KE 48757670

James H.M. Sprayregen, P.C. Michael A. Condyles (VA 27807)

Anup Sathy, P.C. (admitted pro hac vice) Peter J. Barrett (VA 46179)

Steven N. Serajeddini (admitted pro hac vice) Jeremy S. Williams (VA 77469)

KIRKLAND & ELLIS LLP KUTAK ROCK LLP

KIRKLAND & ELLIS INTERNATIONAL LLP 901 East Byrd Street, Suite 1000

300 North LaSalle Richmond, Virginia 23219-4071

Chicago, Illinois 60654 Telephone: (804) 644-1700

Telephone: (312) 862-2000 Facsimile: (804) 783-6192

Facsimile: (312) 862-2200

-andJoshua A. Sussberg, P.C. (admitted pro hac vice)

Matthew C. Fagen (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

THE GYMBOREE CORPORATION, et al.,

1

) Case No. 17-32986 (KLP)

)

Debtors. ) (Jointly Administered)

)

NOTICE OF FILING OF FIRST AMENDED SUPPLEMENT TO THE 

AMENDED JOINT CHAPTER 11 PLAN OF REORGANIZATION OF

THE GYMBOREE CORPORATION AND ITS DEBTOR AFFILIATES

PLEASE TAKE NOTICE THAT on August 17, 2017, the above-captioned debtors and 

debtors in possession (collectively, the “Debtors”), filed the Notice of Filing of Supplement to the 

First Amended Joint Chapter 11 Plan of Reorganization of The Gymboree Corporation and Its 

Debtor Affiliates [Docket No. 535] (the “First Plan Supplement”).

PLEASE TAKE FURTHER NOTICE THAT the Debtors hereby file this first 

amendment to the First Plan Supplement (this “First Amended Plan Supplement” and, together 

 

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 

number, include: The Gymboree Corporation (5258); Giraffe Intermediate B, Inc. (0659); Gym-Card, LLC 

(5720); Gym-Mark, Inc. (6459); Gymboree Manufacturing, Inc. (6464); Gymboree Retail Stores, Inc. (6461); 

Gymboree Operations, Inc. (6463); and S.C.C. Wholesale, Inc. (6588). The location of the Debtors’ service 

address is 71 Stevenson Street, Suite 2200, San Francisco, California 94105. 

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2

with the First Plan Supplement, the “Plan Supplement”), in support of the Amended Joint 

Chapter 11 Plan of Reorganization of The Gymboree Corporation and Its Debtor Affiliates

[Docket No. 583] (as amended or modified from time to time and including all exhibits and

supplements thereto, the “Plan”),

2

filed in these chapter 11 cases on August 30, 2017.

PLEASE TAKE FURTHER NOTICE that the current draft forms of the following 

documents, as each may be modified, amended, or supplemented from time to time in 

accordance with the Plan, are attached hereto:

 Exhibit A – Form of New Organizational Documents

Exhibit A-1 – Amended and Restated Certificate of Incorporation of [Giraffe 

New Holding Co., Inc.]

Exhibit A-1 (a) – A comparison showing changes to the Amended and 

Restated Certificate of Incorporation of [Giraffe New Holding Co., Inc.] filed 

on August 17, 2017.

Exhibit A-2 – Amended and Restated Bylaws of [Giraffe New Holding Co., Inc.]

Exhibit A-2 (a) – A comparison showing changes to the Amended and 

Restated Bylaws of [Giraffe New Holding Co., Inc.] filed on August 17, 2017.

Exhibit A-7 – Amended and Restated Articles of Incorporation of Gymboree 

Manufacturing, Inc.

Exhibit A-8 – Amended and Restated Articles of Incorporation of Gymboree 

Operations, Inc.

Exhibit A-9 – Amended and Restated Articles of Incorporation of GymMark, Inc.

Exhibit A-10 – Amended and Restated Articles of Incorporation of S.C.C. 

Wholesale, Inc.

Exhibit A-11 – Articles of Organization—Conversion of Gymboree Retail 

Stores LLC

 Exhibit B – Exit Financing Term Sheets

 Exhibit E – Retained Causes of Action

Exhibit E (a) – A comparison showing changes to the Retained Causes of 

Action filed on August 17, 2017.

 

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Plan.

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3

 Exhibit F – New Stockholders’ Agreement

Exhibit F (a) – A comparison showing changes to the New Stockholders’ 

Agreement filed on August 17, 2017.

 Exhibit G – Registration Rights Agreement

Exhibit G (a) – A comparison showing changes to the Registration Rights 

Agreement filed on August 17, 2017.

 Exhibit H – Section 1129(a)(5) Disclosures

Exhibit H (a) – A comparison showing changes to the Section 1129(a)(5) 

Disclosures filed on August 17, 2017.

PLEASE TAKE FURTHER NOTICE that the documents contained in the 

Plan Supplement are integral to, and are considered part of, the Plan. If the Plan is approved, the 

documents contained in the Plan Supplement will be approved by the Bankruptcy Court pursuant 

to the Confirmation Order.

PLEASE TAKE FURTHER NOTICE THAT the Debtors reserve the right to alter, 

amend, modify, or supplement any document in the Plan Supplement in accordance with the 

Plan; provided, that if any document in this Plan Supplement is altered, amended, modified, or 

supplemented in any material respect prior to the date of the Confirmation Hearing, the Debtors 

will file a blackline of such document with the Bankruptcy Court.

PLEASE TAKE FURTHER NOTICE that a hearing at which the Court will consider 

Confirmation of the Plan (the “Confirmation Hearing”) will commence before the Honorable 

Keith L. Phillips, United States Bankruptcy Judge, on September 7, 2017, at 11:00 a.m., 

prevailing Eastern Time, in the United States Bankruptcy Court for the Eastern District of 

Virginia, 701 East Broad Street, Courtroom 5100, Richmond, Virginia 23219. The Confirmation 

Hearing may be continued from time to time by the Court or the Debtors without further notice

other than by such adjournment being announced in open court or by the filing of a notice of 

adjournment with the Court.

PLEASE TAKE FURTHER NOTICE that if you would like to obtain copies of the 

Plan, the Plan Supplement, any amendments thereto, and any other related documents, please 

contact the Debtors’ Solicitation Agent, Prime Clerk, LLC, (a) by calling (844) 822-9233 or, for 

international callers, (646) 486-7945, (b) by email at gymboreeballots@primeclerk.com, or 

(c) by visiting the Debtors’ restructuring website at https://cases.primeclerk.com/gymboree. You 

may also obtain copies of any pleadings filed in these chapter 11 cases for a fee via PACER at: 

http://www.vaeb.uscourts.gov.

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Dated: August 31, 2017 /s/ Michael A. Condyles

Richmond, Virginia Michael A. Condyles (VA 27807)

Peter J. Barrett (VA 46179)

Jeremy S. Williams (VA 77469)

KUTAK ROCK LLP

901 East Byrd Street, Suite 1000

Richmond, Virginia 23219-4071

Telephone: (804) 644-1700

Facsimile: (804) 783-6192

Email: Michael.Condyles@KutakRock.com

Peter.Barrett@KutakRock.com

Jeremy.Williams@KutakRock.com

-andJames H.M. Sprayregen, P.C.

Anup Sathy, P.C. (admitted pro hac vice)

Steven N. Serajeddini (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayregen@kirkland.com

anup.sathy@kirkland.com

steven.serajeddini@kirkland.com

-andJoshua A. Sussberg, P.C. (admitted pro hac vice)

Matthew C. Fagen (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

Email: joshua.sussberg@kirkland.com

matthew.fagen@kirkland.com

Co-Counsel to the Debtors and Debtors in Possession

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EXHIBIT A

Form of New Organizational Documents

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EXHIBIT A-1

Amended and Restated Certificate of Incorporation of [Giraffe New Holding Co., Inc.]

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Milbank Draft

8/31/17

#4852-8522-7852

AMENDED AND

RESTATED CERTIFICATE OF

INCORPORATION OF

GIRAFFE NEW HOLDING CO., INC.

Giraffe New Holding Co., Inc., a corporation organized and existing under the

laws of the State of Delaware (the “Corporation”), pursuant to Sections 242 and 245 of the

General Corporation Law of the State of Delaware, as it may be amended from time to time (the

“DGCL”), hereby certifies as follows:

1. The name of this corporation is Giraffe New Holding Co., Inc. The original Certificate of 

Incorporation of the Corporation (the “Original Certificate of Incorporation”) was filed on 

[●].

2. The Corporation and its affiliated debtors filed a plan of reorganization pursuant to Chapter 

11 of the United States Bankruptcy Code on June 16, 2017, which was confirmed by the 

United States Bankruptcy Court for the Eastern District of Virginia on [●], 2017 (including 

all exhibits, schedules and supplements thereto and as amended from time to time in 

accordance with the terms thereof, the “Plan”). This Amended and Restated Certificate of 

Incorporation of the Corporation (this “Amended and Restated Certificate of 

Incorporation”) has been duly adopted in accordance with Sections 242, 245 and 303 of the 

DGCL, pursuant to the authority granted to the Corporation under Section 303 of the DGCL 

and pursuant to the Plan.

3. This Amended and Restated Certificate of Incorporation amends and restates the Original

Certificate of Incorporation to read in its entirety as follows:

ARTICLE I

NAME OF CORPORATION

The name by which the corporation is to be known is Giraffe New Holding Co., 

Inc. (the “Corporation”).

ARTICLE II

REGISTERED OFFICE; REGISTERED AGENT

The address of the Corporation’s registered office in the State of Delaware is [●]. 

The name of the registered agent of the corporation at such address is [●].

ARTICLE III

PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for

which corporations may be organized under the DGCL.

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2

ARTICLE IV

STOCK

Section 1. Authorized Stock. The total number of shares of all classes of capital 

stock that the Corporation has authority to issue is [●] shares, consisting of: (a) [●] shares of 

Common Stock, par value $0.01 per share (“Common Stock”), and (b) [●] shares of Preferred 

Stock, par value $0.01 per share (“Preferred Stock”). The number of authorized shares of 

Common Stock or Preferred Stock may be increased or decreased (but not below the number of 

shares thereof then outstanding) by the affirmative vote of the holders of capital stock of the 

Corporation representing a majority of the voting power of all the then-outstanding shares of 

capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of 

Section 242(b)(2) of the DGCL (or any successor provision thereto), unless this Amended and 

Restated Certificate of Incorporation of the Corporation (this “Amended and Restated 

Certificate of Incorporation”), including any Preferred Stock Designation (as defined below), 

otherwise requires the vote of the holders of Common Stock or Preferred Stock voting separately 

as a class.

Section 2. Common Stock.

(a) Voting Rights. Except as otherwise provided in this Amended and Restated 

Certificate of Incorporation or as required by applicable law, the holders of Common Stock shall 

at all times vote together as one class on all matters (including the election of directors) 

submitted to a vote or for the consent of the stockholders of the Corporation. Each holder of 

Common Stock shall be entitled to one (1) vote for each share of Common Stock held as of the 

applicable date on any matter that is submitted to a vote or for the consent of the stockholders of 

the Corporation. Except as otherwise required by applicable law, holders of Common Stock 

shall not be entitled to vote on any amendment to this Amended and Restated Certificate of 

Incorporation (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 Amended and Restated Certificate of Incorporation (including any Preferred 

Stock Designation) or pursuant to the DGCL, provided that such amendment does not alter or 

change the designations, powers, preferences or rights of the shares of Common Stock so as to 

affect them adversely.

(b) Dividends. Subject to the rights of the holders of Preferred Stock, the holders of 

Common Stock shall be entitled to share equally, on a per share basis, in such dividends and 

other distributions of cash, property or shares of stock of the Corporation as may be declared by 

the Board of Directors of the Corporation (the “Board of Directors”) from time to time with 

respect to the Common Stock out of assets or funds of the Corporation legally available therefor.

(c) Liquidation Rights. In the event of the voluntary or involuntary liquidation, 

dissolution, distribution of assets or winding up of the Corporation, the holders of Common 

Stock shall be entitled to share equally, on a per share basis, all assets of the Corporation of 

whatever kind available for distribution to the holders of Common Stock.

(d) Merger or Consolidation. In the case of any distribution or payment in respect of 

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3

the shares of Common Stock upon the consolidation or merger of the Corporation with or into 

any other entity, or in the case of any other transaction having an effect on stockholders of the 

Corporation substantially similar to that resulting from a consolidation or merger, such 

distribution or payment shall be made ratably on a per share basis among the holders of Common 

Stock as a single class.

Section 3. Preferred Stock. Shares of Preferred Stock may be issued by the 

Corporation from time to time in one or more series. The Board of Directors (or any committee 

to which it may duly delegate the authority granted in this Article IV) is hereby empowered to 

authorize, to the fullest extent now or hereafter permitted by the laws of the State of Delaware, to 

provide for the issuance of shares of Preferred Stock in one or more series, for such 

consideration and for such corporate purposes as the Board of Directors (or such committee 

thereof) may from time to time determine and, by filing a certificate pursuant to the applicable 

law of the State of Delaware (hereinafter referred to as a “Preferred Stock Designation”), to 

establish from time to time for each such series the number of shares to be included in each such 

series, and to fix the designations, powers, rights and preferences of the shares of each such 

series and any qualifications, limitations or restrictions thereof to the fullest extent now or 

hereafter permitted by this Amended and Restated Certificate of Incorporation and the laws of 

the State of Delaware, including, without limitation, voting rights (if any), dividend rights, 

dissolution rights, conversion rights, exchange rights and redemption rights thereof, as shall be 

stated and expressed in a resolution or resolutions adopted by the Board of Directors (or such 

committee thereof) providing for the issuance of such series of Preferred Stock. Each series of 

Preferred Stock shall be distinctly designated.

Section 4. Nonvoting Stock. To the extent prohibited by Section 1123 of the 

Bankruptcy Code, the Corporation shall not issue any class or series of nonvoting equity 

securities; provided, however, that the foregoing (x) will have no force and effect beyond that 

required under Section 1123 of the Bankruptcy Code and (y) may be amended or eliminated in 

accordance with applicable law as from time to time in effect. For the purposes of this Section 4

of this Article IV, any class or series of equity securities that has only such voting rights as are 

mandated by the DGCL shall be deemed to be nonvoting for purposes of the restrictions of this 

Section 4 of this Article IV.

ARTICLE V

DIRECTORS

Section 1. Director Powers. The business and affairs of the Corporation shall be 

managed by or under the direction of the Board of Directors. In addition to the powers and 

authority expressly conferred upon them by statute or by this Amended Restated Certificate of 

Incorporation or the Bylaws of the Corporation (as may be amended or restated from time to

time, the “Bylaws”), the directors are hereby empowered to exercise all such powers and do all 

such acts and things as may be exercised or done by the Corporation.

Section 2. Number of Directors. The initial number of directors shall be seven (7). 

The number of directors shall be fixed from time to time by the affirmative vote of a majority of 

the Whole Board (as defined below).

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Section 3. Elections. Unless and except to the extent that the Bylaws shall so

require, elections of directors need not be by written ballot.

Section 4. Classes of Directors and Term of Office. The Board of Directors shall be 

divided into three classes, designated Class I, Class II and Class III, and the term of office of 

directors of one class shall expire at each annual meeting of stockholders of the Corporation, and 

in all cases as to each director until his or her successor shall be duly elected and qualified or 

until his or her earlier resignation, removal from office, death or incapacity. All members of the 

Board of Directors then in office shall be assigned to a class, and the director(s) assigned to Class 

I shall hold office for a term expiring at the first regularly scheduled annual meeting of 

stockholders of the Corporation following the effectiveness of this provision, the director(s) 

assigned to Class II shall hold office for a term expiring at the second regularly scheduled annual 

meeting of stockholders of the Corporation following the effectiveness of this provision, and the 

director(s) assigned to Class III shall hold office for a term expiring at the third regularly 

scheduled annual meeting of stockholders of the Corporation following the effectiveness of this 

provision. At each succeeding annual meeting of stockholders of the Corporation, a number of 

directors equal to the number of directors of the class whose term expires at the time of such 

meeting (or, if less, the number of directors properly nominated and qualified for election) shall 

be elected to hold office until the third succeeding annual meeting of stockholders of the 

Corporation after their election.

ARTICLE VI

AMENDMENTS TO BYLAWS

The Board of Directors shall have the power to adopt, amend or repeal the 

Bylaws. Any adoption, amendment or repeal of the Bylaws by the Board of Directors shall 

require the approval of a majority of the Whole Board. For purposes of this Amended and 

Restated Certificate of Incorporation, the term “Whole Board” shall mean the total number of 

authorized directors whether or not there exist any vacancies in previously authorized 

directorships.

ARTICLE VII

DIRECTOR LIABILITY

To the fullest extent permitted by the DGCL, a director of the Corporation shall 

not be personally liable to the Corporation or its stockholders for monetary damages for breach 

of fiduciary duty as a director (it being understood that, without limiting the foregoing, if in the 

future the DGCL is amended or modified (including with respect to Section 102(b)(7) thereof) to 

permit the further limitation or elimination of the personal liability of a director of the 

Corporation to a greater extent than contemplated above, then the provisions of this Article VII

shall be deemed to provide for the elimination of the personal liability of the directors of the 

Corporation to such greater extent). This Article VII shall not eliminate or limit the liability of a 

director for any act or omission occurring prior to the date when this Article VII becomes 

effective. Any repeal or amendment or modification of this Article VII, or the adoption of any 

provision of this Amended and Restated Certificate of Incorporation inconsistent with this 

Article VII, will, to the extent permitted by applicable law, be prospective only (except to the 

extent such amendment or change in applicable law permits the Corporation to provide a broader 

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5

limitation on a retroactive basis than permitted prior thereto), and will not adversely affect any 

limitation on the personal liability of any director of the Corporation at the time of such repeal or 

amendment or modification or adoption of such inconsistent provision.

ARTICLE VIII

INDEMNIFICATION AND INSURANCE

Section 1. Right to Indemnification. Each person who was or is made a party or is 

threatened to be made a party to or is involved in any threatened, pending or completed action, 

suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (hereinafter

referred to as a “proceeding”), by reason of the fact that such person, or a person of whom such 

person is the legal representative, is or was or has agreed to become a director or officer of the 

Corporation, or while a director or officer of the Corporation is or was serving or has agreed to 

serve at the request of the Corporation in any capacity, including as a director, officer, employee, 

fiduciary or agent, of another corporation or of a partnership, joint venture, trust or other 

enterprise, including, without limitation, service with respect to employee benefit plans 

maintained or sponsored by the Corporation or any of its subsidiaries (an “Indemnitee”), 

whether the basis of such proceeding is alleged action in an official capacity as a director, 

officer, employee, fiduciary or agent or in any other capacity while serving as a director, officer, 

employee, fiduciary or agent, shall be indemnified and held harmless by the Corporation to the

fullest extent which it is empowered to do so by the DGCL, as the same exists or may hereafter 

be amended (but, in the case of any such amendment, to the fullest extent permitted by 

applicable law, only to the extent that such amendment permits the Corporation to provide 

broader indemnification rights than said law permitted the Corporation to provide prior to such 

amendment) against all cost, expense, liability and loss (including, without limitation, attorneys’ 

fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in 

settlement) actually and reasonably incurred by such Indemnitee in connection with a proceeding 

if such person acted in good faith and in a manner such person reasonably believed to be in or 

not opposed to the best interests of the Corporation, and, with respect to any criminal action or

proceeding, had no reasonable cause to believe that such person’s conduct was unlawful. The

termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, 

or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that 

such person did not act in good faith and in a manner which such person reasonably believed to 

be in or not opposed to the best interests of the Corporation, and with respect to any criminal 

action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful. 

Such indemnification shall continue as to a person who has ceased to serve in the capacity which 

initially entitled such person to indemnity hereunder, and such indemnification shall inure to the 

benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, 

except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights 

to indemnification, the Corporation shall indemnify any Indemnitee seeking indemnification in 

connection with a proceeding initiated by such person only if such proceeding (or part thereof) 

was authorized by the Board of Directors.

Section 2. Advancement of Expenses. To the fullest extent to which it is permitted 

to do so by the DGCL or other applicable law, the Corporation shall, in advance of the final 

disposition of the matter, pay the expenses and costs (including attorneys’ fees) actually and 

reasonably incurred by any Indemnitee in defending or otherwise participating in any proceeding 

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and any appeal therefrom for which such person may be entitled to such indemnification under 

this Article VIII or otherwise; provided, however, if required by the DGCL, such payment of 

expenses and costs in advance of the final disposition of the proceeding shall be made only upon 

receipt by the Corporation of an undertaking by or on behalf of such Indemnitee to repay all 

amounts advanced if it should be ultimately determined by final judicial decision from which 

there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such 

expenses under this Article VIII or otherwise. Expenses incurred by other employees, fiduciaries 

and agents who are considered Indemnitees hereunder may be so paid upon such terms and 

conditions, if any, as the Board of Directors deems appropriate.

Section 3. Procedures for Indemnification of Directors and Officers. Any 

indemnification or advancement of expenses under this Article VIII shall be made promptly, and 

in any event within thirty (30) days, upon the written request of the Indemnitee, except in the 

case of a claim for an advancement of expenses, in which case the applicable period shall be 

twenty (20) days. If a determination by the Corporation that the Indemnitee is entitled to 

indemnification pursuant to this Article VIII is required, and the Corporation fails to respond 

within sixty (60) days to a written request for indemnity, the Corporation shall be deemed to 

have approved the request. If the Corporation denies a written request for indemnification or 

advancement of expenses, in whole or in part, or if payment in full pursuant to such request is 

not made within thirty (30) days (or twenty (20) days in the case of a claim for advancement of 

expenses), the right to indemnification or advancement of expenses as granted by this Article 

VIII shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such 

Indemnitee’s costs and expenses incurred in connection with successfully establishing the right 

to indemnification, in whole or in part, in any such action or in a suit brought by the Corporation 

to recover an advancement of expenses pursuant to the terms of an undertaking, shall also be 

indemnified by the Corporation. It shall be a defense to any such action (other than an action 

brought to enforce a claim for expenses incurred in defending any proceeding in advance of its 

final disposition where the required undertaking, if any, has been tendered to the Corporation) 

that the Indemnitee has not met the standards of conduct which make it permissible under the 

DGCL for the Corporation to indemnify the Indemnitee for the amount claimed, but the burden 

of such defense shall be on the Corporation. Neither the failure of the Corporation (including its 

Board of Directors, independent legal counsel, or its stockholders) to have made a determination 

prior to the commencement of such action that indemnification of the Indemnitee is proper in the 

circumstances because he or she has met the applicable standard of conduct set forth in the 

DGCL nor an actual determination by the Corporation (including its Board of Directors, 

independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable 

standard of conduct, shall be a defense to the action or create a presumption that the claimant has 

not met the applicable standard of conduct. In any suit brought by the Indemnitee to enforce a 

right to indemnification or to an advancement of expenses hereunder, or brought by the 

Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the 

burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement 

of expenses, under this Article VIII or otherwise, shall be on the Corporation.

Section 4. Requested Services. Without limiting the meaning of the phrase “serving 

at the request of the Corporation” as used herein, any person serving as a director, officer or 

equivalent executive of (a) another corporation of which a majority of the shares entitled to vote 

in the election of its directors is owned, directly or indirectly, by the Corporation, or (b) any 

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employee benefit plan maintained or sponsored by the Corporation or any corporation referred to 

in clause (a), shall be deemed to be doing so at the request of the Corporation for purposes of 

Section 1 of this Article VIII.

Section 5. Contract Rights. The provisions of this Article VIII shall be deemed to be 

a contract right between the Corporation and each Indemnitee and such rights shall continue as to 

an Indemnitee who has ceased to be a director, officer, employee, fiduciary or agent, or if the 

relevant provisions of the DGCL or other applicable law cease to be in effect. Such contract right 

shall vest for each Indemnitee who is a director, officer, employee, fiduciary or agent at the time 

such person is elected or appointed to such position, and no repeal or modification of this Article 

VIII or any such law shall affect any such vested rights or obligations then existing with respect 

to any state of facts or proceeding arising after such election or appointment and prior to such 

repeal or modification.

Section 6. Insurance. The Corporation may purchase and maintain insurance on its 

own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or 

agent of the Corporation or was serving at the request of the Corporation as a director, officer, 

employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other 

enterprise against any liability asserted against such person and incurred by such person in any 

such capacity, or arising out of such person’s status as such, whether or not the Corporation 

would have the power to indemnify such person against such liability under the DGCL or this 

Article VIII.

Section 7. Employees and Agents. Except as otherwise provided in the Plan, Persons 

who are not covered by the foregoing provisions of this Article VIII and who are or were 

employees, fiduciaries or agents of the Corporation, or who are or were serving at the request of 

the Corporation as employees, fiduciaries or agents of another corporation, partnership, joint 

venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from 

time to time by the Board of Directors to the fullest extent of this Article VIII.

Section 8. Merger or Consolidation. For purposes of this Article VIII, references to 

“the Corporation” shall include, in addition to the resulting corporation, any constituent 

corporation (including, without limitation, any constituent of a constituent) absorbed in a 

consolidation or merged in a merger which, if its separate existence had continued, would have 

had power and authority to indemnify its directors, officers, and employees or agents, so that any 

person who is or was a director or officer of such constituent corporation, or is or was serving at 

the request of such constituent corporation as a director, officer, employee, fiduciary or agent of 

another corporation or of a partnership, joint venture, trust or other enterprise, shall stand in the 

same position under this Article VIII with respect to the resulting or surviving corporation as he 

or she would have with respect to such constituent corporation if its separate existence had 

continued.

Section 9. Non-Exclusivity of Rights. The rights to indemnification and the 

advancement of expenses and costs conferred under this Article VIII shall not be exclusive of 

any other rights to which those seeking indemnification or advancement of expenses and costs 

may be entitled under any applicable law, provision of this Amended and Restated Certificate of

Incorporation, by-law, agreement, vote of stockholders of the Corporation or disinterested 

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directors or otherwise, both as to action in such person’s official capacity and as to action in 

another capacity while holding such office. The Corporation is specifically authorized to enter 

into individual contracts with any or all of its directors or officers respecting indemnification and 

advances, to the fullest extent not prohibited by the DGCL or by any other applicable law.

Section 10. Amendments. No amendment, repeal or modification of, and no adoption 

of any provision inconsistent with, any provision of this Article VIII shall adversely affect any 

right or protection of a director or officer of the Corporation existing by virtue of this Article 

VIII at the time of such amendment, repeal, modification or adoption.

Section 11. Jointly Indemnifiable Claims. Given that certain jointly indemnifiable 

claims (as defined below) may arise due to the service of the Indemnitee as a director and/or 

officer of the Corporation at the request of the indemnitee-related entities (as defined below), the 

Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect 

of indemnification or advancement of expenses in connection with any such jointly 

indemnifiable claims, pursuant to and in accordance with the terms of this Article VIII, 

irrespective of any right of recovery the Indemnitee may have from the indemnitee-related 

entities. Under no circumstance shall the Corporation be entitled to any right of subrogation 

against or contribution by the indemnitee-related entities and no right of advancement, 

indemnification or recovery the Indemnitee may have from the indemnitee-related entities shall 

reduce or otherwise alter the rights of the Indemnitee or the obligations of the Corporation under 

this Article VIII. In the event that any of the indemnitee-related entities shall make any payment 

to the Indemnitee in respect of indemnification or advancement of expenses with respect to any 

jointly indemnifiable claim, the indemnitee-related entity making such payment shall be 

subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee 

against the Corporation, and the Indemnitee shall execute all documents and instruments 

reasonably required and shall do all things that may be reasonably necessary to secure such 

rights, including the execution of such documents and instruments as may be necessary to enable 

the indemnitee-related entities effectively to bring suit to enforce such rights. Each of the 

indemnitee-related entities shall be third-party beneficiaries with respect to this Section 11 of this

Article VIII and entitled to enforce this Section 11 of this Article VIII.

(a) The term “indemnitee-related entities” means any corporation, limited liability 

company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than 

the Corporation or any other corporation, limited liability company, partnership, joint venture, 

trust, employee benefit plan or other enterprise for which the Indemnitee has agreed, on behalf of 

the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent 

and which service is covered by the indemnity described herein) from whom an Indemnitee may 

be entitled to indemnification or advancement of expenses with respect to which, in whole or in 

part, the Corporation may also have an indemnification or advancement obligation.

(b) The term “jointly indemnifiable claims” shall be broadly construed and shall 

include, without limitation, any action, suit or proceeding for which the Indemnitee shall be 

entitled to indemnification or advancement of expenses from both the indemnitee-related entities 

and the Corporation pursuant to applicable law, any agreement, certificate of incorporation, 

bylaws, partnership agreement, operating agreement, certificate of formation, certificate of 

limited partnership or comparable organizational documents of the Corporation or the 

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indemnitee-related entities, as applicable.

ARTICLE IX

SECTION 203

The Corporation elects not to be governed by Section 203 of the DGCL.

ARTICLE X

AMENDMENTS

In furtherance and not in limitation of the powers conferred by the laws of the

State of Delaware as they presently exist or may hereafter be amended, subject to any

limitations contained elsewhere in this Amended and Restated Certificate of Incorporation, the

Corporation may from time to time adopt, amend or repeal any provisions of this Amended and

Restated Certificate of Incorporation.

ARTICLE XI

SEVERABILITY

If any provision or provisions of this Amended and Restated Certificate of

Incorporation shall be held to be invalid, illegal or unenforceable as applied to any person or

entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by

applicable law, the validity, legality and enforceability of such provisions in any other

circumstance and of the remaining provisions of this Amended and Restated Certificate of

Incorporation (including, without limitation, each portion of any sentence of this Amended and

Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or

unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of

such provision to other persons or entities and circumstances shall not in any way be affected or

impaired thereby.

ARTICLE XII

FORUM

Unless the Corporation consents in writing to the selection of an alternative 

forum, to the fullest extent permitted by applicable law, the sole and exclusive forum for (i) any 

derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a 

claim of breach of a fiduciary duty owed by any director, officer or other employee of the 

Corporation to the Corporation or Corporation’s stockholders, (iii) any action asserting a claim 

arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by 

the internal affairs doctrine shall be the Court of Chancery of the State of Delaware, (or, if the 

Court of Chancery lacks subject matter jurisdiction, another state or federal court located within 

the state of Delaware). Any person or entity purchasing or otherwise acquiring or holding any 

interest in shares of capital stock of the Corporation shall be deemed to have notice of and 

consented to the provisions of this Article XII.

* * * * * * * *

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[Signature Page to Amended and Restated Certificate of Incorporation]

IN WITNESS WHEREOF, the undersigned has executed this Amended and

Restated Certificate of Incorporation this ___ day of [●], 2017.

GIRAFFE NEW HOLDING CO., INC.

By: _________________________________

Name:

Title:

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EXHIBIT A-1 (a)

Comparison of Amended and Restated Certificate of Incorporation of 

[Giraffe New Holding Co., Inc.]

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Milbank Draft

8/1731/17

AMENDED AND

RESTATED CERTIFICATE OF

INCORPORATION OF

[GIRAFFE NEW HOLDING CO., INC.]

