’s TRA Interests (or portion thereof) proposed to be Transferred to each Proposed Transferee (the “ Offered TRA Interests ”); and (D) the bona fide cash price or, in reasonable detail, other consideration for which Seller proposes to Transfer the Offered TRA Interests (the “ Offered Price ”).
(ii)    For a period of 30 days (the “ Exercise Period ”) after the date on which the Transfer Notice is, pursuant to Section 7.1 , deemed to have been delivered to the Corporation, the Corporation shall have the right to purchase all or any portion of the Offered TRA Interests on the terms and conditions set forth in this Section 7.5(a) . In order to exercise its right hereunder, the Corporation must deliver written notice to elect to purchase to Seller within the Exercise Period. If no such written notice is given within the Exercise Period, the Corporation shall be deemed to have elected not to purchase the Offered TRA Interests.
(iii)    The purchase price for the Offered TRA Interests to be purchased by the Corporation exercising its Right of First Refusal under this Agreement will be the Offered Price and will be payable as set forth in Section 7.5(a)(iv) . If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration will be determined by the Board in good faith, which determination will be binding upon the Corporation and the Seller, absent fraud or manifest error.
(iv)    Subject to compliance with applicable state and federal securities laws, the Corporation and Seller shall effect the purchase and sale of all or any portion of the Offered TRA Interests, including the payment of the purchase price, within ten days
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after the expiration of the Exercise Period or as promptly as otherwise practicable thereafter (the “ Right of First Refusal Closing ”). Payment of the purchase price will be made by wire transfer to a bank account designated by Seller in writing to the Corporation at least 3 days prior to the Right of First Refusal Closing. At such Right of First Refusal Closing, Seller shall deliver to the Corporation, among other things, such documents and instruments of conveyance as may be necessary in the reasonable opinion of counsel to the Corporation to effect the Transfer of such Offered TRA Interests.
(v)    If any of the Offered TRA Interests remain available after the exercise, if any, of the Corporation’s Right of First Refusal, then the Seller shall be free to transfer, subject to the general conditions to transfer set forth in Section 7.5(b) , any such remaining Offered TRA Interests to the Proposed Transferee at the Offered Price set forth in the Transfer Notice; provided , however , that if the Offered TRA Interests are not so transferred during the 90-day period following the delivery of the Transfer Notice, then the Seller may not Transfer any of such remaining Offered TRA Interests without complying again in full with the provisions of this Agreement.
(b)     Assignment. No TRA Party may assign, sell, pledge or otherwise alienate or Transfer any TRA Interests (i) to a competitor (or an Affiliate thereof) of the Company (as determined by the Corporation in its sole discretion) or (ii) to any other Person without such Person executing and delivering a Joinder agreeing to succeed to the applicable portion of such TRA Party’s TRA Interest and to become a Party for all purposes of this Agreement (the “Joinder Requirement”); provided , that, for the avoidance of doubt, prior to any permitted assignment, sale, pledge or other alienation or transfer of an interest in this Agreement for consideration, the Corporation shall have the Right of First Refusal to purchase such TRA Interests from such TRA Party. Notwithstanding the foregoing limitations, if any TRA Party sells, exchanges, distributes or otherwise transfers Common Units to any Person (other than the Corporation or the Company) in accordance with the terms of the Limited Partnership Agreement, such TRA Party shall have the option to assign to the transferee of such Common Units its rights under this Agreement with respect to such transferred Common Units; provided , that such transferee has satisfied the Joinder Requirement. For the avoidance of doubt, if a TRA Party transfers Common Units in accordance with the terms of the Limited Partnership Agreement but does not assign to the transferee of such Common Units its rights and obligations under this Agreement with respect to such transferred Common Units, (i) such TRA Party remains a TRA Party under this Agreement for all purposes, including with respect to the receipt of the Tax Benefit Payments to the extent payable hereunder and (ii) the Transferee of such Common Units shall not be a TRA Party for purposes of this Agreement. The Corporation may not assign any of its rights or obligations under this Agreement to any Person (other than in connection with an assignment under Section 7.5(d) ) without the prior written consent of the TRA Representative (not to be unreasonably withheld, conditioned or delayed). Any purported assignment in violation of the terms of this Section 7.5 shall be null and void.
(c)     Amendments. No provision of this Agreement may be amended unless such amendment is approved in writing by the Corporation and the TRA Representative; provided , that amendment of the definition of Change of Control will also require the written
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approval of a majority of the Independent Directors; provided further, that any amendment that materially and adversely affects one or more TRA Parties on a materially disproportionate basis relative to other similarly situated TRA Parties shall require the consent of a majority (measured by Tax Benefit Payments receivable) of such similarly situated TRA Parties so materially disproportionately affected.
(d)     Successors. Except as provided in Section 7.5(a) , all of the terms and provisions hereunder shall be binding upon, and shall inure to the benefit of and be enforceable by, the Parties and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by equity purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.
(e)     Waiver. No provision of this Agreement may be waived unless such waiver is in writing and signed by the Party against whom the waiver is to be effective. No failure by any Party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.
Section 7.6     Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
Section 7.7     Resolution of Disputes; Governing Law .
(a)    Except for Reconciliation Disputes subject to Section 7.8 , any and all disputes which cannot be settled after good faith negotiation within sixty (60) calendar days, including any ancillary claims of any Party, arising out of, relating to or in connection with the validity, negotiation, execution, interpretation, performance or non-performance of this Agreement (including the validity, scope and enforceability of this Section 7.7 or Section 7.8 ) (each, a “ Dispute ”) shall be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration by the majority vote of a panel of three arbitrators, of which the Corporation shall designate one arbitrator and the TRA Parties that are party to such Dispute shall designate one arbitrator, in each case in accordance with the “screened” appointment procedure provided in Resolution Rule 5.4. In addition to monetary damages, the arbitrators shall be empowered and permitted to award equitable relief, including an injunction and specific performance of any obligation under this Agreement. The arbitrators are not empowered to award damages in excess of compensatory damages, and each TRA Party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. Any award shall be the sole and exclusive remedy between the TRA Parties regarding any claims, counterclaims, issues or accounting presented to the arbitrators. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrators
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may be entered by any court having jurisdiction thereof. The place of the arbitration shall be the State of Delaware.
(b)    Notwithstanding the provisions of paragraph (a) above, any Party may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling another Party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder or enforcing an arbitration award and, for the purposes of this paragraph (b) , each Party (i) expressly consents to the application of paragraphs (c) and (d) of this Section 7.7 to any such action or proceeding and (ii) agrees that proof shall not be required that monetary damages for breach of the provisions hereunder would be difficult to calculate and that remedies at law would be inadequate.
(c)    This Agreement shall be governed in all respects, including as to validity, interpretation and effect, by the internal Laws of the State of Delaware, without giving effect to the conflict of laws rules thereof. Subject to this Section 7.7 and Section 7.8 , the Parties agree that any suit or proceeding in connection with, arising out of or relating to this Agreement shall be instituted only in a Delaware state court (or U.S. federal court) located in the State of Delaware, and the Parties, for the purpose of any such suit or proceeding, irrevocably consent and submit to the exclusive personal jurisdiction and venue of any such court in any such suit or proceeding. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
(d)    Each Party irrevocably and unconditionally waives, to the fullest extent permitted by Law, (i) any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in Section 7.7(b) or 7.7(c) and (ii) the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court.
(e)    Each Party irrevocably consents to service of process by means of notice in the manner provided for in Section 7.1 . Nothing in this Agreement shall affect the right of any Party to serve process in any other manner permitted by Law.
(f)    WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITH THE ADVICE OF ITS COUNSEL, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING, WHETHER A CLAIM, COUNTERCLAIM, CROSS-CLAIM, OR THIRD PARTY CLAIM, DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
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Section 7.8     Reconciliation Procedures .
(a)    In the event that the Corporation and any TRA Party are unable to resolve a disagreement with respect to a Schedule prepared in accordance with the procedures set forth in Section 2.4 or Section 4.2 , as applicable, within the relevant time period designated in this Agreement (a “ Reconciliation Dispute ”), the procedures described in this paragraph (the “ Reconciliation Procedures ”) will apply. The applicable TRA Parties shall, within fifteen (15) calendar days of the commencement of a Reconciliation Dispute, mutually select a nationally recognized expert in the particular area of disagreement (the “ Expert ”) and submit the Reconciliation Dispute to such Expert for determination. The Expert shall be a partner or principal in a nationally recognized accounting firm, and unless the Corporation and such TRA Party agree otherwise, the Expert (and its employing firm) shall not have any material relationship with the Corporation or such TRA Party or other actual or potential conflict of interest. If the applicable Parties are unable to agree on an Expert within such fifteen (15) calendar-day time period, the selection of an Expert shall be treated as a Dispute subject to Section 7.7 and an arbitration panel shall pick an Expert from a nationally recognized accounting firm that does not have any material relationship with the applicable Parties or other actual or potential conflict of interest. The Expert shall resolve any matter relating to (i) an Attribute Schedule, Early Termination Schedule or an amendment to either within thirty (30) calendar days and (ii) a Tax Benefit Schedule or an amendment thereto within fifteen (15) calendar days or as soon thereafter as is reasonably practicable, in each case after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement is due, the undisputed amount shall be paid by the date prescribed by this Agreement and such Tax Return may be filed as prepared by the Corporation, subject to adjustment or amendment upon resolution. The Expert shall finally determine any Reconciliation Dispute, and its determinations pursuant to this Section 7.8(a) shall be binding on the applicable Parties and may be entered and enforced in any court having competent jurisdiction. Any dispute as to whether a dispute is a Reconciliation Dispute within the meaning of this Section 7.8 or a Dispute within the meaning of Section 7.7 shall be decided and resolved as a Dispute subject to the procedures set forth in Section 7.7 .
(b)    Subject to the next sentence, the applicable Parties shall bear their own costs and expenses of such proceeding, unless (i) the Expert adopts the TRA Party’s position, in which case the Corporation shall reimburse the TRA Party for any reasonable and documented out-of-pocket costs and expenses in such proceeding or (ii) the Expert adopts the Corporation’s position, in which case the TRA Parties shall reimburse the Corporation for any reasonable and documented out-of-pocket costs and expenses in such proceeding. The costs and expenses relating to the engagement of such Expert or amending any Tax Return shall be borne by the Corporation.
Section 7.9     Withholding. The Corporation and its Affiliates shall be entitled to deduct and withhold from any payment that is payable to any TRA Party pursuant to this Agreement such amounts as the Corporation is required to deduct and withhold with respect to the making of such payment by applicable Law. To the extent that amounts are so deducted and
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withheld and paid over to the appropriate Taxing Authority by the Corporation, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid by the Corporation to the relevant TRA Party in respect of whom the deduction and withholding was made. Each TRA Party shall promptly provide the Corporation with any applicable tax forms and certifications reasonably requested by the Corporation in connection with determining whether any such deductions and withholdings are required by applicable Law.
Section 7.10     Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets .
(a)    If the Corporation is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income Tax Return pursuant to Section 1501 or other applicable sections of the Code governing affiliated or consolidated groups, or any corresponding provisions of state, local or foreign tax Law, then (i) the provisions of this Agreement shall be applied with respect to the group as a whole, and (ii) Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole.
(b)    If the Corporation or any member of the Company Group transfers Common Units or Reference Assets to a Person treated as a corporation for U.S. federal income tax purposes (other than a member of a group described in Section 7.10(a)), such transferor, for purposes of calculating the amount of any Payment due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such transfer; provided, that the foregoing shall not apply with respect to any such transfer by the Corporation if the Corporation transfers or is deemed to transfer any Common Units or Reference Assets to a transferee that is treated as a corporation for U.S. federal income Tax purposes (other than a member of a group described in Section 7.10(a) ) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property, and the Corporation causes such transferee to assume the obligation to make payments hereunder with respect to the applicable Covered Tax Assets associated with any Reference Asset or interest therein acquired (directly or indirectly) in such transfer (taking into account any gain recognized in the transaction) in a manner consistent with the terms of this Agreement as the transferee (or one of its Affiliates) actually realizes tax benefits from the Covered Tax Assets. With respect to any transfer of Common Units or Reference Assets that is treated as a fully taxable transaction in accordance with the foregoing sentence, the consideration deemed to be received by the Corporation or Company Group member, as the applicable transferor, shall be equal to the fair market value of the transferred asset plus the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset. For purposes of this Section 7.10 , a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s applicable share of each of the assets and liabilities of that partnership. Notwithstanding anything to the contrary set forth herein, if the Corporation or any member of a group described in Section 7.10(a) transfers its assets pursuant to a transaction that qualifies as a “reorganization” (within the meaning of Section 368(a) of the Code) in which such entity does not survive, pursuant to a contribution described in Section 351(a) of the Code or pursuant to any other transaction to which Section 381(a) of the Code applies (other than any such reorganization
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or any such other transaction, in each case, pursuant to which such entity transfers assets to a corporation with which the Corporation or any member of the group described in Section 7.10(a) (excluding any such member being transferred in such reorganization or other transaction) does not file a consolidated Tax Return pursuant to Section 1501 of the Code), the transfer will not cause such entity to be treated as having transferred any assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) pursuant to this Section 7.10(b) .
Section 7.11     Confidentiality. Each TRA Party and each of its respective assignees acknowledges and agrees that the information of the Corporation is confidential and, except in the course of performing any duties as necessary for the Corporation and its Affiliates, as required by Law or legal process or to enforce the terms of this Agreement, such Person shall keep and retain in the strictest confidence and not disclose to any other Person any confidential information acquired pursuant to this Agreement of the Corporation or its controlled Affiliates or their successors. This Section 7.11 shall not apply to (i) any information that has been made publicly available by the Corporation or any of its controlled Affiliates, becomes public knowledge (except as a result of an act of any TRA Party in violation of this Agreement) or is generally known to the business community, (ii) the disclosure of information to the extent necessary for a TRA Party to prosecute or defend claims arising under or relating to this Agreement and (iii) the disclosure of information to the extent necessary for a TRA Party to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such Tax Returns. Notwithstanding anything to the contrary herein, the TRA Parties and each of their assignees (and each employee, representative or other agent of the TRA Parties or their assignees, as applicable) may disclose at their discretion to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the Corporation, the TRA Parties and any of their transactions, and all materials of any kind (including tax opinions or other tax analyses) that are provided to the TRA Parties relating to such tax treatment and tax structure. If a TRA Party or an assignee commits, or threatens to commit, a breach of any of the provisions of this Section 7.11 , the Corporation shall have the right and remedy to have the provisions of this Section 7.11 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Corporation or any of its controlled Affiliates and that money damages alone will not provide an adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at Law or in equity.
Section 7.12     Change in Law. Notwithstanding anything herein to the contrary, if, in connection with an actual or proposed change in Law, a TRA Party reasonably believes that the existence of this Agreement could cause income (other than income arising from receipt of a payment under this Agreement) recognized by such TRA Party (or direct or indirect equity holders in such TRA Party) in connection with any Exchange to be treated as ordinary income (other than with respect to assets described in Section 751(a) of the Code) rather than capital gain (or otherwise taxed at ordinary income rates) for U.S. federal income tax purposes or would have other material adverse tax consequences to such TRA Party or any direct or indirect owner of such TRA Party, then, at the written election of such TRA Party in its sole discretion (in an
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instrument signed by such TRA Party and delivered to the Corporation) and to the extent specified therein by such TRA Party, this Agreement shall cease to have further effect and shall not apply to an Exchange occurring after a date specified by such TRA Party; provided , for the avoidance of doubt, such voluntary termination of rights by a TRA Party shall not result in or cause a termination or acceleration event under Section 4.1 .
Section 7.13     Interest Rate Limitation. Notwithstanding anything to the contrary contained herein, the interest paid or agreed to be paid hereunder with respect to amounts due to any TRA Party hereunder shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If any TRA Party shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the applicable payment (but in each case exclusive of any component thereof comprising interest) or, if it exceeds such unpaid non-interest amount, refunded to the Corporation. In determining whether the interest contracted for, charged or received by any TRA Party exceeds the Maximum Rate, such TRA Party may, to the extent permitted by applicable Law, (i) characterize any payment that is not principal as an expense, fee or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof or (iii) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the payment obligations owed by the Corporation to such TRA Party hereunder. Notwithstanding the foregoing, it is the intention of the Parties to conform strictly to any applicable usury Laws.
Section 7.14     Independent Nature of Rights and Obligations .
(a)    The rights and obligations of each TRA Party hereunder are several and not joint with the rights and obligations of any other Person. A TRA Party shall not be responsible in any way for the performance of the obligations of any other Person hereunder, nor shall a TRA Party have the right to enforce the rights or obligations of any other Person hereunder (other than obligations of the Corporation). The obligations of a TRA Party hereunder are solely for the benefit of, and shall be enforceable solely by, the Corporation. Nothing contained herein or in any other agreement or document delivered in connection herewith, and no action taken by any TRA Party pursuant hereto or thereto, shall be deemed to constitute the TRA Parties acting as a partnership, association, joint venture or any other kind of entity, or create a presumption that the TRA Parties are in any way acting in concert or as a group with respect to such rights or obligations or the transactions contemplated hereby.
(b)    Except as otherwise explicitly provided in this Agreement, the actions of the TRA Representative pursuant to and in accordance with this Agreement shall be binding on all TRA Parties. To the fullest extent permitted by law, neither the TRA Representative nor any TRA Parties shall owe any duties (fiduciary or otherwise) to any other TRA Parties or any other Person in determining to take or refrain from taking any action or decision under or in connection with this Agreement. For purposes of this Agreement, the TRA Parties acknowledge that, in taking or omitting to take any action or decision hereunder, the TRA Representative and each TRA Party shall be permitted to take into consideration solely its own interests and shall have no duty or obligation to give any consideration to any interest of or factors affecting any other TRA Party or any other Person.
34