[Giraffe New Holding Co., Inc.], a corporation organized and existing under the

laws of the State of Delaware (the “Corporation”), pursuant to Sections 242 and 245 of the

General Corporation Law of the State of Delaware, as it may be amended from time to time (the

“DGCL”), hereby certifies as follows:

1. The name of this corporation is [Giraffe New Holding Co., Inc.]. The original Certificate of

Incorporation of the Corporation (the “Original Certificate of Incorporation”) was filed on

[●].

2. The Corporation and its affiliated debtors filed a plan of reorganization pursuant to Chapter

11 of the United States Bankruptcy Code on June 16, 2017, which was confirmed by the

United States Bankruptcy Court for the Eastern District of Virginia on [●], 2017 (including

all exhibits, schedules and supplements thereto and as amended from time to time in

accordance with the terms thereof, the “Plan”). This Amended and Restated Certificate of

Incorporation of the Corporation (this “Amended and Restated Certificate of

Incorporation”) has been duly adopted in accordance with Sections 242, 245 and 303 of the

DGCL, pursuant to the authority granted to the Corporation under Section 303 of the DGCL

and pursuant to the Plan.

3. This Amended and Restated Certificate of Incorporation amends and restates the Original

Certificate of Incorporation to read in its entirety as follows:

ARTICLE I

NAME OF CORPORATION

The name by which the corporation is to be known is [Giraffe New Holding Co.,

Inc.] (the “Corporation”).

ARTICLE II

REGISTERED OFFICE; REGISTERED AGENT

The address of the Corporation’s registered office in the State of Delaware is [●].

The name of the registered agent of the corporation at such address is [●].

ARTICLE III

PURPOSE

The purpose of the Corporation is to engage in any lawful act or activity for

which corporations may be organized under the DGCL.

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ARTICLE IV

STOCK

Section 1. Authorized Stock. The total number of shares of all classes of capital

stock that the Corporation has authority to issue is [●] shares, consisting of: (a) [●] shares of

Common Stock, par value $[0.01] per share (“Common Stock”), and (b) [●] shares of Preferred

Stock, par value $[0.01] per share (“Preferred Stock”). The number of authorized shares of

Common Stock or Preferred Stock may be increased or decreased (but not below the number of

shares thereof then outstanding) by the affirmative vote of the holders of capital stock of the

Corporation representing a majority of the voting power of all the then-outstanding shares of

capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section

242(b)(2) of the DGCL (or any successor provision thereto), unless this Amended and Restated

Certificate of Incorporation of the Corporation (this “Amended and Restated Certificate of

Incorporation”), including any Preferred Stock Designation (as defined below), otherwise

requires the vote of the holders of Common Stock or Preferred Stock voting separately as a class.

Section 2. Common Stock.

(a) Voting Rights. Except as otherwise provided in this Amended and Restated

Certificate of Incorporation or as required by applicable law, the holders of Common Stock shall

at all times vote together as one class on all matters (including the election of directors)

submitted to a vote or for the consent of the stockholders of the Corporation. Each holder of

Common Stock shall be entitled to one (1) vote for each share of Common Stock held as of the

applicable date on any matter that is submitted to a vote or for the consent of the stockholders of

the Corporation. Except as otherwise required by applicable law, holders of Common Stock

shall not be entitled to vote on any amendment to this Amended and Restated Certificate of

Incorporation (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 Amended and Restated Certificate of Incorporation (including any Preferred

Stock Designation) or pursuant to the DGCL, provided that such amendment does not alter or

change the designations, powers, preferences or rights of the shares of Common Stock so as to

affect them adversely.

(b) Dividends. Subject to the rights of the holders of Preferred Stock, the holders of

Common Stock shall be entitled to share equally, on a per share basis, in such dividends and

other distributions of cash, property or shares of stock of the Corporation as may be declared by

the Board of Directors of the Corporation (the “Board of Directors”) from time to time with

respect to the Common Stock out of assets or funds of the Corporation legally available therefor.

(c) Liquidation Rights. In the event of the voluntary or involuntary liquidation,

dissolution, distribution of assets or winding up of the Corporation, the holders of Common

Stock shall be entitled to share equally, on a per share basis, all assets of the Corporation of

whatever kind available for distribution to the holders of Common Stock.

(d) Merger or Consolidation. In the case of any distribution or payment in respect of

the shares of Common Stock upon the consolidation or merger of the Corporation with or into

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any other entity, or in the case of any other transaction having an effect on stockholders of the

Corporation substantially similar to that resulting from a consolidation or merger, such

distribution or payment shall be made ratably on a per share basis among the holders of Common

Stock as a single class.

Section 3. Preferred Stock. Shares of Preferred Stock may be issued by the

Corporation from time to time in one or more series. The Board of Directors (or any committee

to which it may duly delegate the authority granted in this Article IV) is hereby empowered to

authorize, to the fullest extent now or hereafter permitted by the laws of the State of Delaware, to

provide for the issuance of shares of Preferred Stock in one or more series, for such consideration

and for such corporate purposes as the Board of Directors (or such committee thereof) may from

time to time determine and, by filing a certificate pursuant to the applicable law of the State of

Delaware (hereinafter referred to as a “Preferred Stock Designation”), to establish from time to

time for each such series the number of shares to be included in each such series, and to fix the

designations, powers, rights and preferences of the shares of each such series and any

qualifications, limitations or restrictions thereof to the fullest extent now or hereafter permitted

by this Amended and Restated Certificate of Incorporation and the laws of the State of Delaware,

including, without limitation, voting rights (if any), dividend rights, dissolution rights,

conversion rights, exchange rights and redemption rights thereof, as shall be stated and expressed

in a resolution or resolutions adopted by the Board of Directors (or such committee thereof)

providing for the issuance of such series of Preferred Stock. Each series of Preferred Stock shall

be distinctly designated.

Section 4. Nonvoting Stock. To the extent prohibited by Section 1123 of the

Bankruptcy Code, the Corporation shall not issue any class or series of nonvoting equity

securities; provided, however, that the foregoing (x) will have no force and effect beyond that

required under Section 1123 of the Bankruptcy Code and (y) may be amended or eliminated in

accordance with applicable law as from time to time in effect. For the purposes of this Section 4

of this Article IV, any class or series of equity securities that has only such voting rights as are

mandated by the DGCL shall be deemed to be nonvoting for purposes of the restrictions of this

Section 4 of this Article IV.

ARTICLE V

DIRECTORS

Section 1. Director Powers. The business and affairs of the Corporation shall be

managed by or under the direction of the Board of Directors. In addition to the powers and

authority expressly conferred upon them by statute or by this Amended Restated Certificate of

Incorporation or the Bylaws of the Corporation (as may be amended or restated from time to

time, the “Bylaws”), the directors are hereby empowered to exercise all such powers and do all

such acts and things as may be exercised or done by the Corporation.

Section 2. Number of Directors. The initial number of directors shall be seven (7).

The number of directors shall be fixed from time to time by the affirmative vote of a majority of

the Whole Board (as defined below).

Section 3. Elections. Unless and except to the extent that the Bylaws shall so

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require, elections of directors need not be by written ballot.¶

Section 4. Classes of Directors and Term of Office¶. The Board of Directors

shall be divided into three classes, designated Class I, Class II and Class III, and the term

of office of directors of one class shall expire at each annual meeting of stockholders of the

Corporation, and in all cases as to each director until his or her successor shall be duly

elected and qualified or until his or her earlier resignation, removal from office, death or

incapacity. All members of the Board of Directors then in office shall be assigned to a

class, and the director(s) assigned to Class I shall hold office for a term expiring at the first

regularly scheduled annual meeting of stockholders of the Corporation following the

effectiveness of this provision, the director(s) assigned to Class II shall hold office for a

term expiring at the second regularly scheduled annual meeting of stockholders of the

Corporation following the effectiveness of this provision, and the director(s) assigned to

Class III shall hold office for a term expiring at the third regularly scheduled annual

meeting of stockholders of the Corporation following the effectiveness of this provision. At

each succeeding annual meeting of stockholders of the Corporation, a number of directors

equal to the number of directors of the class whose term expires at the time of such meeting

(or, if less, the number of directors properly nominated and qualified for election) shall be

elected to hold office until the third succeeding annual meeting of stockholders of the

Corporation after their election.

ARTICLE VI

AMENDMENTS TO BYLAWS

The Board of Directors shall have the power to adopt, amend or repeal the

Bylaws. Any adoption, amendment or repeal of the Bylaws by the Board of Directors shall

require the approval of a majority of the Whole Board. For purposes of this Amended and

Restated Certificate of Incorporation, the term “Whole Board” shall mean the total number of

authorized directors whether or not there exist any vacancies in previously authorized

directorships.

ARTICLE VII

DIRECTOR LIABILITY

To the fullest extent permitted by the DGCL, a director of the Corporation shall

not be personally liable to the Corporation or its stockholders for monetary damages for breach of

fiduciary duty as a director (it being understood that, without limiting the foregoing, if in the

future the DGCL is amended or modified (including with respect to Section 102(b)(7) thereof) to

permit the further limitation or elimination of the personal liability of a director of the

Corporation to a greater extent than contemplated above, then the provisions of this Article VII

shall be deemed to provide for the elimination of the personal liability of the directors of the

Corporation to such greater extent). This Article VII shall not eliminate or limit the liability of a

director for any act or omission occurring prior to the date when this Article VII becomes

effective. Any repeal or amendment or modification of this Article VII, or the adoption of any

provision of this Amended and Restated Certificate of Incorporation inconsistent with this

Article VII, will, to the extent permitted by applicable law, be prospective only (except to the

extent such amendment or change in applicable law permits the Corporation to provide a broader

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limitation on a retroactive basis than permitted prior thereto), and will not adversely affect any

limitation on the personal liability of any director of the Corporation at the time of such repeal or

amendment or modification or adoption of such inconsistent provision.

ARTICLE VIII

INDEMNIFICATION AND INSURANCE

Section 1. Right to Indemnification. Each person who was or is made a party or is

threatened to be made a party to or is involved in any threatened, pending or completed action,

suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (hereinafter

referred to as a “proceeding”), by reason of the fact that such person, or a person of whom such

person is the legal representative, is or was or has agreed to become a director or officer of the

Corporation, or while a director or officer of the Corporation is or was serving or has agreed to

serve at the request of the Corporation in any capacity, including as a director, officer, employee,

fiduciary or agent, of another corporation or of a partnership, joint venture, trust or other

enterprise, including, without limitation, service with respect to employee benefit plans

maintained or sponsored by the Corporation or any of its subsidiaries (an “Indemnitee”), whether

the basis of such proceeding is alleged action in an official capacity as a director, officer,

employee, fiduciary or agent or in any other capacity while serving as a director, officer,

employee, fiduciary or agent, shall be indemnified and held harmless by the Corporation to the

fullest extent which it is empowered to do so by the DGCL, as the same exists or may hereafter

be amended (but, in the case of any such amendment, to the fullest extent permitted by applicable

law, only to the extent that such amendment permits the Corporation to provide broader

indemnification rights than said law permitted the Corporation to provide prior to such

amendment) against all cost, expense, liability and loss (including, without limitation, attorneys’

fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in

settlement) actually and reasonably incurred by such Indemnitee in connection with a proceeding

if such person acted in good faith and in a manner such person reasonably believed to be in or not

opposed to the best interests of the Corporation, and, with respect to any criminal action or

proceeding, had no reasonable cause to believe that such person’s conduct was unlawful. The

termination of any claim, action, suit or proceeding by judgment, order, settlement, conviction, or

upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that

such person did not act in good faith and in a manner which such person reasonably believed to

be in or not opposed to the best interests of the Corporation, and with respect to any criminal

action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

Such indemnification shall continue as to a person who has ceased to serve in the capacity which

initially entitled such person to indemnity hereunder, and such indemnification shall inure to the

benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing,

except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights

to indemnification, the Corporation shall indemnify any Indemnitee seeking indemnification in

connection with a proceeding initiated by such person only if such proceeding (or part thereof)

was authorized by the Board of Directors.

Section 2. Advancement of Expenses. To the fullest extent to which it is permitted

to do so by the DGCL or other applicable law, the Corporation shall, in advance of the final

disposition of the matter, pay the expenses and costs (including attorneys’ fees) actually and

reasonably incurred by any Indemnitee in defending or otherwise participating in any proceeding

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and any appeal therefrom for which such person may be entitled to such indemnification under

this Article VIII or otherwise; provided, however, if required by the DGCL, such payment of

expenses and costs in advance of the final disposition of the proceeding shall be made only upon

receipt by the Corporation of an undertaking by or on behalf of such Indemnitee to repay all

amounts advanced if it should be ultimately determined by final judicial decision from which

there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such

expenses under this Article VIII or otherwise. Expenses incurred by other employees, fiduciaries

and agents who are considered Indemnitees hereunder may be so paid upon such terms and

conditions, if any, as the Board of Directors deems appropriate.

Section 3. Procedures for Indemnification of Directors and Officers. Any

indemnification or advancement of expenses under this Article VIII shall be made promptly, and

in any event within thirty (30) days, upon the written request of the Indemnitee, except in the

case of a claim for an advancement of expenses, in which case the applicable period shall be

twenty (20) days. If a determination by the Corporation that the Indemnitee is entitled to

indemnification pursuant to this Article VIII is required, and the Corporation fails to respond

within sixty (60) days to a written request for indemnity, the Corporation shall be deemed to have

approved the request. If the Corporation denies a written request for indemnification or

advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not

made within thirty (30) days (or twenty (20) days in the case of a claim for advancement of

expenses), the right to indemnification or advancement of expenses as granted by this Article

VIII shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such

Indemnitee’s costs and expenses incurred in connection with successfully establishing the right to

indemnification, in whole or in part, in any such action or in a suit brought by the Corporation to

recover an advancement of expenses pursuant to the terms of an undertaking, shall also be

indemnified by the Corporation. It shall be a defense to any such action (other than an action

brought to enforce a claim for expenses incurred in defending any proceeding in advance of its

final disposition where the required undertaking, if any, has been tendered to the Corporation)

that the Indemnitee has not met the standards of conduct which make it permissible under the

DGCL for the Corporation to indemnify the Indemnitee for the amount claimed, but the burden

of such defense shall be on the Corporation. Neither the failure of the Corporation (including its

Board of Directors, independent legal counsel, or its stockholders) to have made a determination

prior to the commencement of such action that indemnification of the Indemnitee is proper in the

circumstances because he or she has met the applicable standard of conduct set forth in the

DGCL nor an actual determination by the Corporation (including its Board of Directors,

independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable

standard of conduct, shall be a defense to the action or create a presumption that the claimant has

not met the applicable standard of conduct. In any suit brought by the Indemnitee to enforce a

right to indemnification or to an advancement of expenses hereunder, or brought by the

Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the

burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement

of expenses, under this Article VIII or otherwise, shall be on the Corporation.

Section 4. Requested Services. Without limiting the meaning of the phrase “serving

at the request of the Corporation” as used herein, any person serving as a director, officer or

equivalent executive of (a) another corporation of which a majority of the shares entitled to vote

in the election of its directors is owned, directly or indirectly, by the Corporation, or (b) any

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employee benefit plan maintained or sponsored by the Corporation or any corporation referred to

in clause (a), shall be deemed to be doing so at the request of the Corporation for purposes of

Section 1 of this Article VIII.

Section 5. Contract Rights. The provisions of this Article VIII shall be deemed to be

a contract right between the Corporation and each Indemnitee and such rights shall continue as to

an Indemnitee who has ceased to be a director, officer, employee, fiduciary or agent, or if the

relevant provisions of the DGCL or other applicable law cease to be in effect. Such contract right

shall vest for each Indemnitee who is a director, officer, employee, fiduciary or agent at the time

such person is elected or appointed to such position, and no repeal or modification of this Article

VIII or any such law shall affect any such vested rights or obligations then existing with respect

to any state of facts or proceeding arising after such election or appointment and prior to such

repeal or modification.

Section 6. Insurance. The Corporation may purchase and maintain insurance on its

own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or

agent of the Corporation or was serving at the request of the Corporation as a director, officer,

employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other

enterprise against any liability asserted against such person and incurred by such person in any

such capacity, or arising out of such person’s status as such, whether or not the Corporation

would have the power to indemnify such person against such liability under the DGCL or this

Article VIII.

Section 7. Employees and Agents. Except as otherwise provided in the Plan, Persons

who are not covered by the foregoing provisions of this Article VIII and who are or were

employees, fiduciaries or agents of the Corporation, or who are or were serving at the request of

the Corporation as employees, fiduciaries or agents of another corporation, partnership, joint

venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from

time to time by the Board of Directors to the fullest extent of this Article VIII.

Section 8. Merger or Consolidation. For purposes of this Article VIII, references to

“the Corporation” shall include, in addition to the resulting corporation, any constituent

corporation (including, without limitation, any constituent of a constituent) absorbed in a

consolidation or merged in a merger which, if its separate existence had continued, would have

had power and authority to indemnify its directors, officers, and employees or agents, so that any

person who is or was a director or officer of such constituent corporation, or is or was serving at

the request of such constituent corporation as a director, officer, employee, fiduciary or agent of

another corporation or of a partnership, joint venture, trust or other enterprise, shall stand in the

same position under this Article VIII with respect to the resulting or surviving corporation as he

or she would have with respect to such constituent corporation if its separate existence had

continued.

Section 9. Non-Exclusivity of Rights. The rights to indemnification and the

advancement of expenses and costs conferred under this Article VIII shall not be exclusive of any

other rights to which those seeking indemnification or advancement of expenses and costs may

be entitled under any applicable law, provision of this Amended and Restated Certificate of

Incorporation, by-law, agreement, vote of stockholders of the Corporation or disinterested

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directors or otherwise, both as to action in such person’s official capacity and as to action in

another capacity while holding such office. The Corporation is specifically authorized to enter

into individual contracts with any or all of its directors or officers respecting indemnification and

advances, to the fullest extent not prohibited by the DGCL or by any other applicable law.

Section 10. Amendments. No amendment, repeal or modification of, and no adoption

of any provision inconsistent with, any provision of this Article VIII shall adversely affect any

right or protection of a director or officer of the Corporation existing by virtue of this Article VIII

at the time of such amendment, repeal, modification or adoption.

Section 11. Jointly Indemnifiable Claims. Given that certain jointly indemnifiable

claims (as defined below) may arise due to the service of the Indemnitee as a director and/or

officer of the Corporation at the request of the indemnitee-related entities (as defined below), the

Corporation shall be fully and primarily responsible for the payment to the Indemnitee in respect

of indemnification or advancement of expenses in connection with any such jointly

indemnifiable claims, pursuant to and in accordance with the terms of this Article VIII,

irrespective of any right of recovery the Indemnitee may have from the indemnitee-related

entities. Under no circumstance shall the Corporation be entitled to any right of subrogation

against or contribution by the indemnitee-related entities and no right of advancement,

indemnification or recovery the Indemnitee may have from the indemnitee-related entities shall

reduce or otherwise alter the rights of the Indemnitee or the obligations of the Corporation under

this Article VIII. In the event that any of the indemnitee-related entities shall make any payment

to the Indemnitee in respect of indemnification or advancement of expenses with respect to any

jointly indemnifiable claim, the indemnitee-related entity making such payment shall be

subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against

the Corporation, and the Indemnitee shall execute all documents and instruments reasonably

required and shall do all things that may be reasonably necessary to secure such rights, including

the execution of such documents and instruments as may be necessary to enable the

indemnitee-related entities effectively to bring suit to enforce such rights. Each of the

indemnitee-related entities shall be third-party beneficiaries with respect to this Section 11 of this

Article VIII and entitled to enforce this Section 11 of this Article VIII.

(a) The term “indemnitee-related entities” means any corporation, limited liability

company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than

the Corporation or any other corporation, limited liability company, partnership, joint venture,

trust, employee benefit plan or other enterprise for which the Indemnitee has agreed, on behalf of

the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent

and which service is covered by the indemnity described herein) from whom an Indemnitee may

be entitled to indemnification or advancement of expenses with respect to which, in whole or in

part, the Corporation may also have an indemnification or advancement obligation.

(b) The term “jointly indemnifiable claims” shall be broadly construed and shall

include, without limitation, any action, suit or proceeding for which the Indemnitee shall be

entitled to indemnification or advancement of expenses from both the indemnitee-related entities

and the Corporation pursuant to applicable law, any agreement, certificate of incorporation,

bylaws, partnership agreement, operating agreement, certificate of formation, certificate of

limited partnership or comparable organizational documents of the Corporation or the

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indemnitee-related entities, as applicable.

ARTICLE IX

SECTION 203

The Corporation elects not to be governed by Section 203 of the DGCL.

ARTICLE X

AMENDMENTS

In furtherance and not in limitation of the powers conferred by the laws of the

State of Delaware as they presently exist or may hereafter be amended, subject to any limitations

contained elsewhere in this Amended and Restated Certificate of Incorporation, the Corporation

may from time to time adopt, amend or repeal any provisions of this Amended and Restated

Certificate of Incorporation.

ARTICLE XI

SEVERABILITY

If any provision or provisions of this Amended and Restated Certificate of

Incorporation shall be held to be invalid, illegal or unenforceable as applied to any person or

entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by

applicable law, the validity, legality and enforceability of such provisions in any other

circumstance and of the remaining provisions of this Amended and Restated Certificate of

Incorporation (including, without limitation, each portion of any sentence of this Amended and

Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or

unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of

such provision to other persons or entities and circumstances shall not in any way be affected or

impaired thereby.

ARTICLE XII

FORUM

Unless the Corporation consents in writing to the selection of an alternative

forum, to the fullest extent permitted by applicable law, the sole and exclusive forum for (i) any

derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a

claim of breach of a fiduciary duty owed by any director, officer or other employee of the

Corporation to the Corporation or Corporation’s stockholders, (iii) any action asserting a claim

arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by

the internal affairs doctrine shall be the Court of Chancery of the State of Delaware, (or, if the

Court of Chancery lacks subject matter jurisdiction, another state or federal court located within

the state of Delaware). Any person or entity purchasing or otherwise acquiring or holding any

interest in shares of capital stock of the Corporation shall be deemed to have notice of and

consented to the provisions of this Article XII.

* * * * * * * *

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IN WITNESS WHEREOF, the undersigned has executed this Amended and

Restated Certificate of Incorporation this ___ day of [●], 2017.

[GIRAFFE NEW HOLDING CO., INC.]

By: _________________________________

Name:

Title:

[Signature Page to Amended and Restated Certificate of Incorporation]

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EXHIBIT A-2

Amended and Restated Bylaws of [Giraffe New Holding Co., Inc.]

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Milbank Draft

8/31/17

AMENDED AND RESTATED BYLAWS

OF

GIRAFFE NEW HOLDING CO., INC.

(a Delaware corporation, hereinafter called the “Corporation”)

Effective as of [●], 2017

ARTICLE I

OFFICES AND RECORDS

Section 1.1 Registered Office. The registered office of the Corporation, and the 

registered agent of the Corporation at such address, shall initially be as fixed in the Corporation’s 

amended and restated certificate of incorporation (as may be further amended and/or restated 

from time to time, the “Certificate of Incorporation”). The registered office or registered agent 

of the Corporation may thereafter be changed from time to time by action of the board of 

directors of the Corporation (the “Board of Directors”).

Section 1.2 Other Offices. The Corporation may also have offices at such other 

places, both within and without the State of Delaware, as the Board of Directors may from time 

to time determine or the business of the Corporation may require.

Section 1.3 Books and Records.

(a) The books and records of the Corporation may be kept outside the State of 

Delaware at such place or places as may from time to time be designated by the Board of 

Directors.

(b) The Corporation shall, either at its principal executive office or at such 

place or places as designated by the Board of Directors, keep a record of its stockholders listing 

their names and addresses and the number and class of shares held by each such stockholder, a 

copy of these bylaws, as may be amended to date, minute books, accounting books and other 

records.

(c) Any such records maintained by the Corporation may be kept on, or by 

means of, or be in the form of, any information storage device or method, provided that the 

records so kept can be converted into clearly legible paper form within a reasonable time. When 

records are kept in such manner, a clearly legible paper form produced from or by means of the 

information storage device or method shall be admissible in evidence, and accepted for all other 

purposes, to the same extent as an original paper form accurately portrays the record. The 

Corporation shall so convert any records so kept upon the request of any person or entity entitled 

to inspect such records pursuant to the provisions of the Certificate of Incorporation, these 

bylaws or applicable law.

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ARTICLE II

STOCKHOLDERS

Section 2.1 Place of Meetings. Meetings of stockholders of the Corporation shall be 

held at any place, if any, either within or without the State of Delaware, as may be designated 

from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, 

determine that a meeting of stockholders of the Corporation shall not be held at any place, but 

may instead be held solely by means of remote communication. In the absence of notice to the 

contrary, meetings of the stockholders of the Corporation shall be held at the principal executive 

office of the Corporation.

Section 2.2 Annual Meeting. The annual meeting of the stockholders of the 

Corporation shall be held on such date and at such place, if any, and/or by the means of remote 

communication, and time as may be fixed by resolution of the Board of Directors from time to 

time. At the annual meeting of the stockholders of the Corporation, directors shall be elected and 

any other business may be transacted which is properly brought before the annual meeting in 

accordance with the procedures set forth in Section 2.14 of these bylaws. Failure to hold any 

annual meeting as aforesaid shall not constitute, be deemed to be or otherwise effect a forfeiture 

or dissolution of the Corporation nor shall such failure affect otherwise valid corporate acts.

Section 2.3 Special Meetings. Except as otherwise required by applicable law or 

provided in the instrument of designation of any series of preferred stock of the Corporation, 

special meetings of stockholders of the Corporation may be called at any time and from time to 

time only upon the written request (stating the purpose or purposes of the meeting) of (a) any 

two or more members of the Board of Directors, (b) [the Chairman of the Board of Directors], or 

(c) the holders of a majority of the total voting power of all the shares of capital stock of the 

Corporation entitled to vote generally in the election of directors. Special meetings of the 

stockholders of the Corporation may not be called by any person, group or entity other than those 

specifically enumerated in this Section 2.3. The Board of Directors or the Chairman of the 

Board of Directors shall determine the date, time, and place, if any, and/or means of remote 

communication, of any special meeting, which shall be stated in a notice of meeting delivered by 

the Board of Directors. Advance notice of stockholder nominations for the election of directors 

and of business to be brought by stockholders of the Corporation before any meeting of the 

stockholders of the Corporation, or any class or series of thereof, shall be given in the manner 

provided in these bylaws. No business may be transacted at any special meeting of the 

stockholders of the Corporation other than the business specified in the notice of such meeting.

Section 2.4 Chairman of the Meeting; Conduct of Meetings; Inspection of 

Elections.

(a) Meetings of stockholders of the Corporation shall be presided over by the 

chairman of the meeting, who shall be the Chairman of the Board of Directors or, in the absence 

thereof, such person as the Chairman of the Board of Directors shall appoint, or, in the absence 

thereof or in the event that the Chairman of the Board of Directors shall fail to make such 

appointment, any officer of the Corporation appointed by the Board of Directors.

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(b) The secretary of any meeting of the stockholders of the Corporation shall 

be the Secretary or Assistant Secretary, or in the absence thereof, such person as the chairman of 

the meeting appoints. The secretary of the meeting shall keep the minutes thereof.

(c) The Board of Directors shall be entitled to make such rules or regulations 

for the conduct of meetings of stockholders of the Corporation as it shall deem necessary, 

appropriate or convenient from time to time. Subject to such rules and regulations, if any, the 

chairman of the meeting 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 and to 

do all acts as, in the judgment of such chairman, are necessary, appropriate or convenient (and 

not inconsistent with the Certificate of Incorporation or these bylaws) for the proper conduct of 

the meeting, including, without limitation, establishing an agenda of business of the meeting, 

recognizing stockholders entitled to speak, calling for the necessary reports, stating questions and 

putting them to a vote, calling for nominations, announcing the results of voting, establishing 

rules or regulations to maintain order, imposing restrictions on entry to the meeting after the time 

fixed for commencement thereof and the fixing of the date and time of the opening and closing 

of the polls for each matter upon which the stockholders of the Corporation will vote at a 

meeting (and shall announce such at the meeting).

(d) If required by applicable law, the Board of Directors shall appoint one or 

more inspectors, which inspector or inspectors may include individuals who serve the 

Corporation in other capacities, including, without limitation, as officers, employees, agents or 

representatives, to act at a meeting of stockholders of the Corporation and make a written report 

thereof. One or more persons may be designated as alternate inspectors to replace any inspector 

who fails to act. If no inspector or alternate has been appointed to act or is able to act at a 

meeting of stockholders of the Corporation, the chairman of the meeting shall appoint one or 

more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall 

take an oath faithfully to execute the duties of inspector with strict impartiality and according to 

the best of his or her ability. The inspectors shall have such other duties as may be prescribed by 

applicable law.

Section 2.5 Notice.

(a) Whenever stockholders of the Corporation are required or permitted to 

take any action at a meeting (whether special or annual), written notice (unless oral notice is 

reasonable under the circumstances) stating the place (if any), date, and time of the meeting, the 

means of remote communication (if any) by which such stockholders and proxy holders may be 

deemed to be present in person and vote at such meeting, the record date for determining the 

stockholders of the Corporation entitled to vote at the meeting (if such date is different from the 

record date for stockholders of the Corporation entitled to notice of the meeting) and, in the case 

of special meetings, the purpose or purposes of such meeting, shall be given to each stockholder 

of the Corporation entitled to vote at such meeting not fewer than ten (10) nor more than sixty 

(60) days before the date of the meeting except as otherwise required by applicable law, the 

Certificate of Incorporation or these bylaws. In the case of an annual meeting, the notice need 

not state the purpose or purposes of the meeting unless the Certificate of Incorporation or the 

General Corporation Law of the State of Delaware (as the same exists or may hereafter be 

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amended from time to time, the “DGCL”) requires the purpose or purposes to be stated in the 

notice of the meeting.

(b) All such notices shall be delivered in writing (unless oral notice is 

reasonable under the circumstances) or by a form of electronic transmission if receipt thereof has 

been consented to by the stockholder of the Corporation to whom the notice is given. If mailed, 

such notice shall be deemed to be delivered when deposited in the United States mail, postage 

prepaid, addressed to such stockholder at such stockholder’s address as it appears on the records 

of the Corporation. If given by facsimile telecommunication, such notice shall be deemed to be 

delivered when directed to a number at which such stockholder has consented to receive notice 

by facsimile. Subject to the limitations of Section 2.6 of these bylaws, if given by electronic 

transmission, such notice shall be deemed to be delivered: (i) by electronic mail, when directed 

to an electronic mail address at which such stockholder has consented to receive notice; (ii) if by 

a posting on an electronic network together with separate written notice to such stockholder of 

such specific posting delivered by electronic mail or by United States mail, postage prepaid, 

addressed to such stockholder at such stockholder’s address as it appears on the records of the 

Corporation, upon the later of (x) such posting and (y) the giving of such separate notice; and 

(iii) if by any other form of electronic transmission, when directed to such stockholder. An 

affidavit of the Secretary or an Assistant Secretary, the transfer agent of the Corporation or any 

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.