Section 7.15     Coordination with Limited Partnership Agreement . To the extent this Agreement imposes obligations on the Company or a member of the Company, this Agreement shall be treated as part of the Limited Partnership Agreement as described in Section 761(c) of the Code and sections 1.761-1(c) and 1.704-1(b)(2)(ii)(h) of the Treasury Regulations.
Section 7.16     TRA Representative . By executing this Agreement, each of the TRA Parties shall be deemed to have irrevocably appointed the TRA Representative as its agent and attorney in fact with full power of substitution to act from and after the date hereof and to do any and all things and execute any and all documents on behalf of such TRA Party which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including: (i) execution of the documents and certificates required pursuant to this Agreement; (ii) except to the extent provided in this Agreement, receipt and forwarding of notices and communications pursuant to this Agreement; (iii) administration of the provisions of this Agreement; (iv) any and all consents, waivers, amendments or modifications deemed by the TRA Representative to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (v) taking actions the TRA Representative is authorized to take pursuant to the other provisions of this Agreement; (vi) negotiating and compromising, on behalf of such TRA Parties, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement and executing, on behalf of such TRA Parties, any settlement agreement, release or other document with respect to such dispute or remedy; and (vii) engaging attorneys, accountants, agents or consultants on behalf of such TRA Parties in connection with this Agreement and paying any fees related thereto on behalf of such TRA Parties, subject to reimbursement by such TRA Parties. The TRA Representative may resign upon thirty (30) days’ written notice to the Corporation.
[Signature Page Follows this Page]
35

IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above.
| | | | | | | | | | | | | | |
| CORPORATION: | |
| | | | |
| | | | |
| | LINCOLN INTERNATIONAL, INC. | |
| | | | |
| | | | |
| | | | |
| | By: Theodore J. Heidloff | |
| | | | |
| | Name: Theodore J. Heidloff | |
| | Title: Chief Financial Officer | |

| | | | | | | | | | | | | | |
| COMPANY: | |
| | | | |
| | | | |
| | LINCOLN INTERNATIONAL, LP | |
| | | | |
| | | | |
| | | | |
| | By: Theodore J. Heidloff | |
| | | | |
| | Name: Theodore J. Heidloff | |
| | Title: Chief Financial Officer | |

[Signature Page to Tax Receivable Agreement]

TRA REPRESENTATIVE:
| | | | | | | | | | | |
| | |
| | | |
| | By: /s/ Theodore J. Heidloff |
| | Name: Theodore J. Heidloff |
| | |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Robert Barr |
| | Name: Robert Barr |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Robert Brown |
| | Name: Robert Brown |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Lawrence James Lawson III |
| | Name: Lawrence James Lawson III |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Bradley Akason |
| | Name: Bradley Akason |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Griffin Bealle |
| | Name: Griffin Bealle |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Sean Bennis |
| | Name: Sean Bennis |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Friedrich Bieselt |
| | Name: Friedrich Bieselt |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ William Bowmer |
| | Name: William Bowmer |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ George Bucur |
| | Name: George Bucur |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Jack Calderon |
| | Name: Jack Calderon |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Steve Carre |
| | Name: Steve Carre |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Jeffrey Cleveland |
| | Name: Jeffrey Cleveland |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Jeffrey Corum |
| | Name: Jeffrey Corum |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Christopher Darst |
| | Name: Christopher Darst |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Drill |
| | Name: Michael Drill |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Benjamin M. Farris |
| | Name: Benjamin M. Farris |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Shahab Fatheazam |
| | Name: Shahab Fatheazam |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Kris Figueroa |
| | Name: Kris Figueroa |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Fineman |
| | Name: Michael Fineman |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Fisch |
| | Name: Michael Fisch |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Barry Freeman |
| | Name: Barry Freeman |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Tetsuya Fujii |
| | Name: Tetsuya Fujii |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Brian Garfield |
| | Name: Brian Garfield |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Adam Gifford |
| | Name: Adam Gifford |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Brian Goodwin |
| | Name: Brian Goodwin |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Cynthya Goulet |
| | Name: Cynthya Goulet |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ James Graham |
| | Name: James Graham |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Chris Gregory |
| | Name: Chris Gregory |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Christopher Gresh |
| | Name: Christopher Gresh |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Eric Hallinan |
| | Name: Eric Hallinan |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Robert Hamilton |
| | Name: Robert Hamilton |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Edward A Hanlon |
| | Name: Edward A. Hanlon |
| | |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Neal Hawkins |
| | Name: Neal Hawkins |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Scott Hebbeler |
| | Name: Scott Hebbeler |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Theodore Heidloff |
| | Name: Theodore Heidloff |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Robert Horak |
| | Name: Robert Horak |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ David Houser |
| | Name: David Houser |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Adam Hunia |
| | Name: Adam Hunia |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Iannelli |
| | Name: Michael Iannelli |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Ronald Kahn |
| | Name: Ronald Kahn |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Mathew Kessler |
| | Name: Mathew Kessler |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Bradley Keyworth |
| | Name: Bradley Keyworth |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Kim Kovalski |
| | Name: Kim Kovalski |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Lawrence Levine |
| | Name: Lawrence Levine |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Chaim Lubin |
| | Name: Chaim Lubin |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Patricia Luscombe |
| | Name: Patricia Luscombe |

| | | | | | | | | | | |
| TRA PARTY: |
| TCG Equity Partners GmbH |
| | | |
| | | |
| | By: /s/ Harald Maehrle |
| | Name: Harald Maehrle |
| | Title: Managing Director |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Eric Malchow |
| | Name: Eric Malchow |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Iván Marina |
| | Name: Iván Marina |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Justin May |
| | Name: Justin May |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Thomas McDonald |
| | Name: Thomas McDonald |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Saurin Mehta |
| | Name: Saurin Mehta |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Metz |
| | Name: Michael Metz |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Ryan Mitchell |
| | Name: Ryan Mitchell |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Scott Molinaro |
| | Name: Scott Molinaro |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Brendan J. Murphy |
| | Name: Brendan J. Murphy |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Roderick O'Neill |
| | Name: Roderick O'Neill |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Christopher Petrossian |
| | Name: Christopher Petrossian |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Piric |
| | Name: Michael Piric |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Catherine Pont |
| | Name: Catherine Pont |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Dan Posternak |
| | Name: Dan Posternak |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Robert Reifman |
| | Name: Robert Reifman |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Gaurang Shastri |
| | Name: Gaurang Shastri |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Michael Siano |
| | Name: Michael Siano |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Hardeep Singh |
| | Name: Hardeep Singh |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Alexander Stevenson |
| | Name: Alexander Stevenson |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Christopher D. Stradling |
| | Name: Christopher D. Stradling |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Alysia Tan |
| | Name: Alysia Tan |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Curtis Tatham |
| | Name: Curtis Tatham |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Christine Tiseo |
| | Name: Christine Tiseo |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Phil Trem |
| | Name: Phil Trem |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Scott Twibell |
| | Name: Scott Twibell |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Salvatore Louis Valenzisi |
| | Name: Salvatore Louis Valenzisi |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Gerard Vecchio |
| | Name: Gerard Vecchio |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Charles Walder |
| | Name: Charles Walder |

| | | | | | | | | | | |
| TRA PARTY: |
| | THE LUCIEN G. WEBB DECLARATION OF TRUST
|
| | | |
| | | |
| | By: /s/ Lucien Webb |
| | Name: Lucien Webb |
| | Title:   Trustee |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Mary Weber |
| | Name: Mary Weber |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | THE JOHN M. WEPLER IRREVOCABLE TRUST |
| | | |
| | | |
| | By: /s/ John Wepler |
| | Name: John Wepler |
| | Title: Chief Executive Officer |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Emily R Wildes |
| | Name: Emily R Wildes |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Thomas R. Williams |
| | Name: Thomas R. Williams |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Brent Williams |
| | Name: Brent Williams |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Mark Yurko |
| | Name: Mark Yurko |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Smitha Balasubramanian |
| | Name: Smitha Balasubramanian |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Oyvind Bjordal |
| | Name: Oyvind Bjordal |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Matthew Lee |
| | Name: Matthew Lee |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Gaurav Marathe |
| | Name: Gaurav Marathe |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Monika Nickl |
| | Name: Monika Nickl |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Eric Wijs |
| | Name: Eric Wijs |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Eric Cartier |
| | Name: Eric Cartier |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Ryan O'Toole |
| | Name: Ryan O'Toole |

| | | | | | | | | | | |
| TRA PARTY: |
| | RONDELLI ADVISERS SRL
|
| | | |
| | | |
| | By: /s/ Saverio Rondelli |
| | Name: Saverio Rondelli |
| | Title: Amministratore Unico |

| | | | | | | | | | | |
| TRA PARTY: |
| | ROBERT B. BARR 2025 GRAT |
| | | |
| | | |
| | By: /s/ Robert Barr |
| | Name: Robert Barr |
| | Title: Trustee |

[Signature Page to Tax Receivable Agreement]

| | | | | | | | | | | |
| TRA PARTY: |
| | CURTIS C. TATHAM III REVOCABLE TRUST |
| | | |
| | | |
| | By: /s/ Curtis Tatham |
| | Name: Curtis Tatham |
| | Title: Trustee |

| | | | | | | | | | | |
| TRA PARTY: |
| | | |
| | | |
| | By: /s/ Lucien Webb |
| | Name: Lucien Webb |

| | | | | | | | | | | |
| TRA PARTY: |
| | MARIE-CHRISTINE TISEO TRUST |
| | | |
| | | |
| | By: /s/ Christine Tiseo |
| | Name: Christine Tiseo |
| | Title: Trustee |

[Signature Page to Tax Receivable Agreement]

Exhibit A
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of _______________, 20___ (this “ Joinder ”), is delivered pursuant to that certain Tax Receivable Agreement, dated as of May 19, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Tax Receivable Agreement ”), by and among Lincoln International, Inc., a Delaware corporation (the “ Corporation ”), Lincoln International, LP, a Delaware limited partnership, the TRA Representative and each of the TRA Parties from time to time party thereto. Capitalized terms used but not otherwise defined herein have the respective meanings set forth in the Tax Receivable Agreement.
1.     Tax Receivable Agreement Interest Assignment. The undersigned hereby represents and warrants to the Corporation that, as of the date hereof, the undersigned has been assigned an interest in the Tax Receivable Agreement from a TRA Party.
2.      Joinder to the Tax Receivable Agreement. Upon the execution of this Joinder by the undersigned and delivery hereof to the Corporation, the undersigned hereby is and hereafter will be a TRA Party under the Tax Receivable Agreement, with all the rights, privileges and responsibilities of a party thereunder. The undersigned hereby agrees that it shall comply with and be fully bound by the terms of the Tax Receivable Agreement as if it had been a signatory thereto as of the date thereof.
3.     Incorporation by Reference. All terms and conditions of the Tax Receivable Agreement are hereby incorporated by reference in this Joinder as if set forth herein in full.
4.      Address. All notices under the Tax Receivable Agreement to the undersigned shall be directed to:
[Name]
[Address]
[City, State, Zip Code]
Attn:
Facsimile:
E-mail:
[Signature Page Follows this Page]

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Joinder as of the day and year first above written.
| | | | | | | | | | | | | | |
| | [NAME OF NEW TRA PARTY] | |
| | | | |
| | by | | |
| | | | |
| | | Name:    
| |
| | | Title:    
| |

| | | | | | | | |
LINCOLN INTERNATIONAL, INC.
| |
| | |
By
| |
| | |
| Name:    
| |
| Title:    
| |

Acknowledged and agreed
as of the date first set forth above:

Exhibit B
Net Tax Benefit Splits
| | | | | | | | |
TRA Party
| Transferred IPO Existing Basis Percentage
| IPO Existing Basis Percentage
|
Robert Barr
| | |
Robert B. Barr 2025 GRAT
| | |
Robert Brown
| | |
Lawrence James Lawson III
| | |
Bradley Akason
| | |
Griffin Bealle
| | |
Sean Bennis
| | |
Friedrich Bieselt
| | |
William Bowmer
| | |
George Bucur
| | |
Jack Calderon
| | |
Steve Carre
| | |
Jeffrey Cleveland
| | |
Jeffrey Corum
| | |
Christopher Darst
| | |
Michael Drill
| | |
Benjamin M. Farris
| | |
Shahab Fatheazam
| | |
Kris Figueroa
| | |
Michael Fineman
| | |
Michael Fisch
| | |
Barry Freeman
| | |
Tetsuya Fujii
| | |
Brian Garfield
| | |
Adam Gifford
| | |
Brian Goodwin
| | |
Cynthya Goulet
| | |
James Graham
| | |
Chris Gregory
| | |
Christopher Gresh
| | |
Eric Hallinan
| | |
Robert Hamilton
| | |
Edward A. Hanlon
| | |
Neal Hawkins
| | |
Scott Hebbeler
| | |
Theodore Heidloff
| | |
Robert Horak
| | |
David Houser
| | |
Adam Hunia
| | |
Michael Iannelli
| | |

| | | | | | | | |
Ronald Kahn
| | |
Mathew Kessler
| | |
Bradley Keyworth
| | |
Kim Kovalski
| | |
Lawrence Levine
| | |
Chaim Lubin
| | |
Patricia Luscombe
| | |
Eric Malchow
| | |
Iván Marina
| | |
Justin May
| | |
Thomas McDonald
| | |
Saurin Mehta
| | |
Michael Metz
| | |
Ryan Mitchell
| | |
Scott Molinaro
| | |
Brendan J. Murphy
| | |
Roderick O'Neill
| | |
Christopher Petrossian
| | |
Michael Piric
| | |
Catherine Pont
| | |
Dan Posternak
| | |
Robert Reifman
| | |
Gaurang Shastri
| | |
Michael Siano
| | |
Hardeep Singh
| | |
Alexander Stevenson
| | |
Christopher D. Stradling
| | |
Alysia Tan
| | |
Curtis Tatham
| | |
Curtis C Tatham III Revocable Trust
| | |
Christine Tiseo
| | |
Marie-Christine Tiseo Trust
| | |
Phil Trem
| | |
Scott Twibell
| | |
Salvatore Louis Valenzisi
| | |
Gerard Vecchio
| | |
Charles Walder
| | |
Lucien Webb
| | |
The Lucien G. Webb Declaration of Trust
| | |
Mary Weber
| | |
The John M. Wepler Irrevocable Trust
| | |
Emily R Wildes
| | |
Brent Williams
| | |

| | | | | | | | |
Thomas R. Williams
| | |
Mark Yurko
| | |
Smitha Balasubramanian
| | |
Oyvind Bjordal
| | |
Matthew Lee
| | |
TCG Equity Partners GmbH
| | |
Gaurav Marathe
| | |
Monika Nickl
| | |
Eric Wijs
| | |
Eric Cartier
| | |
Ryan O'Toole
| | |
Rondelli Advisers srl
| | |
Non-Participating Blocker Shareholders aggregate percentage
| | |
Total
| 100% | 100% |

### EX-10.3 - EX-10.3
EX-10.3
6
exhibit103-8xk.htm
EX-10.3

Document
Exhibit 10.3

VOTING AGREEMENT
This VOTING AGREEMENT (this “ Agreement ”), is made and entered into as of May 19, 2026, by and among each of Lawrence James Lawson III, Robert B. Barr, the Robert B. Barr 2025 GRAT, Robert T. Brown, and Eric D. Malchow (the “ Controlling Stockholders ”), and Lincoln International, Inc., a Delaware corporation (the “ Company ”). Unless otherwise specified herein, all capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Company’s Amended and Restated Certificate of Incorporation, dated as of the date hereof (as may be amended from time to time, the “ Restated Certificate ”).
RECITALS
WHEREAS , immediately following the completion of the Company’s initial public offering, the Controlling Stockholders will collectively hold capital stock representing more than fifty percent (50%) of the voting power of all of the then-outstanding shares of capital stock of the Company; and
WHEREAS , the Controlling Stockholders and the Company wish to enter into this Agreement concerning the voting of shares of capital stock of the Company held by the Controlling Stockholders in connection with the election of members of the Board of Directors of the Company (the “ Board ”).
AGREEMENT
NOW, THEREFORE , the parties agree as follows:
1.     Voting Provisions Regarding the Election of Directors . Each Controlling Stockholder, in their capacity as stockholders of the Company and not in any other capacity, agrees to vote, or cause to be voted, all shares of capital stock of the Company that such Controlling Stockholder directly or indirectly owns or over which such Controlling Stockholder has voting control, from time to time and at all times, in favor of the election of each individual nominated by the Board and submitted for approval by the Company’s stockholders in accordance with the Company’s Restated Certificate and the Company’s Amended and Restated Bylaws to serve as director, whether by written consent or at a special or annual meeting of the Company’s stockholders.
2.     Term . This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate upon the earliest to occur of (a) the mutual written agreement of the Company and the Controlling Stockholders and (b) the date on which the Controlling Stockholders collectively hold capital stock representing fifty percent (50%) or less of the voting power of all of the then-outstanding shares of capital stock of the Company.
3.     Miscellaneous .
3.1     Successors and Assigns . The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
3.2     Further Assurances . Each party hereto agrees to cooperate with each other and, at the request of any other party hereto, execute and deliver such further documents and instruments and take all
1

such further actions as any other party may reasonably request in order to evidence or effectuate the provisions of the Agreement and to otherwise carry out the intent of the parties hereunder.
3.3     Severability . If any provision of this Agreement, or the application of such provision to any person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected thereby.
3.4     Governing Law . This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.
3.5     Enforcement of this Agreement . Each party to this Agreement shall have the right to enforce the terms and conditions of this Agreement against any other party in the event of a breach or threatened breach by such other party. In the event that any party (the “ Non-Breaching Party ”) determines that another party (the “ Breaching Party ”) has failed to perform or comply with any of its obligations under this Agreement, the Non-Breaching Party shall be entitled to pursue any and all remedies available at law or in equity. The parties acknowledge and agree that a breach of this Agreement may cause irreparable harm for which monetary damages alone would be an inadequate remedy, and accordingly, the Non-Breaching Party shall be entitled to seek equitable relief, including injunction and specific performance, without the necessity of proving actual damages or posting any bond or other security.
3.6     Counterparts . This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
3.7     Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
3.8     Notices . All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by e-mail or confirmed facsimile if sent during normal business hours of the recipient, and, if not, then on the next Business Day (as defined below); (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one Business Day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. “ Business Day ” means any day, other than a Saturday, Sunday or any other day on which commercial banks located in the State of New York are authorized or obligated by law or executive order to close. All communications shall be sent to such party’s address as set forth
2

below or at such other address as the party shall have furnished to each other party in writing in accordance with this provision:
If to the Company, to:
Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606Telephone: (312) 796-8550
Attn: Kristin M. Marvin, General Counsel
E-mail: [***]
with a copy (which copy shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
E-mail: Steven.Stokdyk@lw.com and Scott.Westhoff@lw.com
If to Lawrence James Lawson III, addressed as follows:
Lawrence James Lawson III
c/o Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606
Telephone: (312) 796-8550
Attn: Kristin M. Marvin, General Counsel
E-mail: [***]
with a copy (which copy shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
E-mail: Steven.Stokdyk@lw.com and Scott.Westhoff@lw.com
If to Robert B. Barr or to the Robert B. Barr 2025 GRAT, addressed as follows:
Robert B. Barr
c/o Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606
Telephone: (312) 796-8550
Attn: Kristin M. Marvin, General Counsel
E-mail: [***]
3