(c) Whenever notice is required to be given under any provision of the 

DGCL, the Certificate of Incorporation or these bylaws, a written waiver thereof, signed by the 

stockholder of the Corporation entitled to notice, or a written waiver by electronic transmission 

by the person or entity entitled to notice, whether before or after the time stated therein, shall be 

deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, any 

meeting of the stockholders of the Corporation need be specified in any waiver of notice of such 

meeting.

(d) Attendance of a stockholder of the Corporation at a meeting of the

stockholders of the Corporation shall constitute a waiver of notice of such meeting, except when 

such stockholder attends for the express purpose of objecting at the beginning of the meeting to 

the transaction of any business because the meeting is not lawfully called or convened.

(e) Whenever notice is required to be given under the DGCL, the Certificate 

of Incorporation or these bylaws to any stockholder of the Corporation with whom 

communication is unlawful, the giving of such notice to such stockholder shall not be required, 

and there shall be no duty to apply to any governmental authority or agency for a license or 

permit to give such notice to such stockholder. Any action or meeting which shall be taken or 

held without notice to any such stockholder with whom communication is unlawful shall have 

the same force and effect as if such notice had been duly given.

Section 2.6 Notice by Electronic Delivery. Without limiting the manner by which 

notice otherwise may be given effectively to stockholders of the Corporation pursuant to the 

DGCL, the Certificate of Incorporation or these bylaws, any notice to stockholders of the 

Corporation given by the Corporation under any provision of the DGCL, the Certificate of 

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Incorporation or these bylaws shall be effective if given by a form of electronic transmission 

consented to by the stockholder of the Corporation to whom the notice is given. Any such 

consent shall be revocable by such stockholder by written notice to the Secretary. Any such 

consent shall be deemed revoked if: (i) the Corporation is unable to deliver by electronic 

transmission two (2) consecutive notices of meetings or of other business given by the 

Corporation in accordance with such consent; and (ii) such inability becomes known to the 

Secretary or an Assistant Secretary or to the transfer agent or other person responsible for the 

giving of notice. However, the inadvertent failure to treat such inability as a revocation shall not 

invalidate any meeting or other action. For purposes of these bylaws, except as otherwise 

limited by applicable law, the term “electronic transmission” means any form of communication 

not directly involving the physical transmission of paper 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.

Section 2.7 Stockholders List. The officer having charge of the stock ledger of the 

Corporation shall make, at least ten (10) days before every meeting of the stockholders of the 

Corporation, a complete list of the stockholders of the Corporation entitled to vote at such 

meeting (provided, however, if the record date for determining the stockholders of the 

Corporation entitled to vote is less than ten (10) days before the date of the meeting, the list shall 

reflect the stockholders of the Corporation entitled to vote as of the tenth (10th) day before the 

meeting date), arranged in alphabetical order, showing the address of (and any form of electronic 

transmission consented to by) each such stockholder and the number of shares registered in the 

name of each such stockholder. Such list shall be open to the examination of any stockholder of 

the Corporation for any purpose germane to the meeting for a period of at least ten (10) days 

prior to the meeting: (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; and/or 

(ii) during ordinary business hours at the principal place of business of the Corporation. 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. If the meeting is to be held at a place, then the list shall be 

produced and kept at the time and place of the meeting during the whole time thereof and may be 

examined by any stockholder of the Corporation who is present. If the meeting is to be held 

solely by means of remote communication, then the list shall also be open to the examination of 

any stockholder of the Corporation during the whole time of the meeting on a reasonably 

accessible electronic network, and the information required to access such list shall be provided 

with the notice of the meeting. Refusal or failure to prepare or make available the stockholder 

list shall not affect the validity of any action taken at a meeting of stockholders of the 

Corporation.

Section 2.8 Quorum. Except as otherwise provided by applicable law or by the 

Certificate of Incorporation, the holders of a majority in voting power of the outstanding shares 

of capital stock of the Corporation entitled to vote thereat, present in person or represented by 

proxy, shall constitute a quorum for the transaction of business at all meetings of the 

stockholders of the Corporation. If a quorum is not present, the chairman of the meeting or the 

holders of a majority in voting power of the shares of capital stock of the Corporation present in 

person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn 

the meeting to another place, if any, date and time. When a quorum is once present to 

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commence a meeting of the stockholders of the Corporation, it is not broken by the subsequent 

withdrawal of any stockholders of the Corporation or their respective proxies.

Section 2.9 Adjournment and Postponement of Meetings.

(a) Any meeting of the stockholders of the Corporation, whether or not a 

quorum is present, may be adjourned to be reconvened at a specific date, time, place (if any) 

and/or by means of remote communication (if any) by the holders of a majority in voting power 

of the shares of capital stock present in person or represented by proxy at the meeting and 

entitled to vote at the meeting or, unless contrary to any provision of the Certificate of 

Incorporation, these bylaws or applicable law, the Chairman of the Board of Directors or the

affirmative vote of a majority of the members of the Board of Directors. When a meeting of the 

stockholders of the Corporation is adjourned to another date, time, place (if any), and/or by 

means of remote communication (if any), notice need not be given of the adjourned meeting if 

the date, time and place (if any) thereof, and/or the means of remote communication (if any) by 

which such 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; 

provided, however, that 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 of the Corporation 

entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record 

date for determining such stockholders entitled to notice of such adjourned meeting the same or 

an earlier date as that fixed for determination of stockholders of the Corporation entitled to vote 

at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of 

record as of the record date so fixed for notice of such adjourned meeting.

(b) Any previously scheduled meeting of the stockholders of the Corporation 

may be postponed, and (unless contrary to applicable law or the Certificate of Incorporation) any 

special meeting of the stockholders of the Corporation may be cancelled, by resolution of the 

Board of Directors upon notice given to such stockholders prior to the date previously scheduled 

for such meeting of stockholders.

Section 2.10 Vote Required. When a quorum is present, the affirmative vote of the 

majority in voting power of the shares of capital stock of the Corporation present in person or 

represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of 

the stockholders of the Corporation, unless the question is one upon which, by express provisions 

of applicable law, the Certificate of Incorporation, these bylaws, the rules or regulations of any 

stock exchange applicable to the Corporation, or pursuant to any regulation applicable to the 

Corporation or its securities, or the instrument of designation of any series of preferred stock of 

the Corporation, a different or additional vote is required or provided for, in which case such 

express provision shall govern and control the decision of such question. Where a separate vote 

by class or series is required or provided for, when a quorum is present, the affirmative vote of a 

majority in voting power of the shares of capital stock of the Corporation of such class or series 

present in person or represented by proxy at the meeting and entitled to vote on the subject 

matter shall be the act of such class or series of stockholders, unless the question is one upon 

which, by express provisions of applicable law, the Certificate of Incorporation, these bylaws, 

the rules or regulations of any stock exchange applicable to the Corporation, or pursuant to any 

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regulation applicable to the Corporation or its securities, or the designation of any series of 

preferred stock of the Corporation, a different vote is required or provided for, in which case 

such express provision shall govern and control the decision of such question.

Section 2.11 Voting Rights. Except as otherwise provided by applicable law, each 

stockholder of the Corporation shall be entitled to that number of votes for each share of capital 

stock of the Corporation held by such stockholder as set forth in the Certificate of Incorporation 

or, in the case of preferred stock of the Corporation, in the instrument of designation thereof.

Section 2.12 Proxies. Each stockholder of the Corporation entitled to vote at a meeting 

of stockholders of the Corporation may authorize another person or entity to act for such 

stockholder by proxy in such manner as prescribed under the DGCL, but no such proxy shall be 

voted or acted upon after three (3) years from its date unless such proxy expressly provides for a 

longer period. At each meeting of the stockholders of the Corporation, and before any voting 

commences, all proxies filed at or before the meeting shall be submitted to and examined by the 

Secretary or a person designated by the Secretary, and no shares may be represented or voted 

under a proxy that has been found (in the reasonable determination of the Secretary or such 

designee) to be invalid or irregular. Reference by the Secretary in the minutes of the meeting to 

the regularity of a proxy shall be received as prima facie evidence of the facts stated for the 

purpose of establishing the presence of a quorum at such meeting and for all other purposes. The 

revocability of a proxy that states on its face that it is irrevocable shall be governed by the 

applicable provisions of the DGCL and, without limiting the foregoing, a duly executed proxy 

shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with 

an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable 

regardless of whether the interest with which it is coupled is an interest in the stock itself or an 

interest in the corporation generally.

Section 2.13 Record Date.

(a) In order that the Corporation may determine the stockholders of the 

Corporation entitled to notice of any meeting of such stockholders or any adjournment thereof, 

the Board of Directors 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 of Directors, and which 

record date shall, unless otherwise required by applicable law, not be more than sixty (60) nor 

less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, 

such date shall also be the record date for determining the stockholders of the Corporation

entitled to vote at such meeting unless the Board of Directors 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 of Directors, the record date for 

determining stockholders of the Corporation entitled to notice of or to vote at a meeting of such

stockholders shall be at the close of business on the day immediately preceding the day on which 

notice is given, or, if notice is waived, at the close of business on the day immediately 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 of the Corporation shall apply to any 

adjournment of the meeting; provided, however, that the Board of Directors may fix a new 

record date for determination of such stockholders entitled to vote at the adjourned meeting, and 

in such case shall also fix as the record date for such stockholders entitled to notice of such 

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adjourned meeting the same or an earlier date as that fixed for determination of stockholders of 

the Corporation entitled to vote in accordance herewith at the adjourned meeting.

(b) In order that the Corporation may determine the stockholders of the 

Corporation entitled to receive payment of any dividend or other distribution or allotment of any 

rights, or entitled to exercise any rights in respect of any change, conversion or exchange of 

stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, 

which record date shall not (i) precede the date upon which the resolution fixing the record date 

is adopted, or (ii) be more than sixty (60) days prior to such action. If no such record date is

fixed, the record date for determining stockholders of the Corporation for any such purpose shall 

be at the close of business on the day on which the Board of Directors adopts the resolution 

relating thereto.

(c) Unless such action in writing without a meeting is otherwise restricted by 

the Certificate of Incorporation, in order that the Corporation may determine the stockholders of 

the Corporation entitled to express consent to corporate action in writing without a meeting, the 

Board of Directors 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 of Directors, 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 of Directors. Unless such action in writing without a 

meeting is otherwise restricted by the Certificate of Incorporation, if no record date for 

determining stockholders of the Corporation entitled to express consent to corporate action in 

writing without a meeting is fixed by the Board of Directors, (i) when no prior action of the 

Board of Directors is required by applicable law, the record date for such purpose shall be the 

first date on which a signed written 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 of Directors is required by applicable law, the record date for such purpose shall be at the 

close of business on the day on which the Board of Directors adopts the resolution taking such 

prior action.

Section 2.14 Advance Notice of Stockholder Business.

(a) Only such business shall be conducted before a meeting of the 

stockholders of the Corporation as shall have been properly brought before such meeting. To be 

properly brought before an annual or special meeting of the stockholders of the Corporation, 

from and after the date Common Stock (as defined in the Certificate of Incorporation) is listed, 

whether in connection with an initial public offering of the Common Stock or otherwise, on a 

U.S. national securities exchange registered with the Securities and Exchange Commission and 

any governmental body or agency succeeding to the functions thereof (a “Public Listing”), 

business must be: (i) with respect to any annual meeting, (A) specified in the notice of meeting 

(or any supplement or amendment thereto) given by or at the direction of the Board of Directors 

or a duly authorized committee of the Board of Directors; (B) otherwise properly brought before 

the meeting by or at the direction of the Board of Directors or a duly authorized committee of the 

Board of Directors; or (C) otherwise properly brought before the meeting by any stockholder of 

the Corporation (1) who is a stockholder of record on the date of the giving of the notice 

provided for in this Section 2.14 and on the record date for the determination of stockholders of 

the Corporation entitled to vote at such annual meeting and (2) who complies with the notice 

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procedures set forth in this Section 2.14; and (ii) with respect to any special meeting, specified in 

the notice of meeting (or any supplement or amendment thereto) given to the stockholders of the 

Corporation by the Board of Directors pursuant to and in accordance with Section 2.3. For the 

avoidance of doubt, the provisions in this Section 2.14 shall not apply prior to completion of a 

Public Listing.

(b) For such business to be considered properly brought before the meeting by 

a stockholder of the Corporation, such stockholder must, in addition to any other applicable 

requirements, have given timely notice thereof in proper written form to the Secretary. To be 

timely with respect to any annual meeting, such stockholder’s notice to the Secretary must be 

delivered to or mailed and received by the Secretary at the principal executive office of the 

Corporation no fewer than ninety (90) and no more than one hundred twenty (120) days prior to 

the first (1st) anniversary of the immediately preceding annual meeting of the stockholders of the 

Corporation; provided, however, that in the event that no annual meeting was held in the 

previous year or the annual meeting is called for a date that is not within thirty (30) days before 

or after such anniversary date, notice by such stockholder to be timely must be so received not 

later than the close of business on the tenth (10th) day following the day on which notice of the 

date of the annual meeting was mailed. To be timely with respect to any special meeting, such

stockholder’s notice to the Secretary must be delivered or mailed and received by the Secretary 

at the principal executive office of the Corporation not less than sixty (60) days prior to the date 

of such meeting; provided, however, that in the event that less than seventy (70) days’ notice of 

the date of the meeting is given to stockholders of the Corporation, to be timely such

stockholder’s notice must be delivered or mailed and received by the Secretary at the principal 

executive office of the Corporation not later than the close of business on the tenth (10th) day 

following the earlier of the day on which such notice is mailed by the Corporation. In no event

shall the public announcement of an adjournment or postponement of an announced meeting 

commence a new time period (or extend any time period) for the giving of a stockholder’s notice 

as provided in this Section 2.14.

(c) To be in proper written form, a stockholder’s notice to the Secretary must 

set forth as to each matter such stockholder proposes to bring before the annual meeting: (i) a 

brief description of the business desired to be brought before the annual meeting and the reasons 

for conducting such business at the annual meeting; (ii) as to the stockholder of the Corporation

giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (A) the 

name and address of such stockholder, as they appear on the Corporation’s books, and of such 

beneficial owner, (B) the class or series and number of shares of capital stock of the Corporation 

which are directly or indirectly (including through any derivative arrangement) owned 

(1) beneficially and (2) of record by such stockholder and by such beneficial owner, (C) a 

description of all arrangements or understandings between such stockholder or such beneficial 

owner and any other person or entity (including, without limitation, their names) in connection 

with the ownership of the capital stock of the Corporation and the proposal of such business by 

such stockholder and such beneficial owner, and any material interest (financial or otherwise) of 

such stockholder or such beneficial owner in such business, (D) whether either such stockholder 

or beneficial owner intends to deliver a form of proxy to holders of at least the percentage of the 

Corporation’s voting shares required under applicable law to approve the proposal and (E) if the 

Corporation is then subject to Section 14(a) of the Securities Exchange Act of 1934, as amended 

(the “Exchange Act”), any other information relating to such stockholder and beneficial owner, 

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if any, required to be disclosed in a proxy statement or other filing required to be made in 

connection with a solicitation of proxies for the proposal pursuant to and in accordance with 

Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; and 

(iii) a representation that such stockholder is a holder of record of stock of the Corporation 

entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to 

introduce the business specified in the notice. As used herein, shares “beneficially owned” by a 

person (and phrases of similar import) shall mean all shares which such person is deemed to 

beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act, including, without 

limitation, shares which are beneficially owned, directly or indirectly, by any other person with 

which such person has any agreement, arrangement or understanding for the purpose of 

acquiring, holding, voting or disposing of any shares of the capital stock of the Corporation.

(d) The chairman of a meeting of the stockholders of the Corporation shall 

determine and declare at such meeting whether the stockholder proposal was made in accordance 

with the terms of this Section 2.14. If the chairman of the meeting determines that such proposal 

was not properly brought before the meeting in accordance with the foregoing procedures, the 

chairman of the meeting shall declare to the meeting that the proposal was not properly brought 

before the meeting and the business of such proposal shall not be transacted.

(e) This provision shall not prevent the consideration and approval or 

disapproval at any annual or special meeting of stockholders of the Corporation of reports of 

officers, directors and committees of the Board of Directors, but in connection with such reports, 

no new business shall be acted upon at such meeting unless stated, filed and received as herein 

provided.

(f) In addition, notwithstanding anything in this Section 2.14 to the contrary, 

a stockholder of the Corporation intending to nominate one or more persons for election as a 

director at an annual or special meeting of stockholders of the Corporation must comply with 

Section 2.15 of these bylaws for such nomination to be properly brought before such meeting.

(g) For purposes of this Section 2.14, any adjournment(s) or postponement(s) 

of the original meeting whereby the meeting will reconvene within ninety (90) days from the 

original date shall be deemed for purposes of notice to be a continuation of the original meeting 

and no business may be brought before any such reconvened meeting unless pursuant to a notice 

of such business which was timely for the meeting and properly presented as determined as of 

the date originally scheduled.

Section 2.15 Advance Notice of Director Nominations. 

(a) Unless otherwise required by applicable law or the Certificate of 

Incorporation, from and after the date on which the Corporation completes a Public Listing, only 

persons who are nominated in accordance with the following procedures shall be eligible for 

election as directors of the Corporation, except as may be otherwise provided in the instrument 

of designation of any series of preferred stock of the Corporation with respect to the right of 

holders of preferred stock of the Corporation to nominate and elect a specified number of 

directors of the Corporation, who shall be nominated as provided therein. For the avoidance of 

doubt, the provisions in this Section 2.15 shall not apply prior to completion of a Public Listing.

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(b) Nominations of persons for election to the Board of Directors shall be 

made only at an annual or special meeting of stockholders of the Corporation called for the 

purpose of electing directors and must be (i) specified in the notice of meeting (or any 

supplement or amendment thereto) and (ii) made by (A) the Board of Directors or a duly 

authorized committee of the Board of Directors (or at the direction thereof) or (B) made by any 

stockholder of the Corporation (1) who is a stockholder of record on the date of the giving of the 

notice provided for in this Section 2.15 and on the record date for the determination of 

stockholders entitled to vote at such meeting and (2) who complies with the notice procedures set 

forth in this Section 2.15.

(c) In addition to any other applicable requirements, for a nomination to be 

made by a stockholder of the Corporation, such stockholder must have given timely notice 

thereof in proper written form to the Secretary. To be timely, such stockholder’s notice to the 

Secretary must be delivered to or mailed and received at the principal executive office of the 

Corporation: (i) in the case of an annual meeting of the stockholders of the Corporation, no fewer 

than ninety (90) nor more than one hundred twenty (120) days prior to the first (1st) anniversary 

of the immediately preceding annual meeting; provided, however, that in the event that no annual 

meeting was held in the previous year or the annual meeting is called for a date that is not within 

thirty (30) days before or after such anniversary date, notice by such stockholder to be timely 

must be so received not later than the close of business on the tenth (10th) day following the day 

on which notice of the date of the annual meeting was mailed, and (ii) in the case of a special 

meeting of stockholders of the Corporation called for the purpose of electing directors, not less 

than sixty (60) days prior to the meeting; provided, however, that in the event that less than 

seventy (70) days’ notice of the date of the meeting is given or made to stockholders of the 

Corporation, notice by such stockholder to be timely must be so received not later than the close 

of business on the tenth (10th) day following the earlier of the day on which such notice was 

mailed. Notwithstanding anything to the contrary in the immediately preceding sentence, in the 

event that the number of directors to be elected to the Board of Directors is increased, a 

stockholder’s notice required by this Section 2.15 shall also be considered timely, but only with 

respect to nominees for any new positions created by such increase and only if otherwise timely 

notice of nomination for all other directorships was delivered by such stockholder in accordance 

with the requirements of the immediately preceding sentence, if it shall be delivered to the 

Secretary at the principal executive office of the Corporation not later than the close of business 

on the tenth (10th) day following the day on which notice to the stockholders of the Corporation 

was given by the Corporation naming all of the nominees for director or specifying the size of 

the increase in the number of directors to serve on the Board of Directors, even if such tenth 

(10th) day shall be later than the date for which a nomination would otherwise have been 

required to be delivered to be timely. In no event shall the public announcement of an 

adjournment or postponement of an announced meeting commence a new time period (or extend 

any time period) for the giving of a stockholder’s notice as provided in this Section 2.15.

(d) To be in proper written form, a stockholder’s notice to the Secretary 

pursuant to this Section 2.15 must set forth (i) as to each person whom the stockholder of the 

Corporation proposes to nominate for election as a director, (A) the name, age, business address, 

and residence address of such person, (B) the principal occupation or employment of the person, 

(C) the class or series and number of shares of capital stock of the Corporation which are directly 

or indirectly (including through any derivative arrangement) owned beneficially or of record by 

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the person, and (D) any other information relating to the person that would be required to be 

disclosed in a proxy statement or other filing required to be made in connection with a 

solicitation of proxies for an election of directors pursuant to the Exchange Act and the rules and 

regulations promulgated thereunder if the Corporation were a reporting company under the 

Exchange Act, and (ii) as to the stockholder of the Corporation giving the notice and the 

beneficial owner, if any, on whose behalf the director nomination is made (A) the name and 

address of such stockholder, as they appear on the Corporation’s books, and of such beneficial 

owner; (B) the class or series and number of shares of capital stock of the Corporation which are 

owned (1) beneficially and (2) of record by such stockholder and by such beneficial owner, (C) a 

description of all arrangements or understandings between such stockholder or such beneficial 

owner and any other person or entity (including, without limitation, their names) in connection 

with the ownership of the capital stock of the Corporation and the nomination of such 

nominee(s), and any material interest of such stockholder or such beneficial owner in such 

nomination(s), (D) whether either such stockholder or beneficial owner intends to deliver a form 

of proxy to holders of the Corporation’s voting shares to elect such nominee or nominees, (E) a 

representation that the stockholder of the Corporation giving the notice is a holder of record of 

stock of the Corporation entitled to vote at such meeting and that such stockholder intends to 

appear in person or by proxy at the meeting to nominate the persons named in its notice and (F) 

if the Corporation is then subject to Section 14(a) of the Exchange Act, any other information 

relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy 

statement or other filing required to be made in connection with a solicitation of proxies for an 

election of directors pursuant to the Exchange Act and the rules and regulations promulgated 

thereunder. Such notice must be accompanied by a written consent of each proposed nominee to 

be named as a nominee and to serve as a director if elected. The Corporation may require any 

nominee to furnish such other information (which may include meeting to discuss the 

information) as may reasonably be required by the Corporation to determine the eligibility of 

such nominee to serve as a director of the Corporation.

(e) If the chairman of a meeting of the stockholders of the Corporation 

determines that a nomination was not made in accordance with the foregoing procedures, the 

chairman of the meeting shall declare to the meeting that the nomination was defective and such 

defective nomination shall be disregarded.

(f) Nothing in this Section 2.15 shall be deemed to affect any rights of the 

holders of any series of preferred stock of the Corporation to elect directors pursuant to any 

applicable provisions of the Certificate of Incorporation.

Section 2.16 Action Without a Meeting. Until the date on which the Corporation 

completes a Public Listing, any action required or permitted to be taken at any annual or special 

meeting of stockholders of the Corporation may be taken without a meeting, without prior notice 

and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be 

signed by the holders of outstanding stock of the Corporation having not less than the minimum 

number of votes that would be necessary to authorize or take such action at a meeting at which 

all shares entitled to vote thereon were present and voted and shall be delivered to the 

Corporation by delivery to its registered office in the State of Delaware, its principal place of 

business, or to an officer or agent of the Corporation having custody of the book in which 

proceedings of meetings of stockholders of the Corporation are recorded. Following the date on 

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which the Corporation completes a Public Listing, any action required or permitted to be taken at 

any annual or special meeting of stockholders of the Corporation may be taken without a 

meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth 

the action so taken, shall be signed by all the holders of outstanding stock of the Corporation 

entitled to vote thereon.

ARTICLE III

DIRECTORS

Section 3.1 General Powers. All corporate powers shall be exercised by or under the 

authority of, and the business and affairs of the Corporation shall be managed under the direction 

of, the Board of Directors. In addition to the powers and authority expressly conferred upon it 

by these bylaws, the Board of Directors shall exercise all such powers of the Corporation and do 

all such lawful acts and things as are not by applicable law or any other legal agreement among 

stockholders of the Corporation, by the Certificate of Incorporation, or by these bylaws directed 

or required to be exercised or done by the stockholders of the Corporation. 

Section 3.2 Number and Election.

(a) The total number of directors constituting the entire Board of Directors 

shall be not less than three (3) nor more than fifteen (15). Subject to the limits specified in the 

immediately preceding sentence, the exact number of directors shall be determined from time to 

time by the Board of Directors; provided, however, that in no case will a decrease in the number 

of authorized directors constituting the Whole Board (as defined below) have the effect of 

removing or shortening the term of any incumbent director.

(b) Except as provided in Section 3.6 of these bylaws and the Stockholders 

Agreement of the Corporation, dated as of [●], 2017 (as amended, modified or supplemented 

from time to time, the “Stockholders Agreement”), a plurality of the votes cast at any annual 

meeting of stockholders of the Corporation or any special meeting of the stockholders of the 

Corporation properly called for the purpose of electing directors shall elect directors of the 

Corporation. Except as otherwise set forth in the instrument of designation of any class or series 

of preferred stock of the Corporation, no stockholder of the Corporation shall be entitled to 

cumulate votes on behalf of any candidate at any election of directors of the Corporation.

(c) All elections of directors of the Corporation shall be by written ballot, 

unless otherwise provided in the Certificate of Incorporation or authorized by the Board of 

Directors from time to time. If authorized by the Board of Directors, such requirement of a 

written ballot shall be satisfied by a ballot submitted by electronic transmission; provided, 

however, that any such electronic transmission must be either set forth or be submitted with 

information from which it can be determined that the electronic transmission was authorized.

Section 3.3 Classes of Directors and Term of Office. The Board of Directors shall 

be divided into three classes, designated Class I, Class II and Class III, and the term of office of 

directors of one class shall expire at each annual meeting of stockholders of the Corporation, and 

in all cases as to each director until his or her successor shall be duly elected and qualified or 

until his or her earlier resignation, removal from office, death or incapacity. Upon the 

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effectiveness of these bylaws (the “Effective Time”), the Board of Directors, in accordance with 

the Stockholders Agreement, shall assign all members of the Board of Directors then in office to 

a class, and the director(s) assigned to Class I shall hold office for a term expiring at the first 

regularly scheduled annual meeting of stockholders of the Corporation following the Effective 

Time, the director(s) assigned to Class II shall hold office for a term expiring at the second 

regularly scheduled annual meeting of stockholders of the Corporation following the Effective 

Time, and the director(s) assigned to Class III shall hold office for a term expiring at the third 

regularly scheduled annual meeting of stockholders of the Corporation following the Effective 

Time. At each succeeding annual meeting of stockholders of the Corporation, a number of 

directors equal to the number of directors of the class whose term expires at the time of such 

meeting (or, if less, the number of directors properly nominated and qualified for election) shall 

be elected to hold office until the third succeeding annual meeting of stockholders of the 

Corporation after their election.

Section 3.4 Removal. Except as provided in the Stockholders Agreement and subject 

to the rights, if any, of the holders of shares of any class or series of preferred stock of the 

Corporation then outstanding to remove directors as set forth in the instrument of designation of 

such preferred stock applicable thereto, any director or the entire Board of Directors may be 

removed from office, with or without cause, upon the affirmative vote of the holders of a 

majority of the total voting power of all the shares of the Corporation entitled to vote generally in 

the election of directors, voting together as a single class.

Section 3.5 Resignation. Any director may resign at any time upon notice given in 

writing or by electronic transmission to the Corporation. Any resignation shall take effect at the 

time specified therein or, if the time when it shall become effective is not specified therein, 

immediately upon receipt. Unless otherwise specified therein, the acceptance of any such 

resignation shall not be necessary to make it effective.

Section 3.6 Vacancies and Newly Created Directorships. Except as provided in the 

Stockholders Agreement and subject to the rights, if any, of the holders of shares of any class or 

series of preferred stock of the Corporation then outstanding to designate a director to fill a 

vacancy as set forth in the instrument of designation of such preferred stock applicable thereto, 

any vacancy on the Board of Directors resulting from any death, resignation, retirement, 

disqualification, removal from office, or newly created directorship resulting from any increase 

in the authorized number of directors or otherwise shall be filled only by the Board of Directors, 

acting by a majority of the remaining directors then in office, even if less than a quorum, or by a 

sole remaining director and not by the stockholders. Except as provided in the Stockholders 

Agreement, a director elected to fill a vacancy shall hold office for a term expiring at the annual 

meeting of stockholders at which the term of office of the class to which such director has been 

appointed expires and until such director’s successor shall have been duly elected and qualified 

or until such director’s earlier death, resignation or removal. If there are no directors in office, 

then an election of directors shall be held in the manner provided by applicable law.

Section 3.7 [Chairman of the Board of Directors. The Chairman of the Board of 

Directors shall be chosen from among the directors by a majority vote of the Whole Board (as 

defined below). Any director elected as Chairman in accordance with this Section 3.7 shall hold 

such office until such director’s earlier death, resignation, retirement, disqualification or removal 

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from office or the election of any successor by the Board of Directors from time to time. The 

Chairman of the Board of Directors shall preside at all meetings of the stockholders of the 

Corporation and shall have such other powers and perform such other duties (including, without 

limitation, as applicable, as an officer of the Corporation) as may be prescribed by the Board of 

Directors or provided in these bylaws.]

Section 3.8 Meetings. Meetings of the Board of Directors may be held at such dates, 

times and places (if any) and/or by means of remote communication (if any) as shall be 

determined from time to time by the Board of Directors or as may be specified in a notice 

regarding a meeting of the Board of Directors. Special meetings of the Board of Directors may 

be called by the Chairman of the Board of Directors, the Chief Executive Officer or President of 

the Corporation, or not less than a majority of the members of the Board of Directors and shall 

be called by the President or the Secretary if directed by the Chairman of the Board of Directors, 

the Chief Executive Officer or President of the Corporation or not less than a majority of the 

members of the Board of Directors.

Section 3.9 Conduct of Meetings.

(a) Meetings of the Board of Directors shall be presided over by the chairman 

of the meeting, who shall be the Chairman of the Board of Directors or, in the discretion of the 

Board of Directors, such director as a majority of the directors present at such meeting shall 

appoint.

(b) The Board of Directors shall be entitled to make such rules or regulations 

for the conduct of meetings of the Board of Directors as it shall deem necessary, appropriate or 

convenient.

Section 3.10 Notice.

(a) Unless the Certificate of Incorporation provides otherwise, (i) regular 

meetings of the Board of Directors may be held without notice of the date, time, place or purpose 

of the meeting at any date, time and place (if any) and/or means of remote communication (if 

any), as shall from time to time be determined by the Board of Directors, and (ii) unless waived 

by each of the directors entitled to notice thereof, special meetings of the Board of Directors 

shall be preceded by at least twenty-four (24) hours’ notice of the date, time and place (if any) 

and/or means of remote communication (if any). Any notice of a special or regular meeting of 

the Board of Directors shall be given to each director orally (either in person or by telephone), in 

writing (either by hand delivery, mail, courier or facsimile), or by electronic or other means of 

remote communication, in each case, directed to each director at that director’s address, 

telephone number, facsimile number or electronic mail address, as the case may be, as shown on 

the Corporation’s records. Any oral notice may be communicated either to the director or to a 

person at the office of the director who the person giving notice has reason to believe will 

promptly communicate such notice to the director. If the notice is: (i) delivered personally by 

hand, by courier, or orally by telephone or otherwise, (ii) sent by facsimile or (iii) sent by 

electronic mail, 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 United States mail or courier service, it shall be 

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deposited in the United States mail or with the courier at least three (3) business days before the 

time of the holding of the meeting.

(b) Whenever notice is required to be given under any provisions of the 

DGCL, the Certificate of Incorporation or these bylaws, a written waiver thereof, signed by the 

director entitled to notice, or a waiver by electronic transmission by the person entitled to notice, 

whether before or after the time stated therein, shall be deemed equivalent to notice. Neither the 

business to be transacted at, nor the purpose of, any meeting of the Board of Directors or 

committee thereof need be specified in any waiver of notice of such meeting.

(c) Attendance of a director at a meeting of the Board of Directors shall 

constitute a waiver of notice of such meeting, except when the director attends for the express 

purpose of objecting at the beginning of the meeting to the transaction of any business because 

the meeting is not lawfully called or convened. Such director shall be conclusively presumed to 

have assented to any action taken at any such meeting unless his or her dissent shall be entered in 

the minutes of the meeting or unless his or her written dissent to such action shall be filed with 

the person acting as the secretary of the meeting before the adjournment thereof or shall be 

forwarded by registered mail to the Secretary immediately after the adjournment of the meeting. 

Such right to dissent shall not apply to any member who voted in favor of such action. 

Participation by means of remote communication, including, without limitation, by means of 

conference telephone or other communications equipment by means of which all persons 

participating in the meeting can adequately communicate with each other, shall constitute 

attendance in person at the meeting.

Section 3.11 Quorum and Adjournment. Subject to Section 3.6, a majority of the 

Whole Board (as defined below) shall constitute a quorum for the transaction of business at all 

meetings of the Board of Directors, except as otherwise provided by applicable law or by the 

Certificate of Incorporation or these bylaws. If a quorum is not present, the Chairman of the 

Board of Directors or a majority of the directors present at the meeting may adjourn the meeting 

without further notice to another date, time and place (if any) and/or means of remote 

communications (if any). When a quorum is once present to commence a meeting of the Board 

of Directors, it is not broken by the subsequent withdrawal of any directors. At any adjourned 

meeting at which a quorum is present, any business may be transacted which might have been 

transacted at the meeting as originally called. As used in these bylaws, the term “Whole Board” 

shall mean the total number of authorized directors whether or not there exists any vacancies in 

previously authorized directorships.

Section 3.12 Vote Required. Subject to the Certificate of Incorporation, the 

Stockholders Agreement, these bylaws, the DGCL and the rights, if any, of those directors who 

may be elected by the holders of any class or series of preferred stock of the Corporation as set 

forth in the instrument of designation of such preferred stock, the act by affirmative vote of a 

majority of the directors present at a meeting of the Board of Directors at which there is a 

quorum shall be an act of the Board of Directors.

Section 3.13 Minutes. The Secretary shall act as secretary of all meetings of the Board 

of Directors but in the absence of the secretary, the Chairman of the Board of Directors may 

appoint any other person present to act as secretary of the meeting. The secretary of the meeting 

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shall keep the minutes thereof. Minutes of any regular or special meeting of the Board of 

Directors shall be prepared and distributed to each director.

Section 3.14 Board Action by Written Consent Without a Meeting. Unless 

otherwise restricted by the Certificate of Incorporation, any action required or permitted to be 

taken at any meeting of the Board of Directors, or any committee thereof, may be taken without 

a meeting if all members of the Board of Directors, or such committee, consent thereto in writing 

or by electronic transmission, and the writing(s) or electronic transmission(s) reasonably describe 

the action taken and are filed with the minutes of proceedings of the Board of Directors.

Section 3.15 Committees.

(a) The Board of Directors may by resolution create one or more committees 

(and thereafter, by resolution, dissolve any such committee). Each such committee shall consist 

of one or more of the directors of the Corporation who serve at the pleasure of the Board of 

Directors. Committee members may be removed, with or without cause, at any time by 

resolution of the Board of Directors and may resign from a committee at any time upon written 

notice to the Corporation. The Board of Directors may designate one or more directors as 

alternate members of any committee to 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 present at any meeting and not disqualified from voting, whether or not he or they 

constitute a quorum, may unanimously appoint another member of the Board of Directors to act 

at the meeting in the place of any such absent or disqualified member.

(b) Any such committee, to the extent provided in these bylaws or in a 

resolution of the Board of Directors establishing such committee, shall have and may exercise all 

the powers and authority of the Board of Directors 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 

which may require it, to the extent permitted under applicable law. Any duly authorized action 

and otherwise proper action of a committee of the Board of Directors shall be deemed an action 

of the Board of Directors for purposes of these bylaws unless the context of these bylaws shall 

expressly state otherwise.

(c) Each committee of the Board of Directors shall keep minutes of its 

meetings and shall report its proceedings to the Board of Directors when requested or required 

by the Board of Directors.

(d) Meetings and actions of committees of the Board of Directors shall be 

governed by, and held and taken in accordance with, the provisions of Section 3.8, Section 3.9, 

Section 3.10, Section 3.11, Section 3.12 and Section 3.14 of these bylaws, with such changes in 

the context of those bylaws as are necessary to substitute the committee and its members for the 

Board of Directors and its directors and, if there shall be a chairman of the committee, the 

Chairman of the Board of Directors for the chairman of the committee; provided, however, that: 

(i) the time of regular meetings of committees may be determined either by resolution of the 

Board of Directors or by resolution of the committee; (ii) special meetings of committees may 

also be called by resolution of the Board of Directors; and (iii) notice of special meetings of 

committees shall also be given to all alternate members, who shall have the right to attend all 

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meetings of the committee. The Board of Directors may adopt other rules for the government of 

any committee not inconsistent with the provisions of these bylaws. Each committee of the 

Board of Directors may fix its own other rules of procedure not inconsistent with the provisions 

of these bylaws or the rules of such committee adopted by the Board of Directors and shall hold 

its meetings as provided by such rules, except as may otherwise be provided by a resolution of 

the Board of Directors designating such committee or as provided in these bylaws.

Section 3.16 Compensation. The Board of Directors, irrespective of any personal 

interest of any of its members, may establish reasonable compensation of all directors for 

services to the Corporation as directors, officers, or otherwise, or may delegate such authority to 

an appropriate committee. Such compensation may be comprised of cash, property, stock, 

options to acquire stock, or such other assets, benefits or consideration as such directors shall 

deem, in the exercise of their sole discretion, to be reasonable and appropriate under the 

circumstances. The Board of Directors also shall have authority to provide for or delegate an 

authority to an appropriate committee to provide for reasonable pensions, disability or death 

benefits, and other benefits or payments, to directors, officers, and employees and to their 

families, dependents, estates, or beneficiaries on account of prior services rendered to the 

Corporation by such directors, officers, and employees.

Section 3.17 Corporate Governance. Without otherwise limiting the powers of the 

Board of Directors set forth in this Article III, if shares of capital stock of the Corporation are 

listed for trading on either the Nasdaq Stock Market (“NASDAQ”) or the New York Stock 

Exchange (“NYSE”), the Corporation shall comply with the corporate governance rules and 

requirements of the NASDAQ or the NYSE, as applicable.

OFFICERS

Section 4.1 Officers. The officers of the Corporation shall be [a Chief Executive 

Officer, a Chief Financial Officer, one or more Presidents (at the discretion of the Board of 

Directors), a Treasurer, and a Secretary]. The Corporation may also have, at the discretion of the 

Board of Directors, one or more Vice Presidents, one or more Assistant Treasurers, one or more 

Assistant Secretaries, a Controller, and any such other officers as may be appointed from time to 

time in accordance with the provisions of these bylaws. In addition, the Chairman of the Board 

of Directors shall exercise powers and perform such other duties as an officer of the Corporation 

as may be prescribed by the Board of Directors. Any number of offices may be held by the same 

person. In its discretion, the Board of Directors may choose not to fill any office for any period 

as it may deem advisable, except as required by applicable law. The officers of the Corporation 

need not be stockholders of the Corporation nor, other than the Chairman of the Board of 

Directors, directors of the Corporation.

Section 4.2 Election of Officers. The Board of Directors shall elect the officers of the 

Corporation, except such officers as may be elected in accordance with the provisions of Section 

4.3 of these bylaws, and subject to the rights, if any, of an officer under any employment 

contract. Each officer shall hold office until his or her successor is elected and qualified or until 

his or her earlier death, resignation or removal. A failure to elect officers shall not dissolve or 

otherwise affect the Corporation. Vacancies may be filled or new offices created and filled by 

the Board of Directors.

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Section 4.3 Appointment of Subordinate Officers. The Board of Directors may 

appoint, or empower the Chief Executive Officer and/or one or more Presidents of the 

Corporation 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 of Directors may from 

time to time determine.

Section 4.4 Removal and Resignation.

(a) Notwithstanding the provisions of any employment agreement, any officer 

of the Corporation may be removed at any time (i) by the majority vote of the Whole Board, with 

or without cause, and (ii) by any other officer of the Corporation upon whom the Board of 

Directors has expressly conferred the authority to remove another officer, in such case on the 

terms and subject to the conditions upon which such authority was conferred upon such officer. 

No elected officer shall have any contractual rights against the Corporation for compensation by 

virtue of such election beyond the date of the election of his successor, his death, his resignation 

or his removal from office, whichever event shall first occur, except as otherwise provided in an 

employment contract or under an employee deferred compensation plan or as otherwise required 

by applicable law.

(b) Any officer may resign at any time by giving written or electronic notice 

to the Corporation. Any resignation shall take effect at the time specified therein or, if the time 

when it shall become effective is not specified therein, immediately upon receipt. Unless 

otherwise specified therein, the acceptance of any such resignation shall not be necessary to 

make it effective.

Section 4.5 Vacancies. Any vacancy occurring in any office because of death, 

resignation, retirement, disqualification, removal from office or otherwise may be filled as 

provided in Section 4.2 and/or Section 4.3 of these bylaws.

Section 4.6 Chief Executive Officer. Subject to the powers of the Board of Directors, 

the Chief Executive Officer shall be responsible for the general management of the business, 

affairs and property of the Corporation and control over its officers, agents and employees, and 

shall see that all orders and resolutions of the Board of Directors are carried into effect. The 

Chief Executive Officer shall have such other powers and perform such other duties as may be 

prescribed by the Board of Directors or these bylaws.

Section 4.7 Chief Financial Officer. Subject to the powers of the Board of Directors, 

the Chief Financial Officer shall have the responsibility for the financial affairs of the 

Corporation and shall exercise supervisory responsibility for the performance of the duties of the 

Treasurer and the Controller, if any, of the Corporation. If there is no Controller, the Chief 

Financial Officer shall keep full and accurate account of receipts and disbursements in the books 

of the Corporation and render to the Board of Directors, the Chairman of the Board, or the 

President, whenever requested, an account of all his transactions as Chief Financial Officer and 

of the financial condition of the Corporation. The Chief Financial Officer shall have such other 

powers and perform such other duties as may be prescribed by the Board of Directors, the 

Chairman of the Board of Directors or these bylaws.

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Section 4.8 President. The President(s) of the Corporation, subject to the powers of 

the Board of Directors and the Chief Executive Officer, shall act in general executive capacity, 

subject to the supervision and control of the Board of Directors. The President(s) shall have such 

other powers and perform such other duties as may be prescribed by the Board of Directors, the 

Chairman of the Board of Directors, the Chief Executive Officer or these bylaws. 

Section 4.9 Vice President. The Vice President(s) shall have such powers and 

perform such duties as may be prescribed by the Board of Directors, the Chairman of the Board 

of Directors, the Chief Executive Officer, the President(s) or these bylaws.

Section 4.10 Treasurer. The Treasurer shall: (i) have the custody of the corporate 

funds and securities; (ii) keep full and accurate accounts of receipts and disbursements of the 

Corporation in books belonging to the Corporation; (iii) cause all monies and other valuable 

effects of the Corporation to be deposited in the name and to the credit of the Corporation in such 

banks as may be authorized by the Board of Directors; and (iv) cause the funds of the 

Corporation to be disbursed when such disbursements have been duly authorized, taking proper 

vouchers for such disbursements. The Treasurer shall have such other powers and perform such 

other duties as may be prescribed by the Board of Directors, the Chairman of the Board of 

Directors, the Chief Executive Officer, the Chief Financial Officer or these bylaws.

Section 4.11 Secretary. The Secretary shall attend all meetings of the Board of 

Directors and of the stockholders and record all votes and the minutes of all proceedings in a 

book to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all 

meetings of the stockholders and special meetings of the Board of Directors and, when 

appropriate, shall cause the corporate seal to be affixed to any instruments executed on behalf of 

the Corporation. The Secretary shall also perform all duties incident to the office of Secretary 

and such other duties as may be prescribed by the Board of Directors, the Chairman of the Board 

of Directors, the Chief Executive Officer, the President(s) or these bylaws.

Section 4.12 Assistant Treasurers. The Assistant Treasurer, or if there shall be more 

than one, the Assistant Treasurers in the order determined by the Board of Directors, shall, in the 

absence or disability of the Treasurer, perform the duties and functions, exercise the powers and 

be subject to all of the restrictions of the Treasurer. The Assistant Treasurer(s) shall have such 

other powers and perform such other duties as may be prescribed by the Board of Directors, the 

Chairman of the Board of Directors, the Chief Financial Officer, the Treasurer or these bylaws.

Section 4.13 Assistant Secretaries. The Assistant Secretary, or if there shall be more 

than one, the Assistant Secretaries in the order determined by the Board of Directors, shall, in the 

absence or disability of the Secretary, perform the duties and functions, exercise the powers and 

be subject to all of the restrictions of the Secretary. The Assistant Secretary(ies) shall have such 

other powers and perform such other duties as may be prescribed by the Board of Directors, the 

Chairman of the Board of Directors, the Chief Executive Officer, the Secretary or these bylaws.

Section 4.14 Controller. The Controller, if any, shall keep full and accurate account of 

receipts and disbursements in the books of the Corporation and render to the Board of Directors, 

the Chairman of the Board, the President or Chief Financial Officer, whenever requested, an 

account of all his transactions as Controller and of the financial condition of the Corporation. 

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The Controller shall also perform all duties incident to the office of Controller and such other 

duties as may be assigned to him by the Board of Directors, the Chairman of the Board, the Chief 

Financial Officer or these bylaws.

Section 4.15 Delegation of Duties. In the absence, disability or refusal of any officer 

of the Corporation to exercise and perform his or her duties, the Board of Directors may by 

resolution delegate the powers and duties of such officer to any other officer or to any director, 

or to any other person whom it may select.

ARTICLE V

STOCK

Section 5.1 Stock Certificates. The shares of capital stock of the Corporation shall be 

represented by certificates; provided, however, that the Board of Directors may provide by 

resolution that shares of some or all of any or all classes or series of stock of the Corporation 

shall be uncertificated and shall not be represented by certificates. Any such resolution by the 

Board of Directors shall not apply to shares represented by a certificate until such certificate is 

surrendered to the Corporation. Certificates representing shares of capital stock of the 

Corporation shall be issued in such form as may be approved by the Board of Directors and shall 

be signed by two authorized officers of the Corporation. The name of the person or entity to 

whom the shares are issued, with the number of shares and date of issue, shall be entered on the 

books of the Corporation.

Section 5.2 Electronic Signatures. Any and all of the signatures on a certificate 

representing shares of capital stock of the Corporation may be electronic. In case any officer, 

transfer agent or registrar who has signed or whose electronic signature has been placed upon a 

certificate shall have 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 such person were such 

officer, transfer agent or registrar at the date of issue.

Section 5.3 Special Designations of Shares. If the Corporation is authorized to issue 

more than one class of stock or more than one series of any class, (a) to the extent the shares are 

represented by certificates, the powers, designations, preferences, and 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 back of the certificate that the Corporation shall issue to represent 

such class or series of stock; provided, however, that, except as otherwise required by applicable 

law (including, without limitation, 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 a statement that the Corporation will furnish 

without charge to each stockholder who so requests the powers, designations, preferences, and 

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; and (b) to the 

extent the shares are uncertificated, within a reasonable time after the issuance or transfer of 

uncertificated shares, the Corporation shall send or cause to be sent to the registered owner 

thereof a written notice containing the information required to be set forth or stated on 

certificates pursuant to applicable provisions in the DGCL or a statement that the Corporation 

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will furnish without charge to each stockholder who so requests the powers, designations, 

preferences, and 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.

Section 5.4 Transfers of Stock.

(a) Shares of capital stock of the Corporation shall only be transferred on the 

books of the Corporation by the holder of record thereof or by such holder’s attorney or legal 

representative duly authorized in writing and, if the shares are represented by certificates, upon 

surrender to the Corporation of the certificate or certificates for such shares endorsed by the 

appropriate person or persons, with such evidence of the authenticity of such endorsement, 

transfer, authorization and other matters as the Corporation may reasonably require, and 

accompanied by all necessary stock transfer stamps. For shares of the Corporation’s capital 

stock represented by certificates, it shall be the duty of the Corporation to issue a new certificate 

to the person or entity entitled thereto, cancel the old certificate or certificates and record the 

transaction on its books. 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 from and to whom transferred.

(b) The Board of Directors shall have the power and authority to make such 

other rules and regulations as it may deem necessary or proper concerning the issue, transfer and 

registration of certificates for shares of capital stock of the Corporation.

(c) The Board of Directors shall have the authority to appoint one or more 

banks or trust companies organized under the laws of the United States or any state thereof to act 

as its transfer agent or agents or registrar or registrars, or both, in connection with the transfer or 

registration of any class or series of securities of the Corporation, and may require stock 

certificates to be countersigned or registered by one or more of such transfer agents and/or 

registrars.

(d) The Corporation shall have the authority to enter into and perform any 

agreement with any number of stockholders of the Corporation of any one or more classes or 

series of capital stock of the Corporation to restrict the transfer of shares of capital stock of the 

Corporation of any one or more classes or series owned by such stockholders in any manner 

permitted by the DGCL.

Section 5.5 Lost, Stolen or Destroyed Certificates. The Board of Directors may 

direct a new certificate or certificates representing one or more shares of capital stock of the 

Corporation or uncertificated shares to be issued in place of any certificate or certificates 

previously issued by the Corporation alleged to have been lost, stolen or destroyed, upon the 

making of an affidavit of that fact by the person or entity claiming the certificate of stock to be 

lost, stolen or destroyed or may otherwise require production of such evidence of such loss, theft

or destruction as the Board of Directors may in its discretion require. Without limiting the 

generality of the foregoing, when authorizing such issue of a new certificate or certificates or 

such uncertificated shares, the Board of Directors may, in its discretion and as a condition 

precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or 

certificates, or such owner’s duly authorized attorney or legal representative, to give the 

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Corporation a bond sufficient to indemnify the Corporation against any claim that may be made 

against the Corporation on account of the loss, theft or destruction of any such certificate or the 

issuance of such new certificate.

Section 5.6 Dividend Record Date. In order that the Corporation may determine the 

stockholders of the Corporation entitled to receive payment of any dividend or other distribution 

or allotment of any rights, or the stockholders entitled to exercise any rights of change, 

conversion or exchange of stock, or for the purposes of any other lawful action, the Board of 

Directors may fix a record date, which record date shall be determined in the manner set forth in 

Section 2.13 of these bylaws.

Section 5.7 Registered Stockholders. The Corporation shall be entitled to recognize 

the exclusive right of a person or entity registered on its books as the owner of shares of capital 

stock of the Corporation to receive dividends, to vote, to receive notifications and otherwise to 

exercise all the rights and powers of an owner of such shares, and shall not be bound to 

recognize any equitable or other claim to or interest in such share or shares on the part of any 

other person or entity, whether or not it shall have express or other notice thereof, except as 

otherwise required by applicable law.

ARTICLE VI

INDEMNIFICATION

The Corporation shall indemnify any Indemnitee (as defined in the Certificate of 

Incorporation) as set forth in the Certificate of Incorporation.

ARTICLE VII

GENERAL PROVISIONS

Section 7.1 Reliance on Books and Records. Each director of the Corporation, each 

member of any committee of the Board of Directors and each officer of the Corporation shall, in 

the performance of his or her duties, be fully protected in relying in good faith upon the books of 

account or other records of the Corporation and upon such information, opinions, reports or 

documents presented to the Corporation by any of its officers or employees, or committees of the 

Board of Directors so designated, or by any other person or entity as to matters which such 

director or committee member reasonably believes are within such other person’s or entity’s 

professional or expert competence and who has been selected with reasonable care by or on 

behalf of the Corporation.

Section 7.2 Dividends. Dividends upon the capital stock of the Corporation, subject 

to the requirements of the DGCL and the provisions of the Certificate of Incorporation, may be 

declared by the Board of Directors from time to time at any regular or special meeting of the 

Board of Directors and may be paid in cash, in property or in shares of the capital stock, or in 

any combination thereof. Before payment of any dividend, there may be set aside out of any 

funds of the Corporation available for dividends such sum or sums as the Board of Directors 

from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet 

contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, 

bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the 

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Corporation, or for equalizing dividends, or for repairing or maintaining any property of the 

Corporation, or for any other proper purpose. The Board of Directors may modify or abolish any 

such reserve in the manner in which it was created.

Section 7.3 Corporate Funds; Checks, Drafts or Orders; Deposits. The funds of 

the Corporation shall be kept in such depositories as shall from time to time be prescribed by the 

Board of Directors. All checks, drafts or other orders for the payment of money by or to the 

Corporation and all notes and other evidences of indebtedness issued in the name of the 

Corporation shall be signed by such officer, officers, agent or agents of the Corporation, and in 

such manner, as shall be determined by resolution of the Board of Directors from time to time. 

All funds of the Corporation shall be deposited to the credit of the Corporation under such 

conditions and in such banks, trust companies or other depositories as the Board of Directors 

may designate or as may be designated by an officer or officers or agent or agents of the 

Corporation to whom such power may, from time to time, be determined by the Board of 

Directors.

Section 7.4 Execution of Contracts and Other Instruments. The Board of 

Directors, except as otherwise required by applicable law, may authorize from time to time any 

officer or agent of the Corporation to enter into any contract or to execute and deliver any other 

instrument in the name of and on behalf of the Corporation. Such authority may be general or 

confined to specific instances. No officer, agent or employee shall have any power or authority 

to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable 

for damages, whether monetary or otherwise, for any purpose or for any amount except as 

specifically authorized in these bylaws or by the Board of Directors or an officer or committee 

with the power to grant such authority.

Section 7.5 Signatures. In addition to the provisions for use of facsimile signatures 

elsewhere specifically authorized in these bylaws, facsimile or electronic signatures of any 

director or officer of the Corporation may be used whenever the signature of a director or officer 

of the Corporation shall be required, except as otherwise required by applicable law or as 

directed by the Board of Directors from time to time.

Section 7.6 Fiscal Year. The fiscal year of the Corporation shall be fixed, and once 

fixed, may thereafter be changed from time to time, by the Board of Directors.

Section 7.7 Corporate Seal. The Board of Directors may provide a corporate seal 

which shall be in the form of a circle and shall have inscribed thereon the name of the 

Corporation, the year of its incorporation and the words “Corporate Seal, Delaware”. The seal 

may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or 

otherwise.

Section 7.8 Voting Securities Owned By the Corporation. Powers of attorney, 

proxies, waivers of notice of meeting, consents, and other instruments relating to securities 

owned by the Corporation may be executed in the name of and on behalf of the Corporation by 

the Chief Executive Officer, the President, Treasurer or Secretary, any Vice President, Assistant 

Treasurer or Assistant Secretary, or any other officer of the Corporation authorized to do so by 

the Board of Directors. Any such officer may, in the name of and on behalf of the Corporation, 

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take all such action as any such officer may deem advisable to vote in person or by proxy at any 

meeting of security holders of any corporation or other entity in which the Corporation may own 

securities, and at any such meeting shall possess and may exercise any and all rights and power 

incident to the ownership of such securities and which, as the owner thereof, the Corporation 

might have possessed and exercised if present.

Section 7.9 Section Headings. Section headings in these bylaws are for convenience 

of reference only and shall not be given any substantive effect in limiting or otherwise construing 

any provision herein.

Section 7.10 Inconsistent Provisions. In the event that any provision of these bylaws 

is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL, or 

any other applicable law, the provision of these bylaws shall not be given any effect to the extent 

of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

Section 8.1 Amendments. Subject to the power of the stockholders of the 

Corporation to adopt, amend or repeal any of these bylaws, these bylaws may be amended,

modified or repealed, and new bylaws may be adopted at any time by the affirmative vote of a

majority of the Whole Board. Notwithstanding any other provision of these bylaws or any 

provision of law which might otherwise permit a lesser vote or no vote, but in addition to any 

affirmative vote of the holders of any series of preferred stock of the Corporation required by

applicable law, by the Certificate of Incorporation or by any instrument designating any class or 

series of preferred stock of the Corporation, the affirmative vote of the holders of a majority of 

the total voting power of the shares of the Corporation entitled to vote generally in the election of 

directors, voting together as a single class, shall be required for the stockholders of the 

Corporation to alter, amend or repeal, or adopt any provision inconsistent with, the provisions of 

these bylaws.

* * * *

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EXHIBIT A-2 (a)

Comparison of Amended and Restated Bylaws of [Giraffe New Holding Co., Inc.]

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Milbank Draft

8/1731/17

AMENDED AND RESTATED BYLAWS

OF

[GIRAFFE NEW HOLDING CO., INC.]

(a Delaware corporation, hereinafter called the “Corporation”)

Effective as of [●], 2017

ARTICLE I

OFFICES AND RECORDS

Section 1.1 Registered Office. The registered office of the Corporation, and the

registered agent of the Corporation at such address, shall initially be as fixed in the Corporation’s

amended and restated certificate of incorporation (as may be further amended and/or restated

from time to time, the “Certificate of Incorporation”). The registered office or registered agent

of the Corporation may thereafter be changed from time to time by action of the board of

directors of the Corporation (the “Board of Directors”).

Section 1.2 Other Offices. The Corporation may also have offices at such other

places, both within and without the State of Delaware, as the Board of Directors may from time

to time determine or the business of the Corporation may require.

Section 1.3 Books and Records.

(a) The books and records of the Corporation may be kept outside the State of

Delaware at such place or places as may from time to time be designated by the Board of

Directors.

(b) The Corporation shall, either at its principal executive office or at such

place or places as designated by the Board of Directors, keep a record of its stockholders listing

their names and addresses and the number and class of shares held by each such stockholder, a

copy of these bylaws, as may be amended to date, minute books, accounting books and other

records.

(c) Any such records maintained by the Corporation may be kept on, or by

means of, or be in the form of, any information storage device or method, provided that the

records so kept can be converted into clearly legible paper form within a reasonable time. When

records are kept in such manner, a clearly legible paper form produced from or by means of the

information storage device or method shall be admissible in evidence, and accepted for all other

purposes, to the same extent as an original paper form accurately portrays the record. The

Corporation shall so convert any records so kept upon the request of any person or entity entitled

to inspect such records pursuant to the provisions of the Certificate of Incorporation, these

bylaws or applicable law.

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ARTICLE II

STOCKHOLDERS

Section 2.1 Place of Meetings. Meetings of stockholders of the Corporation shall be

held at any place, if any, either within or without the State of Delaware, as may be designated

from time to time by the Board of Directors. The Board of Directors may, in its sole discretion,

determine that a meeting of stockholders of the Corporation shall not be held at any place, but

may instead be held solely by means of remote communication. In the absence of notice to the

contrary, meetings of the stockholders of the Corporation shall be held at the principal executive

office of the Corporation.

Section 2.2 Annual Meeting. The annual meeting of the stockholders of the

Corporation shall be held on such date and at such place, if any, and/or by the means of remote

communication, and time as may be fixed by resolution of the Board of Directors from time to

time. At the annual meeting of the stockholders of the Corporation, directors shall be elected and

any other business may be transacted which is properly brought before the annual meeting in

accordance with the procedures set forth in Section 2.14 of these bylaws. Failure to hold any

annual meeting as aforesaid shall not constitute, be deemed to be or otherwise effect a forfeiture

or dissolution of the Corporation nor shall such failure affect otherwise valid corporate acts.

Section 2.3 Special Meetings. Except as otherwise required by applicable law or

provided in the instrument of designation of any series of preferred stock of the Corporation,

special meetings of stockholders of the Corporation may be called at any time and from time to

time only upon the written request (stating the purpose or purposes of the meeting) of (a) any

two or more members of the Board of Directors, (b) [the Chairman of the Board of Directors],

or (c) the holders of a majority of the total voting power of all the shares of capital stock of the

Corporation entitled to vote generally in the election of directors. Special meetings of the

stockholders of the Corporation may not be called by any person, group or entity other than those

specifically enumerated in this Section 2.3. The Board of Directors or the Chairman of the Board

of Directors shall determine the date, time, and place, if any, and/or means of remote

communication, of any special meeting, which shall be stated in a notice of meeting delivered by

the Board of Directors. Advance notice of stockholder nominations for the election of directors

and of business to be brought by stockholders of the Corporation before any meeting of the

stockholders of the Corporation, or any class or series of thereof, shall be given in the manner

provided in these bylaws. No business may be transacted at any special meeting of the

stockholders of the Corporation other than the business specified in the notice of such meeting.

Section 2.4 Chairman of the Meeting; Conduct of Meetings; Inspection of

Elections.

(a) Meetings of stockholders of the Corporation shall be presided over by the

chairman of the meeting, who shall be the Chairman of the Board of Directors or, in the absence

thereof, such person as the Chairman of the Board of Directors shall appoint, or, in the absence

thereof or in the event that the Chairman of the Board of Directors shall fail to make such

appointment, any officer of the Corporation appointed by the Board of Directors.

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(b) The secretary of any meeting of the stockholders of the Corporation shall

be the Secretary or Assistant Secretary, or in the absence thereof, such person as the chairman of

the meeting appoints. The secretary of the meeting shall keep the minutes thereof.