with a copy (which copy shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
E-mail: Steven.Stokdyk@lw.com and Scott.Westhoff@lw.com
If to Robert T. Brown, addressed as follows:
Robert T. Brown
c/o Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606
Telephone: (312) 796-8550
Attn: Kristin M. Marvin, General Counsel
E-mail: [***]
with a copy (which copy shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
E-mail: Steven.Stokdyk@lw.com and Scott.Westhoff@lw.com
If to Eric D. Malchow, addressed as follows:
Eric D. Malchow
c/o Lincoln International, Inc.
110 North Wacker Drive, 51st Floor
Chicago, Illinois 60606
Telephone: (312) 796-8550
Attn: Kristin M. Marvin, General Counsel
E-mail: [***]
with a copy (which copy shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Avenue, Suite 2800
Chicago, Illinois 60611
Attn: Steven B. Stokdyk and Scott W. Westhoff
E-mail: Steven.Stokdyk@lw.com and Scott.Westhoff@lw.com
3.9     Withdrawal . Any Controlling Stockholder may withdraw from this Agreement upon sixty (60) days’ written notice to the Company and each other Controlling Stockholder.
3.10     Consent Required to Amend, Modify, Terminate or Waive . This Agreement may be amended, modified or terminated and the observance of any term hereof may be waived (either
4

generally or in a particular instance and either retroactively or prospectively) only by a written instrument executed by each Controlling Stockholder and the Company.
[SIGNATURE PAGES FOLLOW]
5

IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.
| | | | | | | | |
| LINCOLN INTERNATIONAL, INC. |
| | |
| | |
| | |
| By: | /s/ Kristin M. Marvin |
| | |
| Name: | Kristin M. Marvin |
| Title: | General Counsel |

SIGNATURE PAGE TO VOTING AGREEMENT

IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.
| | | | | | | | | | | |
| CONTROLLING STOCKHOLDERS |
| | | |
| Lawrence James Lawson III |
| | | |
| | | |
| By: | /s/ Lawrence James Lawson III
|
| | | |
| Robert B. Barr |
| | | |
| | | |
| By: | /s/ Robert B. Barr
|
| | | |
| ROBERT B. BARR 2025 GRAT |
| | | |
| | | |
| By: | /s/ Robert B. Barr
|
| Name: Robert B. Barr
|
| Title: Trustee of Robert B. Barr 2025 GRAT |
| | | |
| Robert T. Brown |
| | | |
| | | |
| By: | /s/ Robert T. Brown |
| | | |
| Eric D. Malchow |
| | | |
| | | |
| By: | /s/ Eric D. Malchow |

SIGNATURE PAGE TO VOTING AGREEMENT

### EX-10.4 - EX-10.4
EX-10.4
7
exhibit104-8xk.htm
EX-10.4

Document
Exhibit 10.4

EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “ Agreement ”), dated as of May 21, 2026 (the “ Effective Date ”), is entered into by and between Lincoln International, Inc., a Delaware corporation (“ PubCo ”), Lincoln International LLC (“ OpCo ”) (together with PubCo, the “ Company ”) and Robert Brown (the “ Executive ”).
WHEREAS, the Company desires to employ the Executive and the Company and the Executive desire to enter into an agreement embodying the terms of such employment, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1.     Employment Period . Effective upon the Effective Date, the Executive’s employment hereunder shall be for a term commencing on the Effective Date and continuing through the seventh anniversary thereof (the “ Employment Period ”). Notwithstanding the foregoing, the Executive’s employment with the Company is and shall continue on an “at will” basis, subject to the provisions of Section 4.
2.     Terms of Employment.
(a)  Position and Duties .
(i) Role and Responsibilities . During the Employment Period, the Executive shall serve as the Company’s Chief Executive Officer and shall perform such employment duties as are usual and customary for such position. The Executive shall report directly to the Company’s Board of Directors (the “ Board ”). At the Company’s request, the Executive shall serve the Company and/or its subsidiaries or affiliates in other capacities in addition to the foregoing, consistent with the Executive’s position hereunder. If the Executive, during the Employment Period, serves in any one or more of such additional capacities, the Executive’s compensation shall not be increased beyond that specified in Section 2(b) hereof. In addition, if the Executive’s service in one or more of such additional capacities is terminated, the Executive’s compensation, as specified in Section 2(b), shall not be diminished or reduced in any manner as a result of such termination provided that the Executive otherwise remains employed under the terms of this Agreement.
(ii) Exclusivity . During the Employment Period, and excluding any periods of leave to which the Executive may be entitled, the Executive agrees to devote the Executive’s full business time and attention to the business and affairs of the Company. Notwithstanding the foregoing, during the Employment Period it shall not be a violation of this Agreement for the Executive to: (A) serve on boards, committees or similar bodies of charitable or nonprofit organizations, (B) fulfill limited teaching, speaking and writing engagements, (C) manage the Executive’s personal investments, and (D) engage in any of the activities as set forth on Exhibit A , in each case, so long as such activities do not individually or in the aggregate materially interfere or conflict with the performance of the Executive’s duties and responsibilities under this Agreement; provided, that with respect to the activities in subclauses (A) and/or (B), the Executive receives prior written approval from the Board.
(iii) Principal Location . During the Employment Period, the Executive generally shall perform the services required by this Agreement at the Company’s offices located in Chicago, Illinois (the “ Principal Location ”), provided, however, that the parties acknowledge and agree that the Executive may be required to travel to other locations as may be necessary to fulfill the Executive’s duties and responsibilities hereunder.
(b)  Compensation, Benefits, Etc .
(i)  Base Salary . Effective as of the Effective Date and during the Employment Period, the Executive shall receive a base salary (the “ Base Salary ”) of $500,000 per annum. The Base Salary shall be paid in accordance with the Company’s normal payroll practices for executive salaries generally, but no