(c) The Board of Directors shall be entitled to make such rules or regulations

for the conduct of meetings of stockholders of the Corporation as it shall deem necessary,

appropriate or convenient from time to time. Subject to such rules and regulations, if any, the

chairman of the meeting 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 and to

do all acts as, in the judgment of such chairman, are necessary, appropriate or convenient (and

not inconsistent with the Certificate of Incorporation or these bylaws) for the proper conduct of

the meeting, including, without limitation, establishing an agenda of business of the meeting,

recognizing stockholders entitled to speak, calling for the necessary reports, stating questions and

putting them to a vote, calling for nominations, announcing the results of voting, establishing

rules or regulations to maintain order, imposing restrictions on entry to the meeting after the time

fixed for commencement thereof and the fixing of the date and time of the opening and closing of

the polls for each matter upon which the stockholders of the Corporation will vote at a meeting

(and shall announce such at the meeting).

(d) If required by applicable law, the Board of Directors shall appoint one or

more inspectors, which inspector or inspectors may include individuals who serve the

Corporation in other capacities, including, without limitation, as officers, employees, agents or

representatives, to act at a meeting of stockholders of the Corporation and make a written report

thereof. One or more persons may be designated as alternate inspectors to replace any inspector

who fails to act. If no inspector or alternate has been appointed to act or is able to act at a

meeting of stockholders of the Corporation, the chairman of the meeting shall appoint one or

more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall

take an oath faithfully to execute the duties of inspector with strict impartiality and according to

the best of his or her ability. The inspectors shall have such other duties as may be prescribed by

applicable law.

Section 2.5 Notice.

(a) Whenever stockholders of the Corporation are required or permitted to

take any action at a meeting (whether special or annual), written notice (unless oral notice is

reasonable under the circumstances) stating the place (if any), date, and time of the meeting, the

means of remote communication (if any) by which such stockholders and proxy holders may be

deemed to be present in person and vote at such meeting, the record date for determining the

stockholders of the Corporation entitled to vote at the meeting (if such date is different from the

record date for stockholders of the Corporation entitled to notice of the meeting) and, in the case

of special meetings, the purpose or purposes of such meeting, shall be given to each stockholder

of the Corporation entitled to vote at such meeting not fewer than ten (10) nor more than sixty

(60) days before the date of the meeting except as otherwise required by applicable law, the

Certificate of Incorporation or these bylaws. In the case of an annual meeting, the notice need

not state the purpose or purposes of the meeting unless the Certificate of Incorporation or the

General Corporation Law of the State of Delaware (as the same exists or may hereafter be

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amended from time to time, the “DGCL”) requires the purpose or purposes to be stated in the

notice of the meeting.

(b) All such notices shall be delivered in writing (unless oral notice is

reasonable under the circumstances) or by a form of electronic transmission if receipt thereof has

been consented to by the stockholder of the Corporation to whom the notice is given. If mailed,

such notice shall be deemed to be delivered when deposited in the United States mail, postage

prepaid, addressed to such stockholder at such stockholder’s address as it appears on the records

of the Corporation. If given by facsimile telecommunication, such notice shall be deemed to be

delivered when directed to a number at which such stockholder has consented to receive notice

by facsimile. Subject to the limitations of Section 2.6 of these bylaws, if given by electronic

transmission, such notice shall be deemed to be delivered: (i) by electronic mail, when directed to

an electronic mail address at which such stockholder has consented to receive notice; (ii) if by a

posting on an electronic network together with separate written notice to such stockholder of

such specific posting delivered by electronic mail or by United States mail, postage prepaid,

addressed to such stockholder at such stockholder’s address as it appears on the records of the

Corporation, upon the later of (x) such posting and (y) the giving of such separate notice; and (iii)

if by any other form of electronic transmission, when directed to such stockholder. An affidavit

of the Secretary or an Assistant Secretary, the transfer agent of the Corporation or any 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.

(c) Whenever notice is required to be given under any provision of the DGCL,

the Certificate of Incorporation or these bylaws, a written waiver thereof, signed by the

stockholder of the Corporation entitled to notice, or a written waiver by electronic transmission

by the person or entity entitled to notice, whether before or after the time stated therein, shall be

deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, any

meeting of the stockholders of the Corporation need be specified in any waiver of notice of such

meeting.

(d) Attendance of a stockholder of the Corporation at a meeting of the

stockholders of the Corporation shall constitute a waiver of notice of such meeting, except when

such stockholder attends for the express purpose of objecting at the beginning of the meeting to

the transaction of any business because the meeting is not lawfully called or convened.

(e) Whenever notice is required to be given under the DGCL, the Certificate

of Incorporation or these bylaws to any stockholder of the Corporation with whom

communication is unlawful, the giving of such notice to such stockholder shall not be required,

and there shall be no duty to apply to any governmental authority or agency for a license or

permit to give such notice to such stockholder. Any action or meeting which shall be taken or

held without notice to any such stockholder with whom communication is unlawful shall have

the same force and effect as if such notice had been duly given.

Section 2.6 Notice by Electronic Delivery. Without limiting the manner by which

notice otherwise may be given effectively to stockholders of the Corporation pursuant to the

DGCL, the Certificate of Incorporation or these bylaws, any notice to stockholders of the

Corporation given by the Corporation under any provision of the DGCL, the Certificate of

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Incorporation or these bylaws shall be effective if given by a form of electronic transmission

consented to by the stockholder of the Corporation to whom the notice is given. Any such

consent shall be revocable by such stockholder by written notice to the Secretary. Any such

consent shall be deemed revoked if: (i) the Corporation is unable to deliver by electronic

transmission two (2) consecutive notices of meetings or of other business given by the

Corporation in accordance with such consent; and (ii) such inability becomes known to the

Secretary or an Assistant Secretary or to the transfer agent or other person responsible for the

giving of notice. However, the inadvertent failure to treat such inability as a revocation shall not

invalidate any meeting or other action. For purposes of these bylaws, except as otherwise limited

by applicable law, the term “electronic transmission” means any form of communication not

directly involving the physical transmission of paper 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.

Section 2.7 Stockholders List. The officer having charge of the stock ledger of the

Corporation shall make, at least ten (10) days before every meeting of the stockholders of the

Corporation, a complete list of the stockholders of the Corporation entitled to vote at such

meeting (provided, however, if the record date for determining the stockholders of the

Corporation entitled to vote is less than ten (10) days before the date of the meeting, the list shall

reflect the stockholders of the Corporation entitled to vote as of the tenth (10th) day before the

meeting date), arranged in alphabetical order, showing the address of (and any form of electronic

transmission consented to by) each such stockholder and the number of shares registered in the

name of each such stockholder. Such list shall be open to the examination of any stockholder of

the Corporation for any purpose germane to the meeting for a period of at least ten (10) days

prior to the meeting: (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; and/or

(ii) during ordinary business hours at the principal place of business of the Corporation. 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. If the meeting is to be held at a place, then the list shall be

produced and kept at the time and place of the meeting during the whole time thereof and may be

examined by any stockholder of the Corporation who is present. If the meeting is to be held

solely by means of remote communication, then the list shall also be open to the examination of

any stockholder of the Corporation during the whole time of the meeting on a reasonably

accessible electronic network, and the information required to access such list shall be provided

with the notice of the meeting. Refusal or failure to prepare or make available the stockholder

list shall not affect the validity of any action taken at a meeting of stockholders of the

Corporation.

Section 2.8 Quorum. Except as otherwise provided by applicable law or by the

Certificate of Incorporation, the holders of a majority in voting power of the outstanding shares

of capital stock of the Corporation entitled to vote thereat, present in person or represented by

proxy, shall constitute a quorum for the transaction of business at all meetings of the

stockholders of the Corporation. If a quorum is not present, the chairman of the meeting or the

holders of a majority in voting power of the shares of capital stock of the Corporation present in

person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn

the meeting to another place, if any, date and time. When a quorum is once present to commence

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a meeting of the stockholders of the Corporation, it is not broken by the subsequent withdrawal

of any stockholders of the Corporation or their respective proxies.

Section 2.9 Adjournment and Postponement of Meetings.

(a) Any meeting of the stockholders of the Corporation, whether or not a

quorum is present, may be adjourned to be reconvened at a specific date, time, place (if any)

and/or by means of remote communication (if any) by the holders of a majority in voting power

of the shares of capital stock present in person or represented by proxy at the meeting and entitled

to vote at the meeting or, unless contrary to any provision of the Certificate of Incorporation,

these bylaws or applicable law, the Chairman of the Board of Directors or the affirmative vote of

a majority of the members of the Board of Directors. When a meeting of the stockholders of the

Corporation is adjourned to another date, time, place (if any), and/or by means of remote

communication (if any), notice need not be given of the adjourned meeting if the date, time and

place (if any) thereof, and/or the means of remote communication (if any) by which such

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; provided,

however, that 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 of the Corporation entitled to

vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for

determining such stockholders entitled to notice of such adjourned meeting the same or an earlier

date as that fixed for determination of stockholders of the Corporation entitled to vote at the

adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record

as of the record date so fixed for notice of such adjourned meeting.

(b) Any previously scheduled meeting of the stockholders of the Corporation

may be postponed, and (unless contrary to applicable law or the Certificate of Incorporation) any

special meeting of the stockholders of the Corporation may be cancelled, by resolution of the

Board of Directors upon notice given to such stockholders prior to the date previously scheduled

for such meeting of stockholders.

Section 2.10 Vote Required. When a quorum is present, the affirmative vote of the

majority in voting power of the shares of capital stock of the Corporation present in person or

represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of

the stockholders of the Corporation, unless the question is one upon which, by express provisions

of applicable law, the Certificate of Incorporation, these bylaws, the rules or regulations of any

stock exchange applicable to the Corporation, or pursuant to any regulation applicable to the

Corporation or its securities, or the instrument of designation of any series of preferred stock of

the Corporation, a different or additional vote is required or provided for, in which case such

express provision shall govern and control the decision of such question. Where a separate vote

by class or series is required or provided for, when a quorum is present, the affirmative vote of a

majority in voting power of the shares of capital stock of the Corporation of such class or series

present in person or represented by proxy at the meeting and entitled to vote on the subject matter

shall be the act of such class or series of stockholders, unless the question is one upon which, by

express provisions of applicable law, the Certificate of Incorporation, these bylaws, the rules or

regulations of any stock exchange applicable to the Corporation, or pursuant to any regulation

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applicable to the Corporation or its securities, or the designation of any series of preferred stock

of the Corporation, a different vote is required or provided for, in which case such express

provision shall govern and control the decision of such question.

Section 2.11 Voting Rights. Except as otherwise provided by applicable law, each

stockholder of the Corporation shall be entitled to that number of votes for each share of capital

stock of the Corporation held by such stockholder as set forth in the Certificate of Incorporation

or, in the case of preferred stock of the Corporation, in the instrument of designation thereof.

Section 2.12 Proxies. Each stockholder of the Corporation entitled to vote at a meeting

of stockholders of the Corporation may authorize another person or entity to act for such

stockholder by proxy in such manner as prescribed under the DGCL, but no such proxy shall be

voted or acted upon after three (3) years from its date unless such proxy expressly provides for a

longer period. At each meeting of the stockholders of the Corporation, and before any voting

commences, all proxies filed at or before the meeting shall be submitted to and examined by the

Secretary or a person designated by the Secretary, and no shares may be represented or voted

under a proxy that has been found (in the reasonable determination of the Secretary or such

designee) to be invalid or irregular. Reference by the Secretary in the minutes of the meeting to

the regularity of a proxy shall be received as prima facie evidence of the facts stated for the

purpose of establishing the presence of a quorum at such meeting and for all other purposes. The

revocability of a proxy that states on its face that it is irrevocable shall be governed by the

applicable provisions of the DGCL and, without limiting the foregoing, a duly executed proxy

shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with

an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable

regardless of whether the interest with which it is coupled is an interest in the stock itself or an

interest in the corporation generally.

Section 2.13 Record Date.

(a) In order that the Corporation may determine the stockholders of the

Corporation entitled to notice of any meeting of such stockholders or any adjournment thereof,

the Board of Directors 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 of Directors, and which

record date shall, unless otherwise required by applicable law, not be more than sixty (60) nor

less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date,

such date shall also be the record date for determining the stockholders of the Corporation

entitled to vote at such meeting unless the Board of Directors 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 of Directors, the record date for

determining stockholders of the Corporation entitled to notice of or to vote at a meeting of such

stockholders shall be at the close of business on the day immediately preceding the day on which

notice is given, or, if notice is waived, at the close of business on the day immediately 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 of the Corporation shall apply to any

adjournment of the meeting; provided, however, that the Board of Directors may fix a new record

date for determination of such stockholders entitled to vote at the adjourned meeting, and in such

case shall also fix as the record date for such stockholders entitled to notice of such adjourned

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meeting the same or an earlier date as that fixed for determination of stockholders of the

Corporation entitled to vote in accordance herewith at the adjourned meeting.

(b) In order that the Corporation may determine the stockholders of the

Corporation entitled to receive payment of any dividend or other distribution or allotment of any

rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock

or for the purpose of any other lawful action, the Board of Directors may fix a record date, which

record date shall not (i) precede the date upon which the resolution fixing the record date is

adopted, or (ii) be more than sixty (60) days prior to such action. If no such record date is fixed,

the record date for determining stockholders of the Corporation for any such purpose shall be at

the close of business on the day on which the Board of Directors adopts the resolution relating

thereto.

(c) Unless such action in writing without a meeting is otherwise restricted by

the Certificate of Incorporation, in order that the Corporation may determine the stockholders of

the Corporation entitled to express consent to corporate action in writing without a meeting, the

Board of Directors 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 of Directors, 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 of Directors. Unless such action in writing without a

meeting is otherwise restricted by the Certificate of Incorporation, if no record date for

determining stockholders of the Corporation entitled to express consent to corporate action in

writing without a meeting is fixed by the Board of Directors, (i) when no prior action of the

Board of Directors is required by applicable law, the record date for such purpose shall be the

first date on which a signed written 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 of Directors is required by applicable law, the record date for such purpose shall be at the

close of business on the day on which the Board of Directors adopts the resolution taking such

prior action.

Section 2.14 Advance Notice of Stockholder Business.

(a) Only such business shall be conducted before a meeting of the

stockholders of the Corporation as shall have been properly brought before such meeting. To be

properly brought before an annual or special meeting of the stockholders of the Corporation,

from and after the date Common Stock (as defined in the Certificate of Incorporation) is listed,

whether in connection with an initial public offering of the Common Stock or otherwise, on a

U.S. national securities exchange registered with the Securities and Exchange Commission and

any governmental body or agency succeeding to the functions thereof (a “Public Listing”),

business must be: (i) with respect to any annual meeting, (A) specified in the notice of meeting

(or any supplement or amendment thereto) given by or at the direction of the Board of Directors

or a duly authorized committee of the Board of Directors; (B) otherwise properly brought before

the meeting by or at the direction of the Board of Directors or a duly authorized committee of the

Board of Directors; or (C) otherwise properly brought before the meeting by any stockholder of

the Corporation (1) who is a stockholder of record on the date of the giving of the notice

provided for in this Section 2.14 and on the record date for the determination of stockholders of

the Corporation entitled to vote at such annual meeting and (2) who complies with the notice

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procedures set forth in this Section 2.14; and (ii) with respect to any special meeting, specified in

the notice of meeting (or any supplement or amendment thereto) given to the stockholders of the

Corporation by the Board of Directors pursuant to and in accordance with Section 2.3. For the

avoidance of doubt, the provisions in this Section 2.14 shall not apply prior to completion of a

Public Listing.

(b) For such business to be considered properly brought before the meeting by

a stockholder of the Corporation, such stockholder must, in addition to any other applicable

requirements, have given timely notice thereof in proper written form to the Secretary. To be

timely with respect to any annual meeting, such stockholder’s notice to the Secretary must be

delivered to or mailed and received by the Secretary at the principal executive office of the

Corporation no fewer than ninety (90) and no more than one hundred twenty (120) days prior to

the first (1st) anniversary of the immediately preceding annual meeting of the stockholders of the

Corporation; provided, however, that in the event that no annual meeting was held in the

previous year or the annual meeting is called for a date that is not within thirty (30) days before

or after such anniversary date, notice by such stockholder to be timely must be so received not

later than the close of business on the tenth (10th) day following the day on which notice of the

date of the annual meeting was mailed. To be timely with respect to any special meeting, such

stockholder’s notice to the Secretary must be delivered or mailed and received by the Secretary at

the principal executive office of the Corporation not less than sixty (60) days prior to the date of

such meeting; provided, however, that in the event that less than seventy (70) days’ notice of the

date of the meeting is given to stockholders of the Corporation, to be timely such stockholder’s

notice must be delivered or mailed and received by the Secretary at the principal executive office

of the Corporation not later than the close of business on the tenth (10th) day following the

earlier of the day on which such notice is mailed by the Corporation. In no event shall the public

announcement of an adjournment or postponement of an announced meeting commence a new

time period (or extend any time period) for the giving of a stockholder’s notice as provided in

this Section 2.14.

(c) To be in proper written form, a stockholder’s notice to the Secretary must

set forth as to each matter such stockholder proposes to bring before the annual meeting: (i) a

brief description of the business desired to be brought before the annual meeting and the reasons

for conducting such business at the annual meeting; (ii) as to the stockholder of the Corporation

giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (A) the

name and address of such stockholder, as they appear on the Corporation’s books, and of such

beneficial owner, (B) the class or series and number of shares of capital stock of the Corporation

which are directly or indirectly (including through any derivative arrangement) owned (1)

beneficially and (2) of record by such stockholder and by such beneficial owner, (C) a description

of all arrangements or understandings between such stockholder or such beneficial owner and

any other person or entity (including, without limitation, their names) in connection with the

ownership of the capital stock of the Corporation and the proposal of such business by such

stockholder and such beneficial owner, and any material interest (financial or otherwise) of such

stockholder or such beneficial owner in such business, (D) whether either such stockholder or

beneficial owner intends to deliver a form of proxy to holders of at least the percentage of the

Corporation’s voting shares required under applicable law to approve the proposal and (E) if the

Corporation is then subject to Section 14(a) of the Securities Exchange Act of 1934, as amended

(the “Exchange Act”), any other information relating to such stockholder and beneficial owner,

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if any, required to be disclosed in a proxy statement or other filing required to be made in

connection with a solicitation of proxies for the proposal pursuant to and in accordance with

Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; and

(iii) a representation that such stockholder is a holder of record of stock of the Corporation

entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to

introduce the business specified in the notice. As used herein, shares “beneficially owned” by a

person (and phrases of similar import) shall mean all shares which such person is deemed to

beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act, including, without

limitation, shares which are beneficially owned, directly or indirectly, by any other person with

which such person has any agreement, arrangement or understanding for the purpose of

acquiring, holding, voting or disposing of any shares of the capital stock of the Corporation.

(d) The chairman of a meeting of the stockholders of the Corporation shall

determine and declare at such meeting whether the stockholder proposal was made in accordance

with the terms of this Section 2.14. If the chairman of the meeting determines that such proposal

was not properly brought before the meeting in accordance with the foregoing procedures, the

chairman of the meeting shall declare to the meeting that the proposal was not properly brought

before the meeting and the business of such proposal shall not be transacted.

(e) This provision shall not prevent the consideration and approval or

disapproval at any annual or special meeting of stockholders of the Corporation of reports of

officers, directors and committees of the Board of Directors, but in connection with such reports,

no new business shall be acted upon at such meeting unless stated, filed and received as herein

provided.

(f) In addition, notwithstanding anything in this Section 2.14 to the contrary, a

stockholder of the Corporation intending to nominate one or more persons for election as a

director at an annual or special meeting of stockholders of the Corporation must comply with

Section 2.15 of these bylaws for such nomination to be properly brought before such meeting.

(g) For purposes of this Section 2.14, any adjournment(s) or postponement(s)

of the original meeting whereby the meeting will reconvene within ninety (90) days from the

original date shall be deemed for purposes of notice to be a continuation of the original meeting

and no business may be brought before any such reconvened meeting unless pursuant to a notice

of such business which was timely for the meeting and properly presented as determined as of the

date originally scheduled.

Section 2.15 Advance Notice of Director Nominations.

(a) Unless otherwise required by applicable law or the Certificate of

Incorporation, from and after the date on which the Corporation completes a Public Listing, only

persons who are nominated in accordance with the following procedures shall be eligible for

election as directors of the Corporation, except as may be otherwise provided in the instrument of

designation of any series of preferred stock of the Corporation with respect to the right of holders

of preferred stock of the Corporation to nominate and elect a specified number of directors of the

Corporation, who shall be nominated as provided therein. For the avoidance of doubt, the

provisions in this Section 2.15 shall not apply prior to completion of a Public Listing.

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(b) Nominations of persons for election to the Board of Directors shall be

made only at an annual or special meeting of stockholders of the Corporation called for the

purpose of electing directors and must be (i) specified in the notice of meeting (or any

supplement or amendment thereto) and (ii) made by (A) the Board of Directors or a duly

authorized committee of the Board of Directors (or at the direction thereof) or (B) made by any

stockholder of the Corporation (1) who is a stockholder of record on the date of the giving of the

notice provided for in this Section 2.15 and on the record date for the determination of

stockholders entitled to vote at such meeting and (2) who complies with the notice procedures set

forth in this Section 2.15.

(c) In addition to any other applicable requirements, for a nomination to be

made by a stockholder of the Corporation, such stockholder must have given timely notice

thereof in proper written form to the Secretary. To be timely, such stockholder’s notice to the

Secretary must be delivered to or mailed and received at the principal executive office of the

Corporation: (i) in the case of an annual meeting of the stockholders of the Corporation, no fewer

than ninety (90) nor more than one hundred twenty (120) days prior to the first (1st) anniversary

of the immediately preceding annual meeting; provided, however, that in the event that no annual

meeting was held in the previous year or the annual meeting is called for a date that is not within

thirty (30) days before or after such anniversary date, notice by such stockholder to be timely

must be so received not later than the close of business on the tenth (10th) day following the day

on which notice of the date of the annual meeting was mailed, and (ii) in the case of a special

meeting of stockholders of the Corporation called for the purpose of electing directors, not less

than sixty (60) days prior to the meeting; provided, however, that in the event that less than

seventy (70) days’ notice of the date of the meeting is given or made to stockholders of the

Corporation, notice by such stockholder to be timely must be so received not later than the close

of business on the tenth (10th) day following the earlier of the day on which such notice was

mailed. Notwithstanding anything to the contrary in the immediately preceding sentence, in the

event that the number of directors to be elected to the Board of Directors is increased, a

stockholder’s notice required by this Section 2.15 shall also be considered timely, but only with

respect to nominees for any new positions created by such increase and only if otherwise timely

notice of nomination for all other directorships was delivered by such stockholder in accordance

with the requirements of the immediately preceding sentence, if it shall be delivered to the

Secretary at the principal executive office of the Corporation not later than the close of business

on the tenth (10th) day following the day on which notice to the stockholders of the Corporation

was given by the Corporation naming all of the nominees for director or specifying the size of the

increase in the number of directors to serve on the Board of Directors, even if such tenth (10th)

day shall be later than the date for which a nomination would otherwise have been required to be

delivered to be timely. In no event shall the public announcement of an adjournment or

postponement of an announced meeting commence a new time period (or extend any time

period) for the giving of a stockholder’s notice as provided in this Section 2.15.

(d) To be in proper written form, a stockholder’s notice to the Secretary

pursuant to this Section 2.15 must set forth (i) as to each person whom the stockholder of the

Corporation proposes to nominate for election as a director, (A) the name, age, business address,

and residence address of such person, (B) the principal occupation or employment of the person,

(C) the class or series and number of shares of capital stock of the Corporation which are directly

or indirectly (including through any derivative arrangement) owned beneficially or of record by

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the person, and (D) any other information relating to the person that would be required to be

disclosed in a proxy statement or other filing required to be made in connection with a

solicitation of proxies for an election of directors pursuant to the Exchange Act and the rules and

regulations promulgated thereunder if the Corporation were a reporting company under the

Exchange Act, and (ii) as to the stockholder of the Corporation giving the notice and the

beneficial owner, if any, on whose behalf the director nomination is made (A) the name and

address of such stockholder, as they appear on the Corporation’s books, and of such beneficial

owner; (B) the class or series and number of shares of capital stock of the Corporation which are

owned (1) beneficially and (2) of record by such stockholder and by such beneficial owner, (C) a

description of all arrangements or understandings between such stockholder or such beneficial

owner and any other person or entity (including, without limitation, their names) in connection

with the ownership of the capital stock of the Corporation and the nomination of such

nominee(s), and any material interest of such stockholder or such beneficial owner in such

nomination(s), (D) whether either such stockholder or beneficial owner intends to deliver a form

of proxy to holders of the Corporation’s voting shares to elect such nominee or nominees, (E) a

representation that the stockholder of the Corporation giving the notice is a holder of record of

stock of the Corporation entitled to vote at such meeting and that such stockholder intends to

appear in person or by proxy at the meeting to nominate the persons named in its notice and (F) if

the Corporation is then subject to Section 14(a) of the Exchange Act, any other information

relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy

statement or other filing required to be made in connection with a solicitation of proxies for an

election of directors pursuant to the Exchange Act and the rules and regulations promulgated

thereunder. Such notice must be accompanied by a written consent of each proposed nominee to

be named as a nominee and to serve as a director if elected. The Corporation may require any

nominee to furnish such other information (which may include meeting to discuss the

information) as may reasonably be required by the Corporation to determine the eligibility of

such nominee to serve as a director of the Corporation.

(e) If the chairman of a meeting of the stockholders of the Corporation

determines that a nomination was not made in accordance with the foregoing procedures, the

chairman of the meeting shall declare to the meeting that the nomination was defective and such

defective nomination shall be disregarded.

(f) Nothing in this Section 2.15 shall be deemed to affect any rights of the

holders of any series of preferred stock of the Corporation to elect directors pursuant to any

applicable provisions of the Certificate of Incorporation.

Section 2.16 Action Without a Meeting. Until the date on which the Corporation

completes a Public Listing, any action required or permitted to be taken at any annual or special

meeting of stockholders of the Corporation may be taken without a meeting, without prior notice

and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be

signed by the holders of outstanding stock of the Corporation having not less than the minimum

number of votes that would be necessary to authorize or take such action at a meeting at which

all shares entitled to vote thereon were present and voted and shall be delivered to the

Corporation by delivery to its registered office in the State of Delaware, its principal place of

business, or to an officer or agent of the Corporation having custody of the book in which

proceedings of meetings of stockholders of the Corporation are recorded. Following the date on

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which the Corporation completes a Public Listing, any action required or permitted to be taken at

any annual or special meeting of stockholders of the Corporation may be taken without a

meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth

the action so taken, shall be signed by all the holders of outstanding stock of the Corporation

entitled to vote thereon.

ARTICLE III

DIRECTORS

Section 3.1 General Powers. All corporate powers shall be exercised by or under the

authority of, and the business and affairs of the Corporation shall be managed under the direction

of, the Board of Directors. In addition to the powers and authority expressly conferred upon it by

these bylaws, the Board of Directors shall exercise all such powers of the Corporation and do all

such lawful acts and things as are not by applicable law or any other legal agreement among

stockholders of the Corporation, by the Certificate of Incorporation, or by these bylaws directed

or required to be exercised or done by the stockholders of the Corporation.

Section 3.2 Number and Election.

(a) The total number of directors constituting the entire Board of Directors

shall be not less than three (3) nor more than fifteen (15). Subject to the limits specified in the

immediately preceding sentence, the exact number of directors shall be determined from time to

time by the Board of Directors; provided, however, that in no case will a decrease in the number

of authorized directors constituting the Whole Board (as defined below) have the effect of

removing or shortening the term of any incumbent director.

(b) Except as provided in Section 3.6 of these bylaws and the Stockholders

Agreement of the Corporation, dated as of [●], 2017 (as amended, modified or supplemented

from time to time, the “Stockholders Agreement”), a plurality of the votes cast at any annual

meeting of stockholders of the Corporation or any special meeting of the stockholders of the

Corporation properly called for the purpose of electing directors shall elect directors of the

Corporation. Except as otherwise set forth in the instrument of designation of any class or series

of preferred stock of the Corporation, no stockholder of the Corporation shall be entitled to

cumulate votes on behalf of any candidate at any election of directors of the Corporation.

(c) All elections of directors of the Corporation shall be by written ballot,

unless otherwise provided in the Certificate of Incorporation or authorized by the Board of

Directors from time to time. If authorized by the Board of Directors, such requirement of a

written ballot shall be satisfied by a ballot submitted by electronic transmission; provided,

however, that any such electronic transmission must be either set forth or be submitted with

information from which it can be determined that the electronic transmission was authorized.

Section 3.3 Classes of Directors and Term of Office. The Board of Directors shall

be divided into three classes, designated Class I, Class II and Class III, and the term of office of

directors of one class shall expire at each annual meeting of stockholders of the Corporation, and

in all cases as to each director until his or her successor shall be duly elected and qualified or

until his or her earlier resignation, removal from office, death or incapacity. Upon the

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effectiveness of these bylaws (the “Effective Time”), the Board of Directors, in accordance with

the Stockholders Agreement, shall assign all members of the Board of Directors then in office to

a class, and the director(s) assigned to Class I shall hold office for a term expiring at the first

regularly scheduled annual meeting of stockholders of the Corporation following the Effective

Time, the director(s) assigned to Class II shall hold office for a term expiring at the second

regularly scheduled annual meeting of stockholders of the Corporation following the Effective

Time, and the director(s) assigned to Class III shall hold office for a term expiring at the third

regularly scheduled annual meeting of stockholders of the Corporation following the Effective

Time. At each succeeding annual meeting of stockholders of the Corporation, a number of

directors equal to the number of directors of the class whose term expires at the time of such

meeting (or, if less, the number of directors properly nominated and qualified for election) shall

be elected to hold office until the third succeeding annual meeting of stockholders of the

Corporation after their election.

Section 3.4 Removal. Except as provided in the Stockholders Agreement and subject

to the rights, if any, of the holders of shares of any class or series of preferred stock of the

Corporation then outstanding to remove directors as set forth in the instrument of designation of

such preferred stock applicable thereto, any director or the entire Board of Directors may be

removed from office, with or without cause, upon the affirmative vote of the holders of a

majority of the total voting power of all the shares of the Corporation entitled to vote generally in

the election of directors, voting together as a single class.

Section 3.5 Resignation. Any director may resign at any time upon notice given in

writing or by electronic transmission to the Corporation. Any resignation shall take effect at the

time specified therein or, if the time when it shall become effective is not specified therein,

immediately upon receipt. Unless otherwise specified therein, the acceptance of any such

resignation shall not be necessary to make it effective.

Section 3.6 Vacancies and Newly Created Directorships. Except as provided in the

Stockholders Agreement and subject to the rights, if any, of the holders of shares of any class or

series of preferred stock of the Corporation then outstanding to designate a director to fill a

vacancy as set forth in the instrument of designation of such preferred stock applicable thereto,

any vacancy on the Board of Directors resulting from any death, resignation, retirement,

disqualification, removal from office, or newly created directorship resulting from any increase

in the authorized number of directors or otherwise shall be filled only by the Board of Directors,

acting by a majority of the remaining directors then in office, even if less than a quorum, or by a

sole remaining director and not by the stockholders. Except as provided in the Stockholders

Agreement, a director elected to fill a vacancy shall hold office for a term expiring at the annual

meeting of stockholders at which the term of office of the class to which such director has been

appointed expires and until such director’s successor shall have been duly elected and qualified

or until such director’s earlier death, resignation or removal. If there are no directors in office,

then an election of directors shall be held in the manner provided by applicable law.