less often than monthly and shall be pro-rated for partial years of employment. The Board (or a subcommittee thereof) shall review the Executive’s Base Salary at least annually and shall consider, among other things, increases based on the Executive’s performance and the compensation of chief executive officers at peer companies, which Base Salary may be further increased in the discretion of the Board or a subcommittee thereof, but not reduced, and the term “ Base Salary ” as utilized in this Agreement shall refer to the Base Salary as so increased.
(ii)  Annual Bonus Award . For each calendar year ending during the Employment Period beginning with calendar year 2026, the Executive shall be eligible to earn an annual bonus (an “ Annual Bonus ”) consisting of (1) a cash performance bonus (an “ Annual Cash Bonus ”) under the Company’s bonus plan or program applicable to senior executives for such year and (2) an equity-based compensation award (an “ Annual Equity Award ”) under PubCo’s 2026 Incentive Award Plan, as amended from time to time, or any successor plan thereto (the “ PubCo Plan ”), as determined by the Board (or a subcommittee thereof), from time to time. Unless otherwise agreed to by the Company and Executive, the Annual Cash Bonus will comprise approximately sixty-five percent (65%) of the amount of the Annual Bonus earned for an applicable year and the Annual Equity Award will comprise the remaining approximately thirty-five percent (35%) of the Annual Bonus earned for an applicable year (calculated based on the grant date fair value of such Annual Equity Award). The Board or such subcommittee shall determine in its sole discretion the grant timing, amount, form(s) and mix, and such other terms and conditions (including vesting, exercise and settlement) applicable to any such Annual Equity Award, taking into account the Executive’s and the Company’s performance; provided, however, that such terms and conditions (including vesting, exercise and settlement) shall be reasonably consistent with those applicable to other senior executives of the Company. Any such Annual Equity Award shall be evidenced by a separate award agreement in a form prescribed by the Company, to be entered into by PubCo and the Executive; provided that the vesting provisions set forth in Section 4(b)(ii) of this Agreement shall override any contrary terms in such award agreements. The actual amount of any Annual Bonus earned for an applicable year shall be determined by the Board (or a subcommittee thereof) in its discretion, based on the achievement of individual and/or Company performance goals as determined by the Board (or a subcommittee thereof). The payment of any Annual Bonus, to the extent any Annual Bonus becomes payable, will be made on the date on which annual bonuses are paid generally to the Company’s senior executives, but in no event later than March 15th of the calendar year following the calendar year in which such Annual Bonus was earned. Except as provided in Section 4(c), payment of the Annual Cash Bonus and grant of the Annual Equity Award shall be subject to the Executive’s continued employment through the payment or grant date, as applicable.
(iii) Initial Equity Grant . In recognition of the Executive’s transition from the partnership structure of Lincoln International, LP and to align the Executive’s interests with those of the Company as a public company, on or as soon as practicable following the Effective Date (but in no event later than thirty (30) days thereafter), PubCo shall grant the Executive an initial equity award of restricted stock units under the PubCo Plan that has a target grant value of seven million dollars ($7.0 million) (the “ Initial Equity Award ”). The number of restricted stock units subject to the Initial Equity Award will be determined by dividing the target grant value by the initial price per share established in connection with the Company’s initial public offering. The Initial Equity Award shall vest over 4 (four) years with 50% vesting on the third (3 rd ) anniversary of the Effective Date and the remaining 50% on the fourth (4 th ) anniversary of the Effective Date, subject to the Executive’s continued employment through each such vesting date, except as otherwise provided in Section 4(b)(ii). The Initial Equity Award shall be evidenced by a separate award agreement in a form prescribed by the Company, which agreement shall be consistent with the terms of this Agreement, including without limitation the vesting provisions set forth in Section 4(b)(ii).
(iv) Registration of Shares . No later than ten (10) days following the Effective Date, the Company shall, at its expense, cause the shares of PubCo Class A common stock issuable in respect of the Initial Equity Award and any other equity awards granted to the Executive hereunder to be registered under the Securities Act of 1933, as amended, pursuant to a registration statement on Form S-8 (or other appropriate form) and registered or qualified under applicable state law. The Company shall thereafter use commercially reasonable efforts to maintain the effectiveness of such registration and qualification for so long as the Executive holds any portion of such awards, or until such earlier date as such awards and shares of Pubco Class A common stock, as applicable, may otherwise be freely sold under applicable law.

(v)  Benefits . During the Employment Period, the Executive (and the Executive’s spouse and/or eligible dependents to the extent provided in the applicable plans and programs) shall be eligible to participate in and be covered under the health and welfare benefit plans and programs maintained by the Company for the benefit of its employees from time to time, pursuant to the terms of such plans and programs including any medical, life, hospitalization, dental, disability, accidental death and dismemberment and travel accident insurance plans and programs on the same terms and conditions as those applicable to similarly situated senior executives. In addition, during the Employment Period, the Executive shall be eligible to participate in any retirement, savings and other employee benefit plans and programs maintained from time to time by the Company for the benefit of its senior executive officers. Nothing contained in this Section 2(b)(v) shall create or be deemed to create any obligation on the part of the Company to adopt or maintain any health, welfare, retirement or other benefit plan or program at any time or to create any limitation on the Company’s ability to modify or terminate any such plan or program.
(vi)  Expenses . During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable business expenses incurred by the Executive in connection with the performance of the Executive’s duties under this Agreement in accordance with the policies, practices and procedures of the Company provided to employees of the Company; provided, however, for all international business travel, the Executive shall be entitled to travel business class or equivalent at the Company’s expense.
(vii)  Fringe Benefits . During the Employment Period, the Executive shall be eligible to receive such fringe benefits and perquisites as are provided by the Company to its employees from time to time, in accordance with the policies, practices and procedures of the Company, and shall receive such additional fringe benefits and perquisites as the Company may, in its discretion, from time-to-time provide to its senior executive officers.
(viii)  Vacation . During the Employment Period, the Executive shall be entitled to paid vacation in accordance with the plans, policies, programs and practices of the Company applicable to its senior executive officers, as in effect from time to time.
(ix) Legal Fees . The Company shall reimburse the Executive (or, at the Executive’s election, pay directly to the Executive’s attorneys) for the Executive’s reasonable and documented out-of-pocket legal fees and expenses incurred in connection with the negotiation and finalization of this Agreement; provided, however, that such fees and expenses shall not exceed $50,000 in the aggregate.
(x) Board Seat . The Company shall take all actions in its control necessary to cause the Executive to be appointed to the Board as of the Effective Date and to be nominated by the Board for election to the Board at each annual meeting of the Company’s stockholders during the Employment Period; provided that the foregoing shall not be required to the extent prohibited by legal or regulatory requirements. The failure of the Company to appoint or nominate the Executive to the Board as required by this Section 2(b)(x) shall constitute Good Reason under Section 10(h) of this Agreement other than if (i) the Board has undertaken steps to make a formal determination that any of the events constituting Cause have occurred pursuant to Section 9(c) of this Agreement, (ii) the Executive has issued a Notice of Termination or (iii) during any period in which the Executive is subject to a Disability.
3.     Termination of Employment.
(a) Death or Disability . The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. Either the Company or the Executive may terminate the Executive’s employment in the event of the Executive’s Disability during the Employment Period.
(b) Termination by the Company . The Company may terminate the Executive’s employment during the Employment Period for Cause or without Cause. In the event of a termination without Cause, the Company must provide the Executive one hundred eighty (180) days prior written notice thereof. Provided, however, that the Board shall have the right to relieve the Executive, in whole or in part, of the Executive’s duties under this Agreement or to

accelerate the date of termination; provided that if the Company accelerates the date of termination, the Company shall (a) provide Executive written notice of such acceleration at least thirty (30) days before the acceleration occurs and (b) pay the Executive a lump sum payment in an amount equal to the pro rata portion of the Executive’s Base Salary for the period by which the one hundred eighty (180) day notice period was shortened.
(c) Termination by the Executive . The Executive’s employment may be terminated by the Executive for any or no reason, including with Good Reason or by the Executive without Good Reason.
(d) Notice of Termination . Any termination of employment (other than due to the Executive’s death), shall be communicated by a Notice of Termination to the other parties hereto given in accordance with Section 12(b). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.
(e) Termination of Offices and Directorships; Return of Property . Upon termination of the Executive’s employment for any reason, unless otherwise specified in a written agreement between the Executive and the Company, the Executive shall be deemed to have resigned from all offices, directorships, and other employment positions if any, then held with the Company, and shall take all actions reasonably requested by the Company to effectuate the foregoing. In addition, upon the termination of the Executive’s employment for any reason, the Executive agrees to return to the Company all documents of the Company and its Affiliates (and all copies thereof) and all other property of the Company or its Affiliates that the Executive has in the Executive’s possession, custody or control. Such property includes, without limitation: (i) any materials of any kind that the Executive knows contain or embody any proprietary or confidential information of the Company or an Affiliate of the Company (and all reproductions thereof), (ii) computers (including, but not limited to, laptop computers, desktop computers and similar devices) and other portable electronic devices (including, but not limited to, tablet computers), cellular phones/smartphones, credit cards, phone cards, entry cards, identification badges and keys, and (iii) any correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the customers, business plans, marketing strategies, products and/or processes of the Company or any of its Affiliates and any information received from the Company or any of its Affiliates regarding third parties.
4.     Obligations of the Company upon Termination.
(a) Accrued Obligations; Equity Awards .
(i) If the Executive’s employment under this Agreement terminates during the Employment Period for any reason, the Company will pay or provide to the Executive: (A) any earned but unpaid Base Salary and accrued vacation time, (B) reimbursement of any business expenses incurred by the Executive prior to the Date of Termination that are reimbursable in accordance with Section 2(b)(vi), and (C) any vested amounts due to the Executive under any plan, program or policy of the Company (together, the “ Accrued Obligations ”). The Accrued Obligations described in clauses (A) and (B) of the preceding sentence shall be paid within 30 days after the Date of Termination (or such earlier date as may be required by applicable law) and the Accrued Obligations described in clause (C) of the preceding sentence shall be paid in accordance with the terms of the governing plan or program .
(ii) Each outstanding equity or equity-based award granted to the Executive by PubCo that is outstanding and, if applicable, unexercised as of the Date of Termination shall be governed by the applicable award agreement evidencing such award.
(b) Qualifying Termination . Subject to Sections 4(d), 4(f) and 12(d), and the Executive’s continued compliance with the provisions of Section 7, if the Executive’s employment with the Company is terminated during the Employment Period due to a Qualifying Termination, then in addition to the Accrued Obligations:
(i) Cash Severance . The Company shall pay the Executive the “ Severance ”, which is defined and will be calculated by the Company as follows: (1) the sum of the Executive’s Base Salary

and Annual Cash Bonus earned with respect to each of the last three consecutive completed calendar years immediately preceding the Date of Termination (or during such shorter actual time of employment, as applicable); (2) calculate the average of the three twelve-month periods (or such shorter actual time of employment, as applicable) identified in step one to arrive at the “ Average Annual Cash Compensation ”; and (3) multiply by three (3x) the Average Annual Cash Compensation to arrive at the total gross amount of Severance. The Severance shall be paid in substantially equal installments in accordance with the Company’s normal payroll practices over the twenty-four (24)-month period following the Date of Termination, but shall commence on the first normal payroll date following the 60 th day following the Date of Termination, and amounts otherwise payable prior to such first payroll date shall be paid on such date without interest thereon.
(ii) Equity Awards . Each outstanding time-based vesting equity or equity-based award (including the Initial Equity Award) granted to the Executive by PubCo that is outstanding and, if applicable, unexercised as of the Date of Termination, shall continue to vest according to its terms as if no Qualifying Termination had occurred. The provisions of this Section 4(b)(ii) shall override any contrary terms in individual award agreements evidencing such awards.
(iii) Pro-Rated Bonus . The Company shall pay the Executive, in a single lump sum cash payment within 60 days following the Date of Termination, an amount equal to a pro rata portion of the Executive’s Annual Cash Bonus for the partial calendar year in which the Date of Termination occurs (prorated based on the number of days in the calendar year in which the Date of Termination occurs, through the Date of Termination). For purposes of this Section 4(b)(iii), the Annual Cash Bonus shall be deemed to be the average of the Executive’s annual cash bonus earned during each of the three consecutive completed calendar years immediately preceding the Date of Termination.
(iv)   COBRA . Subject to the Executive’s valid election to continue healthcare coverage under Section 4980B of the Code, the Company shall continue to provide, during the COBRA Period, the Executive and the Executive’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Executive as would have applied if the Executive’s employment had not been terminated based on the Executive’s elections in effect on the Date of Termination, provided , however , that (A) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company is otherwise unable to continue to cover the Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in either case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). For purposes of this Agreement, “ COBRA Period ” shall mean the period beginning on the Date of Termination and ending on the second anniversary thereof.
(c) Death or Disability . If the Executive’s employment with the Company terminates as a result of the Executive’s death or Disability, then the Executive (or the Executive’s estate) shall receive the Accrued Obligations, and, subject to Section 4(d), shall be eligible to receive (i) an amount equal to a pro rata portion of the Executive’s Annual Bonus for the partial calendar year in which the Date of Termination occurs, based on the actual achievement of applicable performance goals as determined by the Board (or a subcommittee thereof) (prorated based on the number of days in the calendar year in which the Date of Termination occurs, through the Date of Termination), payable as provided in Section 2(b)(ii), and (ii) (1) in the case of the Executive’s death, immediate acceleration and full vesting of all outstanding time-based vesting equity or equity-based awards (including the Initial Equity Award) granted to the Executive by PubCo, which awards shall become fully exercisable or non-forfeitable as of the Date of Termination and (2) in the case of the Executive’s Disability, the continued vesting of all outstanding time-based vesting equity or equity-based awards (including the Initial Equity Award) granted to the Executive by PubCo as if such Disability had not occurred, which awards shall become non-forfeitable as of the Date of Termination. The provisions of this Section 4(c) shall override any contrary terms in individual award agreements evidencing such awards.

(d) Release . Notwithstanding the foregoing, it shall be a condition to the Executive’s (or the Executive’s estate’s) right to receive the amounts provided for in Section 4(b) or 4(c) that the Executive (or the Executive’s estate, if applicable) execute and deliver to the Company an effective release of claims in substantially the form attached hereto as Exhibit B (the “ Release ”) and the Release becomes irrevocable within 30 days (or, to the extent required by law, 52 days) following the Date of Termination.
(e) Other Terminations . Except as otherwise set forth in a written agreement by and between the Executive and the Company, if the Executive’s employment is terminated for any reason not described in Section 4(b) or 4(c), the Company will pay the Executive only the Accrued Obligations.
(f) Six-Month Delay . Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under this Section 4, shall be paid to the Executive during the six-month period following the Executive’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first day of the seventh month following the date of Separation from Service (or such earlier date upon which such amount can be paid under Section 409A without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Executive during such period.
(g) Exclusive Benefits . Except as expressly provided in this Section 4 and subject to Section 5, the Executive shall not be entitled to any additional payments or benefits upon or in connection with the Executive’s termination of employment.
5.     Non-Exclusivity of Rights . Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.
6.     Excess Parachute Payments; Limitation on Payments.
(a) Best Pay Cap . Notwithstanding any other provision of this Agreement, if any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4, being hereinafter referred to as the “ Total Payments ”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “ Excise Tax ”), then, the Total Payments shall be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). If the Total Payments are so reduced, the Company shall reduce or eliminate the Total Payments (A) by first reducing or eliminating the portion of the Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (C)), (B) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (C)) and (C) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time.
(b) Certain Exclusions . For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into

account which, in the written opinion of an independent, nationally recognized accounting firm (the “ Independent Advisors ”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
7.     Restrictive Covenants . The Executive and the Company agree that the Executive shall remain bound by the provisions of that certain Proprietary Interests Protection Agreement that Executive executed on February 23, 2026 (the “ PIPA ”), which is incorporated herein by reference and attached hereto as Exhibit C . However, in consideration of the Executive’s continued employment with the Company and the Company’s agreement t