Section 3.7 [Chairman of the Board of Directors. The Chairman of the Board of

Directors shall be chosen from among the directors by a majority vote of the Whole Board (as

defined below). Any director elected as Chairman in accordance with this Section 3.7 shall hold

such office until such director’s earlier death, resignation, retirement, disqualification or removal

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from office or the election of any successor by the Board of Directors from time to time. The

Chairman of the Board of Directors shall preside at all meetings of the stockholders of the

Corporation and shall have such other powers and perform such other duties (including, without

limitation, as applicable, as an officer of the Corporation) as may be prescribed by the Board of

Directors or provided in these bylaws.]

Section 3.8 Meetings. Meetings of the Board of Directors may be held at such dates,

times and places (if any) and/or by means of remote communication (if any) as shall be

determined from time to time by the Board of Directors or as may be specified in a notice

regarding a meeting of the Board of Directors. Special meetings of the Board of Directors may

be called by the Chairman of the Board of Directors, the Chief Executive Officer or President of

the Corporation, or not less than a majority of the members of the Board of Directors and shall be

called by the President or the Secretary if directed by the Chairman of the Board of Directors, the

Chief Executive Officer or President of the Corporation or not less than a majority of the

members of the Board of Directors.

Section 3.9 Conduct of Meetings.

(a) Meetings of the Board of Directors shall be presided over by the chairman

of the meeting, who shall be the Chairman of the Board of Directors or, in the discretion of the

Board of Directors, such director as a majority of the directors present at such meeting shall

appoint.

(b) The Board of Directors shall be entitled to make such rules or regulations

for the conduct of meetings of the Board of Directors as it shall deem necessary, appropriate or

convenient.

Section 3.10 Notice.

(a) Unless the Certificate of Incorporation provides otherwise, (i) regular

meetings of the Board of Directors may be held without notice of the date, time, place or purpose

of the meeting at any date, time and place (if any) and/or means of remote communication (if

any), as shall from time to time be determined by the Board of Directors, and (ii) unless waived

by each of the directors entitled to notice thereof, special meetings of the Board of Directors shall

be preceded by at least twenty-four (24) hours’ notice of the date, time and place (if any) and/or

means of remote communication (if any). Any notice of a special or regular meeting of the

Board of Directors shall be given to each director orally (either in person or by telephone), in

writing (either by hand delivery, mail, courier or facsimile), or by electronic or other means of

remote communication, in each case, directed to each director at that director’s address,

telephone number, facsimile number or electronic mail address, as the case may be, as shown on

the Corporation’s records. Any oral notice may be communicated either to the director or to a

person at the office of the director who the person giving notice has reason to believe will

promptly communicate such notice to the director. If the notice is: (i) delivered personally by

hand, by courier, or orally by telephone or otherwise, (ii) sent by facsimile or (iii) sent by

electronic mail, 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 United States mail or courier service, it shall be

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deposited in the United States mail or with the courier at least three (3) business days before the

time of the holding of the meeting.

(b) Whenever notice is required to be given under any provisions of the

DGCL, the Certificate of Incorporation or these bylaws, a written waiver thereof, signed by the

director entitled to notice, or a waiver by electronic transmission by the person entitled to notice,

whether before or after the time stated therein, shall be deemed equivalent to notice. Neither the

business to be transacted at, nor the purpose of, any meeting of the Board of Directors or

committee thereof need be specified in any waiver of notice of such meeting.

(c) Attendance of a director at a meeting of the Board of Directors shall

constitute a waiver of notice of such meeting, except when the director attends for the express

purpose of objecting at the beginning of the meeting to the transaction of any business because

the meeting is not lawfully called or convened. Such director shall be conclusively presumed to

have assented to any action taken at any such meeting unless his or her dissent shall be entered in

the minutes of the meeting or unless his or her written dissent to such action shall be filed with

the person acting as the secretary of the meeting before the adjournment thereof or shall be

forwarded by registered mail to the Secretary immediately after the adjournment of the meeting.

Such right to dissent shall not apply to any member who voted in favor of such action.

Participation by means of remote communication, including, without limitation, by means of

conference telephone or other communications equipment by means of which all persons

participating in the meeting can adequately communicate with each other, shall constitute

attendance in person at the meeting.

Section 3.11 Quorum and Adjournment. Subject to Section 3.6, a majority of the

Whole Board (as defined below) shall constitute a quorum for the transaction of business at all

meetings of the Board of Directors, except as otherwise provided by applicable law or by the

Certificate of Incorporation or these bylaws. If a quorum is not present, the Chairman of the

Board of Directors or a majority of the directors present at the meeting may adjourn the meeting

without further notice to another date, time and place (if any) and/or means of remote

communications (if any). When a quorum is once present to commence a meeting of the Board

of Directors, it is not broken by the subsequent withdrawal of any directors. At any adjourned

meeting at which a quorum is present, any business may be transacted which might have been

transacted at the meeting as originally called. As used in these bylaws, the term “Whole Board”

shall mean the total number of authorized directors whether or not there exists any vacancies in

previously authorized directorships.

Section 3.12 Vote Required. Subject to the Certificate of Incorporation, the

Stockholders Agreement, these bylaws, the DGCL and the rights, if any, of those directors who

may be elected by the holders of any class or series of preferred stock of the Corporation as set

forth in the instrument of designation of such preferred stock, the act by affirmative vote of a

majority of the directors present at a meeting of the Board of Directors at which there is a

quorum shall be an act of the Board of Directors.

Section 3.13 Minutes. The Secretary shall act as secretary of all meetings of the Board

of Directors but in the absence of the secretary, the Chairman of the Board of Directors may

appoint any other person present to act as secretary of the meeting. The secretary of the meeting

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shall keep the minutes thereof. Minutes of any regular or special meeting of the Board of

Directors shall be prepared and distributed to each director.

Section 3.14 Board Action by Written Consent Without a Meeting. Unless

otherwise restricted by the Certificate of Incorporation, any action required or permitted to be

taken at any meeting of the Board of Directors, or any committee thereof, may be taken without a

meeting if all members of the Board of Directors, or such committee, consent thereto in writing

or by electronic transmission, and the writing(s) or electronic transmission(s) reasonably describe

the action taken and are filed with the minutes of proceedings of the Board of Directors.

Section 3.15 Committees.

(a) The Board of Directors may by resolution create one or more committees

(and thereafter, by resolution, dissolve any such committee). Each such committee shall consist

of one or more of the directors of the Corporation who serve at the pleasure of the Board of

Directors. Committee members may be removed, with or without cause, at any time by

resolution of the Board of Directors and may resign from a committee at any time upon written

notice to the Corporation. The Board of Directors may designate one or more directors as

alternate members of any committee to 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 present at any meeting and not disqualified from voting, whether or not he or they

constitute a quorum, may unanimously appoint another member of the Board of Directors to act

at the meeting in the place of any such absent or disqualified member.

(b) Any such committee, to the extent provided in these bylaws or in a

resolution of the Board of Directors establishing such committee, shall have and may exercise all

the powers and authority of the Board of Directors 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

which may require it, to the extent permitted under applicable law. Any duly authorized action

and otherwise proper action of a committee of the Board of Directors shall be deemed an action

of the Board of Directors for purposes of these bylaws unless the context of these bylaws shall

expressly state otherwise.

(c) Each committee of the Board of Directors shall keep minutes of its

meetings and shall report its proceedings to the Board of Directors when requested or required by

the Board of Directors.

(d) Meetings and actions of committees of the Board of Directors shall be

governed by, and held and taken in accordance with, the provisions of Section 3.8, Section 3.9,

Section 3.10, Section 3.11, Section 3.12 and Section 3.14 of these bylaws, with such changes in

the context of those bylaws as are necessary to substitute the committee and its members for the

Board of Directors and its directors and, if there shall be a chairman of the committee, the

Chairman of the Board of Directors for the chairman of the committee; provided, however, that:

(i) the time of regular meetings of committees may be determined either by resolution of the

Board of Directors or by resolution of the committee; (ii) special meetings of committees may

also be called by resolution of the Board of Directors; and (iii) notice of special meetings of

committees shall also be given to all alternate members, who shall have the right to attend all

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meetings of the committee. The Board of Directors may adopt other rules for the government of

any committee not inconsistent with the provisions of these bylaws. Each committee of the

Board of Directors may fix its own other rules of procedure not inconsistent with the provisions

of these bylaws or the rules of such committee adopted by the Board of Directors and shall hold

its meetings as provided by such rules, except as may otherwise be provided by a resolution of

the Board of Directors designating such committee or as provided in these bylaws.

Section 3.16 Compensation. The Board of Directors, irrespective of any personal

interest of any of its members, may establish reasonable compensation of all directors for

services to the Corporation as directors, officers, or otherwise, or may delegate such authority to

an appropriate committee. Such compensation may be comprised of cash, property, stock,

options to acquire stock, or such other assets, benefits or consideration as such directors shall

deem, in the exercise of their sole discretion, to be reasonable and appropriate under the

circumstances. The Board of Directors also shall have authority to provide for or delegate an

authority to an appropriate committee to provide for reasonable pensions, disability or death

benefits, and other benefits or payments, to directors, officers, and employees and to their

families, dependents, estates, or beneficiaries on account of prior services rendered to the

Corporation by such directors, officers, and employees.

Section 3.17 Corporate Governance. Without otherwise limiting the powers of the

Board of Directors set forth in this Article III, if shares of capital stock of the Corporation are

listed for trading on either the Nasdaq Stock Market (“NASDAQ”) or the New York Stock

Exchange (“NYSE”), the Corporation shall comply with the corporate governance rules and

requirements of the NASDAQ or the NYSE, as applicable.

OFFICERS

Section 3.18 Officers. The officers of the Corporation shall be [a Chief Executive

Officer, a Chief Financial Officer, one or more Presidents (at the discretion of the Board of

Directors), a Treasurer, and a Secretary]. The Corporation may also have, at the discretion of the

Board of Directors, one or more Vice Presidents, one or more Assistant Treasurers, one or more

Assistant Secretaries, a Controller, and any such other officers as may be appointed from time to

time in accordance with the provisions of these bylaws. In addition, the Chairman of the Board

of Directors shall exercise powers and perform such other duties as an officer of the Corporation

as may be prescribed by the Board of Directors. Any number of offices may be held by the same

person. In its discretion, the Board of Directors may choose not to fill any office for any period

as it may deem advisable, except as required by applicable law. The officers of the Corporation

need not be stockholders of the Corporation nor, other than the Chairman of the Board of

Directors, directors of the Corporation.

Section 3.19 Election of Officers. The Board of Directors shall elect the officers of the

Corporation, except such officers as may be elected in accordance with the provisions of Section

4.3 of these bylaws, and subject to the rights, if any, of an officer under any employment

contract. Each officer shall hold office until his or her successor is elected and qualified or until

his or her earlier death, resignation or removal. A failure to elect officers shall not dissolve or

otherwise affect the Corporation. Vacancies may be filled or new offices created and filled by

the Board of Directors.

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Section 3.20 Appointment of Subordinate Officers. The Board of Directors may

appoint, or empower the Chief Executive Officer and/or one or more Presidents of the

Corporation 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 of Directors may from

time to time determine.

Section 3.21 Removal and Resignation.

(a) Notwithstanding the provisions of any employment agreement, any officer

of the Corporation may be removed at any time (i) by the majority vote of the Whole Board, with

or without cause, and (ii) by any other officer of the Corporation upon whom the Board of

Directors has expressly conferred the authority to remove another officer, in such case on the

terms and subject to the conditions upon which such authority was conferred upon such officer.

No elected officer shall have any contractual rights against the Corporation for compensation by

virtue of such election beyond the date of the election of his successor, his death, his resignation

or his removal from office, whichever event shall first occur, except as otherwise provided in an

employment contract or under an employee deferred compensation plan or as otherwise required

by applicable law.

(b) Any officer may resign at any time by giving written or electronic notice to

the Corporation. Any resignation shall take effect at the time specified therein or, if the time

when it shall become effective is not specified therein, immediately upon receipt. Unless

otherwise specified therein, the acceptance of any such resignation shall not be necessary to make

it effective.

Section 3.22 Vacancies. Any vacancy occurring in any office because of death,

resignation, retirement, disqualification, removal from office or otherwise may be filled as

provided in Section 4.2 and/or Section 4.3 of these bylaws.

Section 3.23 Chief Executive Officer. Subject to the powers of the Board of Directors,

the Chief Executive Officer shall be responsible for the general management of the business,

affairs and property of the Corporation and control over its officers, agents and employees, and

shall see that all orders and resolutions of the Board of Directors are carried into effect. The

Chief Executive Officer shall have such other powers and perform such other duties as may be

prescribed by the Board of Directors or these bylaws.

Section 3.24 Chief Financial Officer. Subject to the powers of the Board of Directors,

the Chief Financial Officer shall have the responsibility for the financial affairs of the

Corporation and shall exercise supervisory responsibility for the performance of the duties of the

Treasurer and the Controller, if any, of the Corporation. If there is no Controller, the Chief

Financial Officer shall keep full and accurate account of receipts and disbursements in the books

of the Corporation and render to the Board of Directors, the Chairman of the Board, or the

President, whenever requested, an account of all his transactions as Chief Financial Officer and

of the financial condition of the Corporation. The Chief Financial Officer shall have such other

powers and perform such other duties as may be prescribed by the Board of Directors, the

Chairman of the Board of Directors or these bylaws.

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Section 3.25 President. The President(s) of the Corporation, subject to the powers of

the Board of Directors and the Chief Executive Officer, shall act in general executive capacity,

subject to the supervision and control of the Board of Directors. The President(s) shall have such

other powers and perform such other duties as may be prescribed by the Board of Directors, the

Chairman of the Board of Directors, the Chief Executive Officer or these bylaws.

Section 3.26 Vice President. The Vice President(s) shall have such powers and

perform such duties as may be prescribed by the Board of Directors, the Chairman of the Board

of Directors, the Chief Executive Officer, the President(s) or these bylaws.

Section 3.27 Treasurer. The Treasurer shall: (i) have the custody of the corporate

funds and securities; (ii) keep full and accurate accounts of receipts and disbursements of the

Corporation in books belonging to the Corporation; (iii) cause all monies and other valuable

effects of the Corporation to be deposited in the name and to the credit of the Corporation in such

banks as may be authorized by the Board of Directors; and (iv) cause the funds of the

Corporation to be disbursed when such disbursements have been duly authorized, taking proper

vouchers for such disbursements. The Treasurer shall have such other powers and perform such

other duties as may be prescribed by the Board of Directors, the Chairman of the Board of

Directors, the Chief Executive Officer, the Chief Financial Officer or these bylaws.

Section 3.28 Secretary. The Secretary shall attend all meetings of the Board of

Directors and of the stockholders and record all votes and the minutes of all proceedings in a

book to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all

meetings of the stockholders and special meetings of the Board of Directors and, when

appropriate, shall cause the corporate seal to be affixed to any instruments executed on behalf of

the Corporation. The Secretary shall also perform all duties incident to the office of Secretary

and such other duties as may be prescribed by the Board of Directors, the Chairman of the Board

of Directors, the Chief Executive Officer, the President(s) or these bylaws.

Section 3.29 Assistant Treasurers. The Assistant Treasurer, or if there shall be more

than one, the Assistant Treasurers in the order determined by the Board of Directors, shall, in the

absence or disability of the Treasurer, perform the duties and functions, exercise the powers and

be subject to all of the restrictions of the Treasurer. The Assistant Treasurer(s) shall have such

other powers and perform such other duties as may be prescribed by the Board of Directors, the

Chairman of the Board of Directors, the Chief Financial Officer, the Treasurer or these bylaws.

Section 3.30 Assistant Secretaries. The Assistant Secretary, or if there shall be more

than one, the Assistant Secretaries in the order determined by the Board of Directors, shall, in the

absence or disability of the Secretary, perform the duties and functions, exercise the powers and

be subject to all of the restrictions of the Secretary. The Assistant Secretary(ies) shall have such

other powers and perform such other duties as may be prescribed by the Board of Directors, the

Chairman of the Board of Directors, the Chief Executive Officer, the Secretary or these bylaws.

Section 3.31 Controller. The Controller, if any, shall keep full and accurate account of

receipts and disbursements in the books of the Corporation and render to the Board of Directors,

the Chairman of the Board, the President or Chief Financial Officer, whenever requested, an

account of all his transactions as Controller and of the financial condition of the Corporation.

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The Controller shall also perform all duties incident to the office of Controller and such other

duties as may be assigned to him by the Board of Directors, the Chairman of the Board, the Chief

Financial Officer or these bylaws.

Section 3.32 Delegation of Duties. In the absence, disability or refusal of any officer of

the Corporation to exercise and perform his or her duties, the Board of Directors may by

resolution delegate the powers and duties of such officer to any other officer or to any director, or

to any other person whom it may select.

ARTICLE IV

STOCK

Section 4.1 Stock Certificates. The shares of capital stock of the Corporation shall be

represented by certificates; provided, however, that the Board of Directors may provide by

resolution that shares of some or all of any or all classes or series of stock of the Corporation

shall be uncertificated and shall not be represented by certificates. Any such resolution by the

Board of Directors shall not apply to shares represented by a certificate until such certificate is

surrendered to the Corporation. Certificates representing shares of capital stock of the

Corporation shall be issued in such form as may be approved by the Board of Directors and shall

be signed by two authorized officers of the Corporation. The name of the person or entity to

whom the shares are issued, with the number of shares and date of issue, shall be entered on the

books of the Corporation.

Section 4.2 Electronic Signatures. Any and all of the signatures on a certificate

representing shares of capital stock of the Corporation may be electronic. In case any officer,

transfer agent or registrar who has signed or whose electronic signature has been placed upon a

certificate shall have 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 such person were such

officer, transfer agent or registrar at the date of issue.

Section 4.3 Special Designations of Shares. If the Corporation is authorized to issue

more than one class of stock or more than one series of any class, (a) to the extent the shares are

represented by certificates, the powers, designations, preferences, and 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 back of the certificate that the Corporation shall issue to represent

such class or series of stock; provided, however, that, except as otherwise required by applicable

law (including, without limitation, 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 a statement that the Corporation will furnish

without charge to each stockholder who so requests the powers, designations, preferences, and

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; and (b) to the

extent the shares are uncertificated, within a reasonable time after the issuance or transfer of

uncertificated shares, the Corporation shall send or cause to be sent to the registered owner

thereof a written notice containing the information required to be set forth or stated on

certificates pursuant to applicable provisions in the DGCL or a statement that the Corporation

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will furnish without charge to each stockholder who so requests the powers, designations,

preferences, and 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.

Section 4.4 Transfers of Stock.

(a) Shares of capital stock of the Corporation shall only be transferred on the

books of the Corporation by the holder of record thereof or by such holder’s attorney or legal

representative duly authorized in writing and, if the shares are represented by certificates, upon

surrender to the Corporation of the certificate or certificates for such shares endorsed by the

appropriate person or persons, with such evidence of the authenticity of such endorsement,

transfer, authorization and other matters as the Corporation may reasonably require, and

accompanied by all necessary stock transfer stamps. For shares of the Corporation’s capital stock

represented by certificates, it shall be the duty of the Corporation to issue a new certificate to the

person or entity entitled thereto, cancel the old certificate or certificates and record the

transaction on its books. 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 from and to whom transferred.

(b) The Board of Directors shall have the power and authority to make such

other rules and regulations as it may deem necessary or proper concerning the issue, transfer and

registration of certificates for shares of capital stock of the Corporation.

(c) The Board of Directors shall have the authority to appoint one or more

banks or trust companies organized under the laws of the United States or any state thereof to act

as its transfer agent or agents or registrar or registrars, or both, in connection with the transfer or

registration of any class or series of securities of the Corporation, and may require stock

certificates to be countersigned or registered by one or more of such transfer agents and/or

registrars.

(d) The Corporation shall have the authority to enter into and perform any

agreement with any number of stockholders of the Corporation of any one or more classes or

series of capital stock of the Corporation to restrict the transfer of shares of capital stock of the

Corporation of any one or more classes or series owned by such stockholders in any manner

permitted by the DGCL.

Section 4.5 Lost, Stolen or Destroyed Certificates. The Board of Directors may

direct a new certificate or certificates representing one or more shares of capital stock of the

Corporation or uncertificated shares to be issued in place of any certificate or certificates

previously issued by the Corporation alleged to have been lost, stolen or destroyed, upon the

making of an affidavit of that fact by the person or entity claiming the certificate of stock to be

lost, stolen or destroyed or may otherwise require production of such evidence of such loss, theft

or destruction as the Board of Directors may in its discretion require. Without limiting the

generality of the foregoing, when authorizing such issue of a new certificate or certificates or

such uncertificated shares, the Board of Directors may, in its discretion and as a condition

precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or

certificates, or such owner’s duly authorized attorney or legal representative, to give the

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Corporation a bond sufficient to indemnify the Corporation against any claim that may be made

against the Corporation on account of the loss, theft or destruction of any such certificate or the

issuance of such new certificate.

Section 4.6 Dividend Record Date. In order that the Corporation may determine the

stockholders of the Corporation entitled to receive payment of any dividend or other distribution

or allotment of any rights, or the stockholders entitled to exercise any rights of change,

conversion or exchange of stock, or for the purposes of any other lawful action, the Board of

Directors may fix a record date, which record date shall be determined in the manner set forth in

Section 2.13 of these bylaws.

Section 4.7 Registered Stockholders. The Corporation shall be entitled to recognize

the exclusive right of a person or entity registered on its books as the owner of shares of capital

stock of the Corporation to receive dividends, to vote, to receive notifications and otherwise to

exercise all the rights and powers of an owner of such shares, and shall not be bound to recognize

any equitable or other claim to or interest in such share or shares on the part of any other person

or entity, whether or not it shall have express or other notice thereof, except as otherwise

required by applicable law.

ARTICLE V

INDEMNIFICATION

The Corporation shall indemnify any Indemnitee (as defined in the Certificate of

Incorporation) as set forth in the Certificate of Incorporation.

ARTICLE VII

GENERAL PROVISIONS

Section 7.1 Reliance on Books and Records. Each director of the Corporation, each

member of any committee of the Board of Directors and each officer of the Corporation shall, in

the performance of his or her duties, be fully protected in relying in good faith upon the books of

account or other records of the Corporation and upon such information, opinions, reports or

documents presented to the Corporation by any of its officers or employees, or committees of the

Board of Directors so designated, or by any other person or entity as to matters which such

director or committee member reasonably believes are within such other person’s or entity’s

professional or expert competence and who has been selected with reasonable care by or on

behalf of the Corporation.

Section 7.2 Dividends. Dividends upon the capital stock of the Corporation, subject

to the requirements of the DGCL and the provisions of the Certificate of Incorporation, may be

declared by the Board of Directors from time to time at any regular or special meeting of the

Board of Directors and may be paid in cash, in property or in shares of the capital stock, or in any

combination thereof. Before payment of any dividend, there may be set aside out of any funds of

the Corporation available for dividends such sum or sums as the Board of Directors from time to

time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or

for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures,

notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing

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dividends, or for repairing or maintaining any property of the Corporation, or for any other

proper purpose. The Board of Directors may modify or abolish any such reserve in the manner in

which it was created.

Section 7.3 Corporate Funds; Checks, Drafts or Orders; Deposits. The funds of

the Corporation shall be kept in such depositories as shall from time to time be prescribed by the

Board of Directors. All checks, drafts or other orders for the payment of money by or to the

Corporation and all notes and other evidences of indebtedness issued in the name of the

Corporation shall be signed by such officer, officers, agent or agents of the Corporation, and in

such manner, as shall be determined by resolution of the Board of Directors from time to time.

All funds of the Corporation shall be deposited to the credit of the Corporation under such

conditions and in such banks, trust companies or other depositories as the Board of Directors

may designate or as may be designated by an officer or officers or agent or agents of the

Corporation to whom such power may, from time to time, be determined by the Board of

Directors.

Section 7.4 Execution of Contracts and Other Instruments. The Board of

Directors, except as otherwise required by applicable law, may authorize from time to time any

officer or agent of the Corporation to enter into any contract or to execute and deliver any other

instrument in the name of and on behalf of the Corporation. Such authority may be general or

confined to specific instances. No officer, agent or employee shall have any power or authority

to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable

for damages, whether monetary or otherwise, for any purpose or for any amount except as

specifically authorized in these bylaws or by the Board of Directors or an officer or committee

with the power to grant such authority.

Section 7.5 Signatures. In addition to the provisions for use of facsimile signatures

elsewhere specifically authorized in these bylaws, facsimile or electronic signatures of any

director or officer of the Corporation may be used whenever the signature of a director or officer

of the Corporation shall be required, except as otherwise required by applicable law or as

directed by the Board of Directors from time to time.

Section 7.6 Fiscal Year. The fiscal year of the Corporation shall be fixed, and once

fixed, may thereafter be changed from time to time, by the Board of Directors.

Section 7.7 Corporate Seal. The Board of Directors may provide a corporate seal

which shall be in the form of a circle and shall have inscribed thereon the name of the

Corporation, the year of its incorporation and the words “Corporate Seal, Delaware”. The seal

may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or

otherwise.

Section 7.8 Voting Securities Owned By the Corporation. Powers of attorney,

proxies, waivers of notice of meeting, consents, and other instruments relating to securities

owned by the Corporation may be executed in the name of and on behalf of the Corporation by

the Chief Executive Officer, the President, Treasurer or Secretary, any Vice President, Assistant

Treasurer or Assistant Secretary, or any other officer of the Corporation authorized to do so by

the Board of Directors. Any such officer may, in the name of and on behalf of the Corporation,

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take all such action as any such officer may deem advisable to vote in person or by proxy at any

meeting of security holders of any corporation or other entity in which the Corporation may own

securities, and at any such meeting shall possess and may exercise any and all rights and power

incident to the ownership of such securities and which, as the owner thereof, the Corporation

might have possessed and exercised if present.

Section 7.9 Section Headings. Section headings in these bylaws are for convenience

of reference only and shall not be given any substantive effect in limiting or otherwise construing

any provision herein.

Section 7.10 Inconsistent Provisions. In the event that any provision of these bylaws

is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL, or

any other applicable law, the provision of these bylaws shall not be given any effect to the extent

of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

Section 8.1 Amendments. Subject to the power of the stockholders of the

Corporation to adopt, amend or repeal any of these bylaws, these bylaws may be amended,

modified or repealed, and new bylaws may be adopted at any time by the affirmative vote of a

majority of the Whole Board. Notwithstanding any other provision of these bylaws or any

provision of law which might otherwise permit a lesser vote or no vote, but in addition to any

affirmative vote of the holders of any series of preferred stock of the Corporation required by

applicable law, by the Certificate of Incorporation or by any instrument designating any class or

series of preferred stock of the Corporation, the affirmative vote of the holders of a majority of

the total voting power of the shares of the Corporation entitled to vote generally in the election of

directors, voting together as a single class, shall be required for the stockholders of the

Corporation to alter, amend or repeal, or adopt any provision inconsistent with, the provisions of

these bylaws.

* * * *

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EXHIBIT A-7

Amended and Restated Articles of Incorporation of Gymboree Manufacturing, Inc.

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYMBOREE MANUFACTURING, INC.

The undersigned hereby certify that:

1. They are the [President] and the [Secretary], respectively, of Gymboree Manufacturing, 

Inc., a California corporation (the "Corporation").

2. The Articles of Incorporation of the Corporation are amended and restated to read in its 

entirety as set forth on Exhibit A attached hereto and incorporated by reference as if fully set 

forth herein.

3. The amendment and restatement of the Articles of Incorporation of the Corporation has 

been duly approved by the board of directors of the Corporation.

4. The amendment and restatement of the Restated Articles of Incorporation of the 

Corporation has been duly approved by the required vote of the sole shareholder in accordance 

with Section 902 of the General Corporation Law of the State of California. The total number of 

outstanding shares of Corporation is one hundred (100) shares. All one hundred (100) shares 

voted in favor of the amendment and restatement of the Articles of Incorporation of the 

Corporation. The number of shares voting in favor exceeded the vote required and the 

percentage vote required was more than 50%.

We further declare under the penalty of perjury under the laws of the State of California that the 

matters set forth in this certificate are true and correct to the best of my own knowledge.

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Date: __________________________, 2017

____________________________________

[_________________]

[President]

____________________________________

[_________________]

[Secretary]

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Exhibit A

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYMBOREE MANUFACTURING, INC.

ARTICLE I

The name of the Corporation is Gymboree Manufacturing, Inc.

ARTICLE II

The purpose of the Corporation is to engage in any lawful act or activity for which a 

corporation may be organized under the General Corporation Law of California other than the 

banking business, the trust company business or the practice of a profession permitted to be 

incorporated by the California Corporations Code.

ARTICLE III

1. Authorized Capital Stock.

The total number of shares of capital stock which the Corporation has authority to issue is 

One Thousand (1,000) shares of Common Stock.

2. Nonvoting Stock.

To the extent prohibited by Section 1123 of the United States Bankruptcy Code, the 

Corporation shall not issue any class or series of nonvoting equity securities; provided, however, 

that the foregoing (x) will have no force and effect beyond that required under Section 1123 of 

the United States Bankruptcy Code and (y) may be amended or eliminated in accordance with 

applicable law as from time to time in effect. For the purposes of this Section 2 of this 

Article III, any class or series of equity securities that has only such voting rights as are 

mandated under California law shall be deemed to be nonvoting for purposes of the restrictions 

of this Section 2 of this Article III.

ARTICLE IV

The liability of the directors of the corporation for monetary damages shall be eliminated 

to the fullest extent permissible under California law. Unless applicable law otherwise requires, 

any amendment, repeal or modification of this Article IV shall not adversely affect any right of 

any director under this Article IV that existed at or prior to the time of such amendment, repeal 

or modification.

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ARTICLE V

To the maximum extent permitted from time to time under the law of the State of 

California, the Corporation renounces any interest or expectancy of the Corporation in, or in 

being offered an opportunity to participate in, business opportunities that are from time to time 

presented to its officers, directors or shareholders, other than those officers, directors or 

shareholders who are employees of the Corporation. No amendment or repeal of this Article V

shall apply to or have any effect on the liability or alleged liability of any officer, director or 

shareholder of the Corporation for or with respect to any opportunities of which such officer, 

director, or shareholder becomes aware prior to such amendment or repeal.

ARTICLE VI

The corporation is authorized to provide, only with respect to actions other than those on 

behalf of the Corporation or by its shareholders, indemnification of agents (as defined in Section 

317 of the California Corporations Code) through bylaw provisions, agreements with agents, 

vote of shareholders or disinterested directors or otherwise, in excess of the indemnification 

otherwise permitted by Section 317 of the California Corporations Code. Unless applicable law 

otherwise requires, any amendment, repeal or modification of any provision of this Article VI

shall not adversely affect any contract or other right to indemnification of an agent of the 

Corporation that existed at or prior to the time of such amendment, repeal or modification.

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EXHIBIT A-8

Amended and Restated Articles of Incorporation of Gymboree Operations, Inc.

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYMBOREE OPERATIONS, INC.

The undersigned hereby certify that:

1. They are the [President] and the [Secretary], respectively, of Gymboree Operations, Inc., 

a 

California corporation (the "Corporation").

2. The Articles of Incorporation of the Corporation are amended and restated to read in its 

entirety as set forth on Exhibit A attached hereto and incorporated by reference as if fully set 

forth herein.

3. The amendment and restatement of the Articles of Incorporation of the Corporation has 

been duly approved by the board of directors of the Corporation.

4. The amendment and restatement of the Restated Articles of Incorporation of the

Corporation has been duly approved by the required vote of the sole shareholder in accordance 

with Section 902 of the General Corporation Law of the State of California. The total number of 

outstanding shares of Corporation is one hundred (100) shares. All one hundred (100) shares 

voted in favor of the amendment and restatement of the Articles of Incorporation of the 

Corporation. The number of shares voting in favor exceeded the vote required and the 

percentage vote required was more than 50%.

We further declare under the penalty of perjury under the laws of the State of California that the 

matters set forth in this certificate are true and correct to the best of my own knowledge.

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Date: __________________________, 2017

____________________________________

[_________________]

[President]

____________________________________

[_________________]

[Secretary]

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Exhibit A

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYMBOREE OPERATIONS, INC.

ARTICLE I

The name of the Corporation is Gymboree Operations, Inc.

ARTICLE II

The purpose of the Corporation is to engage in any lawful act or activity for which a 

corporation may be organized under the General Corporation Law of California other than the 

banking business, the trust company business or the practice of a profession permitted to be 

incorporated by the California Corporations Code.

ARTICLE III

1. Authorized Capital Stock.

The total number of shares of capital stock which the Corporation has authority to issue is 

One Thousand (1,000) shares of Common Stock.

2. Nonvoting Stock.

To the extent prohibited by Section 1123 of the United States Bankruptcy Code, the 

Corporation shall not issue any class or series of nonvoting equity securities; provided, however, 

that the foregoing (x) will have no force and effect beyond that required under Section 1123 of 

the United States Bankruptcy Code and (y) may be amended or eliminated in accordance with 

applicable law as from time to time in effect. For the purposes of this Section 2 of this 

Article III, any class or series of equity securities that has only such voting rights as are 

mandated under California law shall be deemed to be nonvoting for purposes of the restrictions 

of this Section 2 of this Article III.

ARTICLE IV

The liability of the directors of the corporation for monetary damages shall be eliminated 

to the fullest extent permissible under California law. Unless applicable law otherwise requires, 

any amendment, repeal or modification of this Article IV shall not adversely affect any right of 

any director under this Article IV that existed at or prior to the time of such amendment, repeal 

or modification.

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ARTICLE V

To the maximum extent permitted from time to time under the law of the State of 

California, the Corporation renounces any interest or expectancy of the Corporation in, or in 

being offered an opportunity to participate in, business opportunities that are from time to time 

presented to its officers, directors or shareholders, other than those officers, directors or 

shareholders who are employees of the Corporation. No amendment or repeal of this Article V

shall apply to or have any effect on the liability or alleged liability of any officer, director or 

shareholder of the Corporation for or with respect to any opportunities of which such officer, 

director, or shareholder becomes aware prior to such amendment or repeal.

ARTICLE VI

The corporation is authorized to provide, only with respect to actions other than those on 

behalf of the Corporation or by its shareholders, indemnification of agents (as defined in Section 

317 of the California Corporations Code) through bylaw provisions, agreements with agents, 

vote of shareholders or disinterested directors or otherwise, in excess of the indemnification 

otherwise permitted by Section 317 of the California Corporations Code. Unless applicable law 

otherwise requires, any amendment, repeal or modification of any provision of this Article VI

shall not adversely affect any contract or other right to indemnification of an agent of the 

Corporation that existed at or prior to the time of such amendment, repeal or modification.

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EXHIBIT A-9

Amended and Restated Articles of Incorporation of Gym-Mark, Inc.

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYM-MARK, INC.

The undersigned hereby certify that:

1. They are the [President] and the [Secretary], respectively, of Gym-Mark, Inc., a 

California corporation (the "Corporation").

2. The Articles of Incorporation of the Corporation are amended and restated to read in its 

entirety as set forth on Exhibit A attached hereto and incorporated by reference as if fully set 

forth herein.

3. The amendment and restatement of the Articles of Incorporation of the Corporation has 

been duly approved by the board of directors of the Corporation.

4. The amendment and restatement of the Restated Articles of Incorporation of the 

Corporation has been duly approved by the required vote of the sole shareholder in accordance 

with Section 902 of the General Corporation Law of the State of California. The total number of 

outstanding shares of Corporation is one hundred (100) shares. All one hundred (100) shares 

voted in favor of the amendment and restatement of the Articles of Incorporation of the 

Corporation. The number of shares voting in favor exceeded the vote required and the 

percentage vote required was more than 50%.

We further declare under the penalty of perjury under the laws of the State of California that the 

matters set forth in this certificate are true and correct to the best of my own knowledge.

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Date: __________________________, 2017

____________________________________

[_________________]

[President]

____________________________________

[_________________]

[Secretary]

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Exhibit A

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

GYM-MARK, INC.

ARTICLE I

The name of the Corporation is Gym-Mark, Inc.

ARTICLE II

The purpose of the Corporation is to engage in any lawful act or activity for which a 

corporation may be organized under the General Corporation Law of California other than the 

banking business, the trust company business or the practice of a profession permitted to be 

incorporated by the California Corporations Code.

ARTICLE III

1. Authorized Capital Stock.

The total number of shares of capital stock which the Corporation has authority to issue is 

One Thousand (1,000) shares of Common Stock.

2. Nonvoting Stock.

To the extent prohibited by Section 1123 of the United States Bankruptcy Code, the 

Corporation shall not issue any class or series of nonvoting equity securities; provided, however, 

that the foregoing (x) will have no force and effect beyond that required under Section 1123 of 

the United States Bankruptcy Code and (y) may be amended or eliminated in accordance with 

applicable law as from time to time in effect. For the purposes of this Section 2 of this 

Article III, any class or series of equity securities that has only such voting rights as are 

mandated under California law shall be deemed to be nonvoting for purposes of the restrictions 

of this Section 2 of this Article III.

ARTICLE IV

The liability of the directors of the corporation for monetary damages shall be eliminated 

to the fullest extent permissible under California law. Unless applicable law otherwise requires,

any amendment, repeal or modification of this Article IV shall not adversely affect any right of 

any director under this Article IV that existed at or prior to the time of such amendment, repeal 

or modification.

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ARTICLE V

To the maximum extent permitted from time to time under the law of the State of 

California, the Corporation renounces any interest or expectancy of the Corporation in, or in 

being offered an opportunity to participate in, business opportunities that are from time to time 

presented to its officers, directors or shareholders, other than those officers, directors or 

shareholders who are employees of the Corporation. No amendment or repeal of this Article V

shall apply to or have any effect on the liability or alleged liability of any officer, director or 

shareholder of the Corporation for or with respect to any opportunities of which such officer, 

director, or shareholder becomes aware prior to such amendment or repeal.

ARTICLE VI

The corporation is authorized to provide, only with respect to actions other than those on 

behalf of the Corporation or by its shareholders, indemnification of agents (as defined in Section 

317 of the California Corporations Code) through bylaw provisions, agreements with agents, 

vote of shareholders or disinterested directors or otherwise, in excess of the indemnification 

otherwise permitted by Section 317 of the California Corporations Code. Unless applicable law 

otherwise requires, any amendment, repeal or modification of any provision of this Article VI

shall not adversely affect any contract or other right to indemnification of an agent of the 

Corporation that existed at or prior to the time of such amendment, repeal or modification.

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EXHIBIT A-10

Amended and Restated Articles of Incorporation of S.C.C. Wholesale, Inc.

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AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

S.C.C. WHOLESALE, INC.

The undersigned hereby certify that:

1. They are the [President] and the [Secretary], respectively, of S.C.C. Wholesale, Inc., a 

California corporation (the "Corporation").

2. The Articles of Incorporation of the Corporation are amended and restated to read in its 

entirety as set forth on Exhibit A attached hereto and incorporated by reference as if fully set 

forth herein.

3. The amendment and restatement of the Articles of Incorporation of the Corporation has 

been duly approved by the board of directors of the Corporation.

4. The amendment and restatement of the Restated Articles of Incorporation of the 

Corporation has been duly approved by the required vote of the sole shareholder in accordance 

with Section 902 of the General Corporation Law of the State of California. The total number of 

outstanding shares of the Corporation is one (1) share. The one (1) share voted in favor of the 

amendment and restatement of the Articles of Incorporation of the Corporation. The number of 

shares voting in favor exceeded the vote required and the percentage vote required was more 

than 50%.

We further declare under the penalty of perjury under the laws of the State of California that the 

matters set forth in this certificate are true and correct to the best of my own knowledge.

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Date: __________________________, 2017

____________________________________

[_________________]

[President]

____________________________________

[_________________]

[Secretary]

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Exhibit A

AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

S.C.C. WHOLESALE, INC.

ARTICLE I

The name of the Corporation is S.C.C. Wholesale, Inc.

ARTICLE II

The purpose of the Corporation is to engage in any lawful act or activity for which a 

corporation may be organized under the General Corporation Law of California other than the 

banking business, the trust company business or the practice of a profession permitted to be 

incorporated by the California Corporations Code.

ARTICLE III

1. Authorized Capital Stock.

The total number of shares of capital stock which the Corporation has authority to issue is 

One Thousand (1,000) shares of Common Stock.

2. Nonvoting Stock.

To the extent prohibited by Section 1123 of the United States Bankruptcy Code, the 

Corporation shall not issue any class or series of nonvoting equity securities; provided, however, 

that the foregoing (x) will have no force and effect beyond that required under Section 1123 of 

the United States Bankruptcy Code and (y) may be amended or eliminated in accordance with 

applicable law as from time to time in effect. For the purposes of this Section 2 of this 

Article III, any class or series of equity securities that has only such voting rights as are 

mandated under California law shall be deemed to be nonvoting for purposes of the restrictions 

of this Section 2 of this Article III.

ARTICLE IV

The liability of the directors of the corporation for monetary damages shall be eliminated 

to the fullest extent permissible under California law. Unless applicable law otherwise requires, 

any amendment, repeal or modification of this Article IV shall not adversely affect any right of 

any director under this Article IV that existed at or prior to the time of such amendment, repeal 

or modification.

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ARTICLE V

To the maximum extent permitted from time to time under the law of the State of 

California, the Corporation renounces any interest or expectancy of the Corporation in, or in 

being offered an opportunity to participate in, business opportunities that are from time to time 

presented to its officers, directors or shareholders, other than those officers, directors or 

shareholders who are employees of the Corporation. No amendment or repeal of this Article V

shall apply to or have any effect on the liability or alleged liability of any officer, director or 

shareholder of the Corporation for or with respect to any opportunities of which such officer, 

director, or shareholder becomes aware prior to such amendment or repeal.

ARTICLE VI

The corporation is authorized to provide, only with respect to actions other than those on 

behalf of the Corporation or by its shareholders, indemnification of agents (as defined in Section 

317 of the California Corporations Code) through bylaw provisions, agreements with agents, 

vote of shareholders or disinterested directors or otherwise, in excess of the indemnification 

otherwise permitted by Section 317 of the California Corporations Code. Unless applicable law 

otherwise requires, any amendment, repeal or modification of any provision of this Article VI

shall not adversely affect any contract or other right to indemnification of an agent of the 

Corporation that existed at or prior to the time of such amendment, repeal or modification.

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EXHIBIT A-11

Articles of Organization—Conversion of Gymboree Retail Stores LLC

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LLC-1A 

State of California

Secretary of State

Limited Liability Company 

Articles of Organization - Conversion

File # 

IMPORTANT — Read all instructions before completing this form. This Space For Filing Use Only 

Converted Entity Information 

1. Name of Limited Liability Company (The name must include the words Limited Liability Company or the abbreviations LLC or L.L.C. The words 

Limited and Company may be abbreviated to Ltd. and Co., respectively.)

2. The purpose of the limited liability company is to engage in any lawful act or activity for which a limited liability company may be organized 

under the California Revised Uniform Limited Liability Company Act. 

3. The limited liability company will be managed by (check only one): 

One Manager More Than One Manager All Limited Liability Company Member(s)

4. Initial Street Address of Limited Liability Company's Designated Office in CA City State 

CA 

Zip Code 

5. Initial Mailing Address of Limited Liability Company, if different from Item 4 City State Zip Code 

Initial Agent for Service of Process: Item 6a: List the name of an individual or a corporation registered in CA under California Corporations Code 

section 1505 that agrees to be your agent for service of process. You may not list the converted entity as the agent. Item 6b: If the agent is an individual, 

list the agent's CA business or residential street address. Item 6c: If the agent is an individual and the converting entity is a CA corporation, limited 

partnership or general partnership, list the the agent's mailing address. Do not list an address if the agent is a CA registered corporate agent as the 

address for service of process is already on file. 

a. Name of Agent For Service of Process 

b. If an individual, Street Address of Agent for Service of Process - Do not list a P.O. Box City State Zip Code 

CA

6. 

c. If an individual, Mailing Address of Agent for Service of Process City State Zip Code 

Converting Entity Information 

7. Name of Converting Entity 

8. Form of Entity 9. Jurisdiction 10. CA Secretary of State File Number, if any 

The principal terms of the plan of conversion were approved by a vote of the number of interests or shares of each class that equaled or 

exceeded the vote required. If a vote was required, the following was required for each class: 

11.

The class and number of outstanding interests entitled to vote. AND The percentage vote required of each class.

Additional Information 

12. Additional information set forth on the attached pages, if any, is incorporated herein by this reference and made part of this certificate. 

I certify under penalty of perjury that the contents of this document are true. I declare I am the person who executed this instrument, which 

execution is my act and deed. 

Signature of Authorized Person Type or Print Name and Title of Authorized Person

13. 

Signature of Authorized Person Type or Print Name and Title of Authorized Person 

LLC-1A (REV 01/2016) APPROVED BY SECRETARY OF STATE 

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EXHIBIT B

Exit Financing Term Sheets

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Summary of Proposed Exit Financing

ABL Revolver Term Loan

Lenders • BAML (Agent) / Citizens in clubbed deal

− Commitments: BAML ($125m) / Citizens ($75m)

• Goldman Sachs

Facility Size / 

Structure

• $200m ABL Revolver Facility

− $75m LC Sublimit

− $20m Swingline

• $85m Term Loan

Security • First lien: Working capital (i.e., ABL Priority Collateral)

• Second lien: IP & other assets (i.e., Term Priority Collateral)

• First lien: IP & other assets (i.e., Term Priority Collateral)

• Second lien: Working capital (i.e., ABL Priority Collateral)

Uncommitted

Incremental

• $75m • $40m as long as Consolidated Secured Leverage Ratio (“CSLR”) at close less 

0.50x

Maturity / 

Amortization

• 5 Years • 5 years

• 1% amortization per year, paid quarterly beginning first full quarter post close

Mandatory 

Prepayment

• Usual and customary • 50% ECF, stepping down to 25% & 0% if CSLR is less than 1.0x and 0.5x, 

respectively

− First sweep after FY 2018

• Sale proceeds subject to $5m annual cap on reinvestment

Call Protection • None • NC1(1) / 102(1) / 101

Interest 

Rate

• Drawn: 1.25 – 1.75% (based on Average Excess Availability)

• Undrawn: 0.25%

• L (100) + 875 bps

ABL Borrowing

Base

• Credit Card A/R – 90%

• Trade A/R – 85%

• Inventory – 90%

− Seasonal increase to 92.5% from January 31 – May 31 of each year

• Reserves imposed by Agent in its permitted discretion

• Not subject to borrowing base

(1) No voluntary prepayments for first 18 months; 102% call protection applies for remainder of year 2.

EXIT FINANCING

1

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Summary of Proposed Exit Financing (cont’d)

ABL Revolver Term Loan

Financial 

Covenants

• Minimum excess availability of the greater of 10% of Loan Cap and $17.5m 

and if CSLR > 2.0x, Minimum excess availability cannot be less than 20% of 

Loan Cap for three or more consecutive business days

• Minimum excess revolver availability of 10%

− 20% if CSLR > 2.0x

• CSLR tested quarterly on LTM basis

− Jul’18: 4.0x

− Oct’18 - Jan’19: 3.25x

− Apr’19 – Jul’19: 2.75x

− Thereafter: 2.00x

− Implies 40-50%+ cushion to the business plan

Reporting / 

Monitoring

• Annual audited financial statements within 120 days after FYE’17 (90 days in 

subsequent years)

• Quarterly financial statements within 60 days after Q3’17 (45 days thereafter) 

and monthly within 55 days for the first 3 fiscal months post-close (35 days 

thereafter)

• Consolidated monthly budget for following fiscal year, including 

availability/liquidity forecast, within 60 days after FYE

• Monthly borrowing base certificates, springing to weekly if excess availability 

< max of (i) 12.5% of Loan Cap and (ii) $20m for five consecutive business 

days

• Annual field exams and appraisals, springing to two per year if excess 

availability < max of (i) 20% of Loan Cap and (ii) $35m for five consecutive 

business days, and unlimited if an Event of Default is continuing

• Annual audited financial statements within 120 days after FYE’17 (90 days in 

subsequent years)

• Quarterly financial statements within 60 days after Q3’17 (45 days thereafter) and 

monthly within 55 days for the first 3 fiscal months post-close (30 days thereafter)

• Consolidated quarterly budget for following fiscal year, including availability/liquidity 

forecast, within 60 days after FYE

• Ability to perform one inventory appraisal and field exam annually to the extent not 

conducted pursuant to the revolving credit facility 

Cash Dominion

• If (1) excess availability < max of (i) 12.5% of Loan Cap and (ii) $20m for five 

consecutive business days or (2) an Event of Default has occurred and is 

continuing

• N/A

Other Material

Covenants

(e.g., Investments, 

Acquisitions, RPs, 

Dividends)

• Post 4/30/2018, payment condition of either (i) both (x) Excess Avail > max of 

(a) 15% of Line Cap or (b) $22.5m; and (y) FCCR greater than 1.0x;

OR (ii) Excess Avail > max of (a) 20% of Line Cap or (b) $30m

− Immediately following and pro forma for next 6 months

• ECF prepayments required by Term Loan facility to be permitted so long as 

projected Excess Availability > $50m plus unrestricted cash for next six 

months on pro forma basis

• Limitation on indebtedness, liens, guarantees, negative pledges, investments, 

subsidiary distributions, restricted payments, dispositions, acquisitions fundamental 

changes and other customary negative covenants, subject to:

− $5m general basket for permitted indebtedness

− $5m general basket for permitted liens

− $5m general basket for permitted investments

− Ratio basket for junior or unsecured indebtedness up to 2.0x leverage subject to 

intercreditor agreement

− “Available Amount” post Feb’19 based upon retained excess cash flow and 

CSLR < 1.5x (can be utilized after second anniversary)

− Permitted store closures (excl ongoing clearance / closing store process ) < 

10% of Consolidated EBITDA

Closing

Conditions / Other

• Excess availability at close > $65m

• Other customary closing conditions

• Business plan to include at least $16.5m of annual rent savings

• Minimum excess availability at close TBD

• Other customary closing conditions

Note: Loan Cap defined as the lesser of the borrowing base or the total commitments.

EXIT FINANCING

2

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EXHIBIT E

List of Retained Causes of Action

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Retained Causes of Action

Article IV, Section M of the Plan provides as follows:1

In accordance with section 1123(b) of the Bankruptcy Code, but subject in all 

respects to Article VIII, Article IV, and Article I.A, hereof, the Reorganized Debtors 

shall retain and may enforce all rights to commence and pursue, as appropriate, any 

and all Causes of Action (including all Avoidance Actions), whether arising before or 

after the Petition Date, including any actions specifically enumerated in the Plan 

Supplement, and such rights to commence, prosecute, or settle such Causes of Action 

shall be preserved notwithstanding the occurrence of the Effective Date. 

The Reorganized Debtors may pursue such Causes of Action, as appropriate, in the 

Reorganized Debtors’ sole discretion. No Entity may rely on the absence of a 

specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to 

any Cause of Action against it as any indication that the Debtors or the Reorganized 

Debtors will not pursue any and all available Causes of Action against it. The 

Debtors or the Reorganized Debtors, as applicable, expressly reserve all rights to 

prosecute any and all Causes of Action against any Entity, except as otherwise 

expressly provided in the Plan. Unless any Causes of Action against an Entity are 

expressly waived, relinquished, exculpated, released, compromised, or settled under 

the Plan or pursuant to a Bankruptcy Court order, the Debtors or Reorganized 

Debtors, as applicable, expressly reserve all Causes of Action for later adjudication, 

and, therefore, no preclusion doctrine, including the doctrines of res judicata, 

collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or 

otherwise), or laches, shall apply to such Causes of Action upon, after, or as a 

consequence of the Confirmation or Consummation.

In accordance with section 1123(b)(3) of the Bankruptcy Code, except as otherwise 

provided herein, any Causes of Action that a Debtor may hold against any Entity shall 

vest in the Reorganized Debtors. The applicable Reorganized Debtors, through their 

authorized agents or representatives, shall retain and may exclusively enforce any and 

all such Causes of Action. The Reorganized Debtors shall have the exclusive right, 

authority, and discretion to determine and to initiate, file, prosecute, enforce, 

abandon, settle, compromise, release, withdraw, or litigate to judgment any such 

Causes of Action, and to decline to do any of the foregoing without the consent or 

approval of any third party or further notice to or action, order, or approval of the 

Bankruptcy Court. 

Notwithstanding and without limiting the generality of Article IV.M of the Plan, the 

following Exhibit E(i) through Exhibit E(vii) (each of which is attached hereto) include specific 

types of Causes of Actions expressly preserved by the Debtors and the Reorganized Debtors. 

For the avoidance of doubt, the specific types of Causes of Action listed in the following exhibits 

 

1 Capitalized terms used but undefined herein shall have the meanings ascribed to them in the First Amended 

Joint Chapter 11 Plan of Reorganization of the Gymboree Corporation and Its Debtor Affiliates 

[Docket No. 447] (as amended from time to time, the “Plan”).

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2

are indicative, but are in no way exclusive, of the causes of action retained in connection with the 

Plan.

The Debtors reserve all rights to amend, revise, or supplement this Exhibit E to the Plan 

Supplement, and any of the documents and designations contained herein, at any time before the 

Effective Date of the Plan, or any such other date as may be provided for by the Plan or by order 

of the Bankruptcy Court; provided that any such amendment, revision, or supplement shall be 

subject to the consent of the Required Consenting Creditors.

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EXHIBIT E(ii)

Claims Related to Deposits, Adequate Assurance Postings, and Other Collateral Postings

Unless otherwise released by the Plan, the Debtors expressly reserve all Causes of Action 

based in whole or in part upon any and all postings of a security deposit, adequate assurance 

payment, or any other type of deposit or collateral, regardless of whether such posting of security 

deposit, adequate assurance payment, or other type of deposit or collateral is specifically 

identified herein. Without limiting the generality of the foregoing, the Debtors expressly reserve 

all Causes of Action against the Entities identified in Exhibit E(ii) attached hereto.

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

ADOBE SYSTEMS 

INCORPORATED

75 REMITTANCE DRIVE

SUITE 1025

CHICAGO, IL 60675-1025

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #381 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #419 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #499 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #5068 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #5093 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #594 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #607 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6086 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6087 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6242 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

AMEREN MISSOURI - #6275 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #69 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #925 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMERICAN EXPRESS ATT JUNE CONRAD

50-B PENINSULA CENTER BLVD., PMB 

35

ROLLING HILLS, CA 90274

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APPLIED COMPUTER SOLUTIONS PO BOX 101721

PASADENA, CA 91189-1721

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APTOS PO BOX 417411

BOSTON, MA 02241-7411

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APTOS CANADA INC. C/O T60167U

PO BOX 66512

CHICAGO, IL 60666-0512

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AT&T - STORE #912 PO BOX 5082

CAROL STREAM, IL 60197-5082

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AT&T MOBILITY 1355 W. UNIVERSITY

MESA, AZ 85201

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AUTOMIC SOFTWARE INC P.O. BOX 202587

DALLAS, TX 75320

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AZUL SYSTEMS, INC. 1600 PLYMOUTH STREET

MOUNTAIN VIEW, CA 94043

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

BARE ESCENTUALS BEAUTY INC. 900 THIRD AVENUE, 28TH FLOOR

NEW YORK, NY 10022

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BMC SOFTWARE INC. PO BOX 301165

DALLAS, TX 75303-1165

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BRAINTREE ELECTRIC LIGHT 

DEPT. - #6118

150 POTTER RD.

BRAINTREE, MA 02184

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BUSINESS LICENSES LLC 21 ROBERT PITT DR

SUITE 310

MONSEY, NY 10952

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CARBON BLACK DEPT. 3508

PO BOX 123508

DALLAS, TX 75312-3508

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CDW DIRECT, LLC PO BOX 75723

CHICAGO, IL 60675-5723

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CITY OF SUGARLAND - #6341 BILL PAYMENT CENTER

2700 TOWN CENTER BLVD. N

SUGAR LAND, TX 77479

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CITY WATER & LIGHT - STORE 

#6240

PO BOX 1289

JONESBORO, AR 72403-1289

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CLOUD ANALYTICS , LLC 2 PETERS CANYON,

STE #200,

IRVINE, CA 92606

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CONVENTUS CORPORATION 516 N. OGDEN AVE

STE 115

CHICAGO, IL 60642

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CORPTAX, LLC PO BOX 35158

NEWARK, NJ 07193-5158

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

CYCLOTRON INC. 355 1ST STREET

S1008

SAN FRANCISCO, CA 94105

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DATA-MAIL, INC. 240 HARTFORD AVENUE

NEWINGTON, CT 06111

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DEMANDWARE, INC. 5 WALL STREET

BURLINGTON, MA 01803

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#1758

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#1773

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#2806

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5014

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5028

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#511

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5138

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#6073

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

DOMINION VIRGINIA POWER -

#6106

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#6322

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

564

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DYNATRACE LLC PO BOX 74008118

CHICAGO, IL 60674-8118

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

E&Y DEPT. 6793

LOS ANGELES, CA 90084-6793

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EGAIN COMMUNICATIONS 

CORP

DEPT CH 17070

PALATINE, IL 60055-7070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EMAGINED SECURITY, INC 2816 SAN SIMEON WY

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ENERGY WORKS LANCASTER -

STORE #199 - PARK CITY, PA

P.O. BOX 37290

BALTIMORE, MD 21297-3290

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ENTIT SOFTWARE LLC PO BOX 936224

ATLANTA, GA 31193-6224

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EUROSORT, INC. 55 NEW PLANT COURT

OWINGS MILLS, MD 21117

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EXPERIAN MARKETING 

SOLUTIONS INC

PO BOX 881971

LOS ANGELES, CA 90088-1971

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

FLORIDA POWER & LIGHT -

STORE #2840

P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHT -

STORE 916

P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 1770P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 2141P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 5142P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 5171P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FORESEE DEPT CH 19245

PALATINE, IL 60055-9245

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

GALLAGHER BASSETT SERVICES 15763 COLLECTIONS CENTER DR

CHICAGO, IL 60693

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

GEORGIA POWER - #5164 96 ANNEX

ATLANTA, GA 30396-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

HILCO 25285 NETWORK PLACE

CHICAGO, IL 60673-1252

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

HINGHAM MUNICIPAL LIGHTING 

PLANT - STORE #616

308 CUSHING STREET

HINGHAM, MA 02043-3709

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 114 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

HOEFLER & CO. 611 BROADWAY

ROOM 725

NEW YORK, NY 10012-2608

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

IBM CORPORATION P.O. BOX 61000, DEPT. 1896

SAN FRANCISCO, CA 94161-1896

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

IMPERVA 3400 BRIDGE PKWY

STE 200

REDWOOD SHORES, CA 94065

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

INCOMM 250 WILLIAMS ST NW

ATLANTA, GA 30303

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JAPS-OLSON COMPANY 7500 EXCELSIOR BLVD

ST. LOUIS PARK, MN 55426

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JDA - SW LICENSE WORLD HEADQUARTERS

14400 NORTH 87TH STREET

SCOTTSDALE, AZ 85260-3649

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JDA SOFTWARE INC WORLD HEADQUARTERS

14400 NORTH 87TH STREET

SCOTTSDALE, AZ 85260-3649

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KEWILL INC PO BOX 842467

BOSTON, MA 02284-2467

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KOVARUS, INC PO BOX 396039

SAN FRANCISCO, CA 94139-6039

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KPMG 1 STOKES PLACE

ST. STEPHEN'S GREEN

DUBLIN, 2

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

LAUREL WELLS INC 14 SOUTH STREET

CENTER MORICHES, NY 11934

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 115 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

LI & FUNG LIFUNG TOWER

888 CHEUNG SHA WAN ROAD

KOWLOON, HONG KONG 

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

MICRO STRATEGY SERVICES 

CORP.

P.O. BOX 409671

ATLANTA, GA 30384-9671

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

MOMENTIS SYSTEMS 75 QUEEN ST, SUITE 2300

MONTREAL, H3C2N6

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

NCR CORPORATION PO BOX 71540

SAN JUAN, 00936-8640

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

NICOR GAS - STORE #2844 BILL PAYMENT CENTER

PO BOX 1630

AURORA, IL 60507-1630

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

OPTIV SECURITY INC. PO BOX 28216 NETWORK PLACE

CHICAGO, IL 60673-1282

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ORACLE AMERICA, INC BEA SYSTEMS, INC

7074 COLLECTION CENTER DRIVE

CHICAGO, IL 60693

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PALMETTO UTILITIES INC. -

STORE 6164

1713 SUITE A WOODCREEK FARMS 

ROAD

ELGIN, S. CAROLINA 29045-8755

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PERFORCE SOFTWARE FILE NO. 73862

P.O. BOX 60000

SAN FRANCISCO, CA 94160-3862

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PG&E - #5951-DIXON 275 INDUSTRIAL RD

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PG&E - VARIOUS STORES 275 INDUSTRIAL RD

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 116 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

RESOLVE 2302 MARTIN STREET

SUITE 225

IRVINE, CA 92612

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SALESFORCE.COM PO BOX 203141

DALLAS, TX 75320-3141

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SALESFORCE.COM INC PO BOX 203141

DALLAS, TX 75320-3141

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SAP AMERICA, INC 3999 WEST CHESTER PIKE

NEWTON SQUARE, PA 19073

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SDI INDUSTRIES INC 13000 PIERCE ST.

PACOIMA, CA 91331

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SERVICENOW INC 4810 EASTGATE MALL

SAN DIEGO, CA 92121

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SHI INTERNATIONAL CORP P.O. BOX 952121

DALLAS, TX 75395-2121

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SIRIUS COMPUTER SOLUTIONS P.O. BOX 224968

DALLAS, TX 75222-4968

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SOFTWAREONE 20875 CROSSROADS CIRCLE

SUITE 1

WAUKESHA, WI 53186

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SOUTHERN CALIFORNIA EDISON 

- VARIOUS STORES IN SO CAL

P.O. BOX 600

ROSEMEAD, CA 91771-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SOVOS COMPLIANCE 

(PREVIOUSLY TAXWARE)

PO BOX 347977

PITTSBURGH, MA 15251-4977

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 117 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

SPLASH BI 3079 PEACHTREE INDUSTRIAL BLVD

DULUTH, GA 30079

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TAX CREDIT COMPANY 6255 SUNSET BLVD

SUITE 2200

LOS ANGELES, CA 90028

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

THE SEGERDAHL CORPORATION 9279 PAYSPHERE CIRCLE

CHICAGO, IL 60674

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

THOMSON REUTER ( TAX & 

ACCOUNTING) INC

P.O. BOX 6016

CAROL STREAM, IL 60197-6016

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TRINTECH 15851 DALLAS PARKWAY

SUITE 900

ADDISION, TX 75001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TRIPWIRE, INC 75 REMITTANCE DR

SUITE 3017

CHICAGO, IL 60675-3017

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERACODE INC DEPT CH 16573

PALATINE, IL 60055-6573

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERIFONE INC LOCKBOX #774060

4060 SOLUTIONS CENTER

CHICAGO, IL 60677

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERISK CRIME ANALYTICS 

(ASPECT)

PO BOX 27508

NEW YORK, NY 10087-7508

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

WORKING MACHINES 

CORPORATION

2170 DWIGHT WAY

BERKELEY, CA 94704

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ZENSAR TECHNOLOGIES 1415 W 22ND STREET

SUITE #925

OAK BROOK, IL 60523

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 118 of 272
2

EXHIBIT E (a)

Comparison of List of Retained Causes of Action

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 119 of 272
2

EXHIBIT E(ii)

Claims Related to Deposits, Adequate Assurance Postings, and Other Collateral Postings

Unless otherwise released by the Plan, the Debtors expressly reserve all Causes of Action 

based in whole or in part upon any and all postings of a security deposit, adequate assurance 

payment, or any other type of deposit or collateral, regardless of whether such posting of security 

deposit, adequate assurance payment, or other type of deposit or collateral is specifically 

identified herein. Without limiting the generality of the foregoing, the Debtors expressly reserve 

all Causes of Action against the Entities identified in Exhibit E(ii) attached hereto.

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 120 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

ADOBE SYSTEMS 

INCORPORATED

75 REMITTANCE DRIVE

SUITE 1025

CHICAGO, IL 60675-1025

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #381 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #419 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #499 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #5068 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #5093 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #594 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #607 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6086 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6087 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #6242 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 121 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

AMEREN MISSOURI - #6275 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #69 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMEREN MISSOURI - #925 P.O. BOX 66301

ST. LOUIS, MO 63166-6301

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AMERICAN EXPRESS ATT JUNE CONRAD

50-B PENINSULA CENTER BLVD., PMB 

35

ROLLING HILLS, CA 90274

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APPLIED COMPUTER SOLUTIONS PO BOX 101721

PASADENA, CA 91189-1721

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APTOS PO BOX 417411

BOSTON, MA 02241-7411

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

APTOS CANADA INC. C/O T60167U

PO BOX 66512

CHICAGO, IL 60666-0512

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AT&T - STORE #912 PO BOX 5082

CAROL STREAM, IL 60197-5082

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AT&T MOBILITY 1355 W. UNIVERSITY

MESA, AZ 85201

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AUTOMIC SOFTWARE INC P.O. BOX 202587

DALLAS, TX 75320

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

AZUL SYSTEMS, INC. 1600 PLYMOUTH STREET

MOUNTAIN VIEW, CA 94043

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 122 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

BANK OF AMERICA RUSSELL COURT

ST STEPHENS GREEN

DUBLIN 2, 12345

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BARE ESCENTUALS BEAUTY INC. 900 THIRD AVENUE, 28TH FLOOR

NEW YORK, NY 10022

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BMC SOFTWARE INC. PO BOX 301165

DALLAS, TX 75303-1165

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BRAINTREE ELECTRIC LIGHT 

DEPT. - #6118

150 POTTER RD.

BRAINTREE, MA 02184

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

BUSINESS LICENSES LLC 21 ROBERT PITT DR

SUITE 310

MONSEY, NY 10952

CLAIMS RELATED TO DEPOSITS,

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CARBON BLACK DEPT. 3508

PO BOX 123508

DALLAS, TX 75312-3508

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CDW DIRECT, LLC PO BOX 75723

CHICAGO, IL 60675-5723

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CITY OF SUGARLAND - #6341 BILL PAYMENT CENTER

2700 TOWN CENTER BLVD. N

SUGAR LAND, TX 77479

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CITY WATER & LIGHT - STORE 

#6240

PO BOX 1289

JONESBORO, AR 72403-1289

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CLOUD ANALYTICS , LLC 2 PETERS CANYON,

STE #200,

IRVINE, CA 92606

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CONVENTUS CORPORATION 516 N. OGDEN AVE

STE 115

CHICAGO, IL 60642

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 123 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

CORPTAX, LLC PO BOX 35158

NEWARK, NJ 07193-5158

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

CYCLOTRON INC. 355 1ST STREET

S1008

SAN FRANCISCO, CA 94105

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DATA-MAIL, INC. 240 HARTFORD AVENUE

NEWINGTON, CT 06111

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DEMANDWARE, INC. 5 WALL STREET

BURLINGTON, MA 01803

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#1758

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#1773

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#2806

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5014

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5028

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#511

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#5138

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 124 of 272
The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

DOMINION VIRGINIA POWER -

#6073

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#6106

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

#6322

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DOMINION VIRGINIA POWER -

564

PO BOX 26543

RICHMOND, VA 23290-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

DYNATRACE LLC PO BOX 74008118

CHICAGO, IL 60674-8118

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

E&Y DEPT. 6793

LOS ANGELES, CA 90084-6793

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EGAIN COMMUNICATIONS 

CORP

DEPT CH 17070

PALATINE, IL 60055-7070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EMAGINED SECURITY, INC 2816 SAN SIMEON WY

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ENERGY WORKS LANCASTER -

STORE #199 - PARK CITY, PA

P.O. BOX 37290

BALTIMORE, MD 21297-3290

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ENTIT SOFTWARE LLC PO BOX 936224

ATLANTA, GA 31193-6224

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

EUROSORT, INC. 55 NEW PLANT COURT

OWINGS MILLS, MD 21117

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

EXPERIAN MARKETING 

SOLUTIONS INC

PO BOX 881971

LOS ANGELES, CA 90088-1971

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHT -

STORE #2840

P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHT -

STORE 916

P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 1770P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 2141P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 5142P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FLORIDA POWER & LIGHTSTORE 5171P.O. BOX 821407

S FLORIDA, FL 33082-1407

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

FORESEE DEPT CH 19245

PALATINE, IL 60055-9245

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

GALLAGHER BASSETT SERVICES 15763 COLLECTIONS CENTER DR

CHICAGO, IL 60693

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

GEORGIA POWER - #5164 96 ANNEX

ATLANTA, GA 30396-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

HILCO 25285 NETWORK PLACE

CHICAGO, IL 60673-1252

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

HINGHAM MUNICIPAL LIGHTING 

PLANT - STORE #616

308 CUSHING STREET

HINGHAM, MA 02043-3709

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

HOEFLER & CO. 611 BROADWAY

ROOM 725

NEW YORK, NY 10012-2608

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

IBM CORPORATION P.O. BOX 61000, DEPT. 1896

SAN FRANCISCO, CA 94161-1896

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

IMPERVA 3400 BRIDGE PKWY

STE 200

REDWOOD SHORES, CA 94065

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

INCOMM 250 WILLIAMS ST NW

ATLANTA, GA 30303

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JAPS-OLSON COMPANY 7500 EXCELSIOR BLVD

ST. LOUIS PARK, MN 55426

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JDA - SW LICENSE WORLD HEADQUARTERS

14400 NORTH 87TH STREET

SCOTTSDALE, AZ 85260-3649

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

JDA SOFTWARE INC WORLD HEADQUARTERS

14400 NORTH 87TH STREET

SCOTTSDALE, AZ 85260-3649

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KEWILL INC PO BOX 842467

BOSTON, MA 02284-2467

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KOVARUS, INC PO BOX 396039

SAN FRANCISCO, CA 94139-6039

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

KPMG 1 STOKES PLACE

ST. STEPHEN'S GREEN

DUBLIN, 2

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

LAUREL WELLS INC 14 SOUTH STREET

CENTER MORICHES, NY 11934

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

LI & FUNG LIFUNG TOWER

888 CHEUNG SHA WAN ROAD

KOWLOON, HONG KONG 

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

MICRO STRATEGY SERVICES 

CORP.

P.O. BOX 409671

ATLANTA, GA 30384-9671

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

MOMENTIS SYSTEMS 75 QUEEN ST, SUITE 2300

MONTREAL, H3C2N6

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

NCR CORPORATION PO BOX 71540

SAN JUAN, 00936-8640

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

NICOR GAS - STORE #2844 BILL PAYMENT CENTER

PO BOX 1630

AURORA, IL 60507-1630

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

OPTIV SECURITY INC. PO BOX 28216 NETWORK PLACE

CHICAGO, IL 60673-1282

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

ORACLE AMERICA, INC BEA SYSTEMS, INC

7074 COLLECTION CENTER DRIVE

CHICAGO, IL 60693

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PALMETTO UTILITIES INC. -

STORE 6164

1713 SUITE A WOODCREEK FARMS 

ROAD

ELGIN, S. CAROLINA 29045-8755

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PERFORCE SOFTWARE FILE NO. 73862

P.O. BOX 60000

SAN FRANCISCO, CA 94160-3862

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

PG&E - #5951-DIXON 275 INDUSTRIAL RD

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

PG&E - VARIOUS STORES 275 INDUSTRIAL RD

SAN CARLOS, CA 94070

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

RESOLVE 2302 MARTIN STREET

SUITE 225

IRVINE, CA 92612

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SALESFORCE.COM PO BOX 203141

DALLAS, TX 75320-3141

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SALESFORCE.COM INC PO BOX 203141

DALLAS, TX 75320-3141

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SAP AMERICA, INC 3999 WEST CHESTER PIKE

NEWTON SQUARE, PA 19073

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SDI INDUSTRIES INC 13000 PIERCE ST.

PACOIMA, CA 91331

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SERVICENOW INC 4810 EASTGATE MALL

SAN DIEGO, CA 92121

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SHI INTERNATIONAL CORP P.O. BOX 952121

DALLAS, TX 75395-2121

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SIRIUS COMPUTER SOLUTIONS P.O. BOX 224968

DALLAS, TX 75222-4968

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SOFTWAREONE 20875 CROSSROADS CIRCLE

SUITE 1

WAUKESHA, WI 53186

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SOUTHERN CALIFORNIA EDISON 

- VARIOUS STORES IN SO CAL

P.O. BOX 600

ROSEMEAD, CA 91771-0001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

SOVOS COMPLIANCE 

(PREVIOUSLY TAXWARE)

PO BOX 347977

PITTSBURGH, MA 15251-4977

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

SPLASH BI 3079 PEACHTREE INDUSTRIAL BLVD

DULUTH, GA 30079

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TAX CREDIT COMPANY 6255 SUNSET BLVD

SUITE 2200

LOS ANGELES, CA 90028

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

THE SEGERDAHL CORPORATION 9279 PAYSPHERE CIRCLE

CHICAGO, IL 60674

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

THOMSON REUTER ( TAX & 

ACCOUNTING) INC

P.O. BOX 6016

CAROL STREAM, IL 60197-6016

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TRINTECH 15851 DALLAS PARKWAY

SUITE 900

ADDISION, TX 75001

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

TRIPWIRE, INC 75 REMITTANCE DR

SUITE 3017

CHICAGO, IL 60675-3017

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERACODE INC DEPT CH 16573

PALATINE, IL 60055-6573

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERIFONE INC LOCKBOX #774060

4060 SOLUTIONS CENTER

CHICAGO, IL 60677

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

VERISK CRIME ANALYTICS 

(ASPECT)

PO BOX 27508

NEW YORK, NY 10087-7508

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

WORKING MACHINES 

CORPORATION

2170 DWIGHT WAY

BERKELEY, CA 94704

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

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The Gymboree Corporation, et al.,

Retained Causes of Action

Exhibit E(ii) Schedule

PARTY/CASE ADDRESS NATURE

ZENSAR TECHNOLOGIES 1415 W 22ND STREET

SUITE #925

OAK BROOK, IL 60523

CLAIMS RELATED TO DEPOSITS, 

ADEQUATE ASSURANCE 

POSTINGS, AND OTHER 

COLLATERAL POSTINGS

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EXHIBIT F

New Stockholders’ Agreement

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Milbank Draft

8/31/17

#4834-9648-4940

STOCKHOLDERS AGREEMENT

BY AND AMONG

GIRAFFE NEW HOLDING CO., INC.

AND

THE STOCKHOLDERS (AS DEFINED HEREIN)

DATED AS OF [●], 2017

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i

TABLE OF CONTENTS

Page

ARTICLE I

STOCKHOLDERS

Section 1.1 Stockholders............................................................................................................ 1

ARTICLE II

BOARD OF DIRECTORS; MANAGEMENT AND CONTROL OF BUSINESS

Section 2.1 Board of Directors................................................................................................... 2

Section 2.2 Restrictions on Authority of the Board................................................................... 4

Section 2.3 Directors’ Non-exclusive Services ......................................................................... 6

Section 2.4 Reimbursement of Expenses................................................................................... 6

ARTICLE III

INFORMATION RIGHTS

Section 3.1 Information Rights of Stockholders; Records Required by the DGCL; 

Right of Inspection.................................................................................................. 6

Section 3.2 Information Rights of the Company ....................................................................... 8

ARTICLE IV

PREEMPTIVE RIGHTS; REGISTRATION RIGHTS

Section 4.1 Preemptive Rights................................................................................................... 9

Section 4.2 Registration Rights................................................................................................ 11

ARTICLE V

MISCELLANEOUS

Section 5.1 Complete Agreement ............................................................................................ 11

Section 5.2 Certain Actions ..................................................................................................... 11

Section 5.3 Governing Law ..................................................................................................... 11

Section 5.4 No Assignment...................................................................................................... 11

Section 5.5 Binding Effect....................................................................................................... 12

Section 5.6 Severability ........................................................................................................... 12

Section 5.7 No Partition........................................................................................................... 12

Section 5.8 Additional Documents and Acts........................................................................... 12

Section 5.9 No Employment Rights......................................................................................... 12

Section 5.10 Amendments; Termination of Equity Rights........................................................ 12

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- ii -

Section 5.11 No Waiver............................................................................................................. 13

Section 5.12 Notices .................................................................................................................. 13

Section 5.13 Consent to Jurisdiction; WAIVER OF JURY TRIAL.......................................... 13

Section 5.14 No Third Party Beneficiary................................................................................... 14

Section 5.15 Confidentiality ...................................................................................................... 14

Section 5.16 Business Opportunities ......................................................................................... 15

Section 5.17 Cumulative Remedies; Specific Performance ...................................................... 16

Section 5.18 Exhibits and Schedules......................................................................................... 16

Section 5.19 Interpretation......................................................................................................... 17

Section 5.20 Termination........................................................................................................... 17

SCHEDULE I COMPETITORS

EXHIBIT A DEFINITIONS

EXHIBIT B CONFIDENTIALITY AGREEMENT

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STOCKHOLDERS AGREEMENT

This Stockholders Agreement (as amended, modified or supplemented from time to time, 

this “Agreement”) is made and entered into as of [●], 2017 (the “Effective Date”) by and among 

Giraffe New Holding Co., Inc., a Delaware corporation (the “Company”), and the Stockholders 

(as defined herein). Capitalized terms used, but not otherwise defined, herein have the meanings 

set forth in Exhibit A attached hereto and made a part hereof by reference.

RECITALS

A. The Company and certain other affiliated debtors (collectively, the “Debtors”) 

filed a plan of reorganization pursuant to Chapter 11 of the United States Bankruptcy Code, on 

June 16, 2017, which was confirmed by the United States Bankruptcy Court for the Eastern 

District of Virginia on [●], 2017 (including all exhibits, schedules and supplements thereto and 

as amended from time to time in accordance with the terms thereof, the “Plan”).

B. The Plan provides that the Company and the Stockholders will enter into a 

stockholders agreement to establish certain arrangements with respect to the Company Common 

Stock, and the Company and Stockholders are entering into this Agreement in furtherance of the 

aforesaid provisions of the Plan.

C. As of the date hereof, the Stockholders hold in the aggregate all of the 

Outstanding Company Common Stock.

D. The Plan provides that this Agreement shall be deemed to be valid, binding and 

enforceable in accordance with its terms, and each Stockholder shall be deemed to be bound 

hereby, in each case without the need for execution of this Agreement by any party hereto other 

than the Company.

E. The parties hereto desire to enter into this Agreement to establish certain 

arrangements with respect to the Company Common Stock and other related corporate matters of 

the Company.

NOW, THEREFORE, in consideration of the mutual covenants and agreements 

hereinafter set forth and other good and valuable consideration, the receipt, adequacy and 

sufficiency of which are hereby acknowledged, the Company and the Stockholders, intending to 

be legally bound, hereby agree as follows:

ARTICLE I

STOCKHOLDERS

Section 1.1 Stockholders. Except for the obligations contained in Section 5.15, a 

Person shall cease to be a Stockholder for all purposes upon the disposition of all of such 

Person’s Company Common Stock.

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- 2 -

ARTICLE II

BOARD OF DIRECTORS; MANAGEMENT AND CONTROL OF BUSINESS

Section 2.1 Board of Directors.

(a) The Board, acting in accordance with the terms of this Agreement, shall have the 

right, power and authority to oversee the business and affairs of the Company and to do all things 

necessary or appropriate to manage the business and affairs of the Company, and the Board is 

hereby authorized to take any action of any kind and to do anything and everything the Board 

deems necessary or appropriate in accordance with the provisions of this Agreement, the 

Company’s Charter Documents and applicable law. At all times, the composition of any board 

of directors or equivalent of any Subsidiary of the Company shall be the same as that of the 

Board.

(b) The Board shall be comprised of seven (7) Directors as follows:

(i) the chief executive officer of the Company (the “Executive Director”), 

who shall initially be Daniel Griesemer;

(ii) for so long as Brigade holds at least the Minimum Designating Ownership,

one (1) Director designated by Brigade (the “Brigade Director”), who shall initially be Matt

Perkal;

(iii) for so long as Oppenheimer holds at least the Minimum Designating 

Ownership, one (1) Director designated by Oppenheimer (the “Oppenheimer Director”), who 

shall initially be Brian Hickey;

(iv) for so long as Searchlight holds at least the Minimum Designating 

Ownership, one (1) Director designated by Searchlight (the “Searchlight Director” and together 

with the Brigade Director and the Oppenheimer Director, the “Investor Directors”), who shall 

initially be Eric Sondag; and

(v) three (3) Directors elected by the Stockholders in accordance with Section 

2.1(c)(iii) and the Company’s Charter Documents (the “At-Large Directors”), who shall initially 

be Ron Beegle of Carriage House Capital Advisors, LLC, Shaz Kahng and [●].

1

(c) Commencing as of the Effective Date, the Board shall be divided, with respect to 

the time for which the Directors shall severally hold office, into three (3) classes as follows: 

(i) the Executive Director and the Oppenheimer Director (or any replacement thereof selected in 

accordance with Section 2.1(f) and the Company’s Charter Documents) shall serve in Class I 

with an initial term expiring at the 2018 annual meeting of the Stockholders in accordance with 

the Company’s Charter Documents (the “Class I Directors”), (ii) the Brigade Director and the 

Searchlight Director (or any replacement thereof selected in accordance with accordance with 

Section 2.1(f) and the Company’s Charter Documents) shall serve in Class II with an initial term 

 

1 Note to Draft: Remaining At-Large Director to be designated by the Required Consenting Creditors prior to 

emergence.

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expiring at the 2019 annual meeting of the Stockholders in accordance with the Company’s 

Charter Documents (the “Class II Directors”), and (iii) the At-Large Directors (or any 

replacement thereof selected in accordance Section 2.1(f) and the Company’s Charter 

Documents) shall serve in Class III with an initial term expiring at the 2020 annual meeting of 

the Stockholders in accordance with the Company’s Charter Documents (the “Class III 

Directors”). Commencing with the 2018 annual meeting of the Stockholders (in accordance 

with the Company’s Charter Documents), each Director that is elected by the Stockholders shall 

be elected for a three (3)-year term.

(d) The Company and the Stockholders shall take all Necessary Action to ensure that 

(i) subject to the applicable Board Designator holding at least the Minimum Designating 

Ownership, each Investor Director designated by the applicable Board Designator shall hold 

office until the earlier to occur of (x) such Investor Director’s death, disability, or 

disqualification and (y) such Investor Director’s retirement, resignation, replacement or removal 

from the Board in accordance with Section 2.1(f) and the Company’s Charter Documents and 

(ii) each At-Large Director shall hold office until the annual meeting of the Stockholders to elect 

the Class III Directors in accordance with Section 2.1(c)(iii) and the Company’s Charter 

Documents or such shorter period resulting from any such At-Large Director’s (x) death, 

disability or disqualification or (y) retirement, resignation, replacement or removal.

(e) If at any time (i) Brigade holds less than the Minimum Designating Ownership, 

(A) the Brigade Director shall serve as a Class II Director until the expiration of the then-current 

term of the Class II Directors or until such Director’s earlier death, disability, disqualification, 

retirement, resignation or removal, (B) at the subsequent election of Class II Directors, a Director 

(who may be the Brigade Director) shall be elected by the Stockholders in accordance with the 

Company’s Charter Documents to fill the seat of the Brigade Director (such Director who 

initially replaces the Brigade Director pursuant to this Section 2.1(e) or any such Class II

Director thereafter, the “Replacement Brigade Director”), and (C) Brigade shall no longer be 

entitled to designate the Brigade Director, (ii) Oppenheimer holds less than the Minimum 

Designating Ownership, (A) the Oppenheimer Director shall serve as a Class I Director until the 

expiration of the then-current term of the Class I Directors or until such Director’s earlier death, 

disability, disqualification, retirement, resignation or removal, (B) at the subsequent election of 

Class I Directors, a Director (who may be the Oppenheimer Director) shall be elected by the 

Stockholders in accordance with the Company’s Charter Documents to fill the seat of the 

Oppenheimer Director (such Director who initially replaces the Oppenheimer Director pursuant 

to this Section 2.1(e) or any such Class I Director thereafter, the “Replacement Oppenheimer 

Director”), and (C) Oppenheimer shall no longer be entitled to designate the Oppenheimer

Director, or (iii) Searchlight holds less than the Minimum Designating Ownership, (A) the 

Searchlight Director shall serve as a Class II Director until the expiration of the then-current term 

of the Class II Directors or until such Director’s earlier death, disability, disqualification, 

retirement, resignation or removal, (B) at the subsequent election of Class II Directors, a Director 

(who may be the Searchlight Director) shall be elected by the Stockholders in accordance with 

the Company’s Charter Documents to fill the seat of the Searchlight Director (such Director who 

initially replaces the Searchlight Director pursuant to this Section 2.1(e) or any such Class II

Director thereafter, together with the Replacement Brigade Director and the Replacement 

Oppenheimer Director, the “Replacement Directors”), and (C) Searchlight shall no longer be 

entitled to designate the Searchlight Director.

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- 4 -

(f) Subject to the applicable Board Designator holding at least the Minimum 

Designating Ownership, (i) each Investor Director shall serve solely at the discretion of the 

Board Designator that designated such Investor Director and (ii) any Investor Director may be 

removed (which removal may occur at any time with or without cause) and replaced only by the 

Board Designator that designated such Director and any vacancy on the Board resulting from the 

death, disability, retirement, resignation, disqualification or removal of such Investor Director 

shall be filled only by such Board Designator, and the Company and the Stockholders shall take 

all Necessary Action as may be required to facilitate and implement the immediate appointment 

of such replacement Investor Director to the Board. If the chief executive officer of the 

Company is removed or resigns or is otherwise replaced as an officer of the Company, such 

person shall automatically, and without any action by the Board or the Stockholders, cease to be 

the Executive Director, and the Company’s successor chief executive officer appointed pursuant 

to the Company’s Charter Documents shall automatically become the Executive Director 

pursuant to Section 2.1(b)(i) and the Company and the Stockholders shall take all Necessary 

Action to ensure that such successor chief executive officer is elected as the Executive Director 

at the subsequent election of Class I Directors. The At-Large Directors and the Replacement 

Directors may be removed and replaced in accordance with the Company’s Charter Documents, 

and any vacancy on the Board resulting from the death, disability, retirement, resignation, 

disqualification or removal of any such Director shall be filled by the affirmative vote of a 

majority the Directors then serving on the Board.

(g) A Director may resign from the Board at any time upon delivery of written notice 

to the Board and the Stockholder(s) that designated or elected him or her, and any such vacancy 

shall be filled in accordance with Section 2.1(f).

(h) The size and composition of the committees of the Board and the committees of 

the boards of directors or equivalent governing bodies of the Company’s Subsidiaries shall be as 

determined by the Board from time to time; provided, that each Investor Director shall have the 

right to serve on any such committee of the Board (or any such committee of the boards of 

directors or equivalent governing bodies of the Company’s Subsidiaries) so long as the 

applicable Board Designator owns at least the Minimum Designating Ownership.

Section 2.2 Restrictions on Authority of the Board.

(a) Notwithstanding anything to the contrary in this Agreement, none of the 

following actions may be taken by the Company, directly or indirectly (and the Company shall 

cause its Subsidiaries to refrain from taking such actions) without a Stockholder Approval:

(i) any merger, consolidation, reorganization or equity recapitalization of the 

Company or its Subsidiaries (other than mergers or consolidations of a wholly owned Subsidiary 

of the Company with another wholly owned Subsidiary of the Company or with the Company);

(ii) any sale, assignment or other transfer of all or substantially all of the 

assets or properties of the Company and its Subsidiaries (in each case, on a consolidated basis) 

other than (x) sales, assignments and transfers between a wholly owned Subsidiary of the 

Company and the Company or another wholly owned Subsidiary of the Company or (y) a pledge 

of assets of the Company and its Subsidiaries in accordance with the exit term loan facility 

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provided by the DIP Term Loan Lenders (as defined in the Plan) to be entered into by the 

Debtors or any of their successors on the terms set forth in the Exit Term Loan Facility Term 

Sheet attached as Annex IV to that certain Restructuring Support Agreement, dated June 11, 

2017, by and among the Debtors, the Sponsor and the Consenting Creditors (each as defined in 

the Plan);

(iii) any liquidation, dissolution or winding up, bankruptcy or consenting to the 

entry of a decree or order appointing a trustee, custodian, receiver, liquidator, assignee or similar 

official, in each case, of the Company or any material Subsidiary of the Company, or any action

that would cause the foregoing;

(iv) any amendment, modification or waiver of the Charter Documents of the 

Company or any of the Company’s material Subsidiaries other than (A) to correct any 

typographical or similar ministerial error, (B) to delete or add any provision required to be so 

deleted or added by any applicable law, (C) to cure any ambiguity or to correct or supplement 

any provision which may be inconsistent with any provision herein, and (D) to make any 

immaterial amendment or modification that is deemed necessary or appropriate by the Board, in 

each case set forth in clauses (A) through (D) above, which does not adversely affect the rights 

or obligations of any Stockholder, in its capacity as a Stockholder; provided that any such 

amendment that reasonably would be expected to disproportionately and adversely affect any 

Stockholder, in its capacity as a Stockholder, as compared to the other Stockholders, shall also 

require the prior written consent of each Stockholder so affected;

(v) engagement in any material new line of business substantially unrelated to 

(A) any business or activity of the Company or any of its Subsidiaries currently conducted as of 

the date hereof or (B) any business or activity that is reasonably similar thereto or a reasonable 

extension, development or expansion thereof, or is complementary, incidental, ancillary or 

related thereto;

(vi) implementation of a new management Equity Incentive Plan or similar 

arrangement which could result, when combined with all other Equity Incentive Plans, in the 

aggregate issuance of more than five percent (5%) of the Outstanding Company Common Stock;

or

(vii) entry into any agreement, commitment or arrangement to effect, or 

requiring the Company or any of its Subsidiaries to effect, any of the foregoing.

(b) Affiliate Transactions. Excluding transactions in accordance with Section 4.1, 

including Section 4.1(e), the Company shall not, and shall cause each of its Subsidiaries not to, 

enter into, modify (including by waiver) or terminate any transaction or series of related 

transactions, or agreement, with any holder of Company Common Stock that (together with its 

Affiliates) holds at least five percent (5%) of the Outstanding Company Common Stock or with 

any Director or officer of the Company, or with any Affiliate of any of the foregoing (any such 

transaction or series of related transactions or agreements, an “Affiliate Transaction”), unless 

(i) a majority of the Directors then serving on the Board who are not party to, or affiliated with 

such holder, or Affiliate thereof, that is a party to, such Affiliate Transaction (such majority, a 

“Majority of Disinterested Directors”) reasonably determines that such Affiliate Transaction is 

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on terms that are at least as favorable to the Company and its Subsidiaries as could reasonably be 

obtained from an independent third party, (ii) such Affiliate Transaction is approved by a 

Majority of Disinterested Directors, and (iii) if and to the extent that an Affiliate Transaction 

involves the aggregate payment to or by the Company and its Subsidiaries equal to or in excess 

of five million dollars ($5,000,000), in addition to meeting the requirements in clauses (i) and 

(ii), either (x) the Company has obtained an opinion from a nationally recognized accounting or 

investment banking firm (to be selected and paid by the Company) that is independent, with no 

direct or indirect financial interest in the Company or its Subsidiaries, or in the proposed 

Affiliate Transaction or any other party thereto, that the proposed Affiliate Transaction is fair to 

the Stockholders from a financial point of view or (y) Stockholder Approval is obtained with 

respect to such Affiliate Transaction (disregarding, for such purposes, any holder of Company 

Common Stock, or Affiliate thereof, that is a party to such Affiliate Transaction, and the shares 

of Company Common Stock held by such Persons). Notwithstanding the foregoing or anything 

to the contrary in this Agreement, except as required by applicable law, the Company’s 

performance of its obligations under the Backstop Commitment Agreement or in connection with 

the consummation of the Rights Offerings, in each case in accordance with the Plan, shall not 

require any further consent or approval of the Board or the Stockholders.

Section 2.3 Directors’ Non-exclusive Services. No Director shall be required to 

manage the Company as his or her sole and exclusive function and any Director or Stockholder 

may have other business interests and may engage in other activities in addition to those relating 

to the Company.

Section 2.4 Reimbursement of Expenses. Each Director shall be entitled to 

reimbursement from the Company of all expenses reasonably incurred and paid by such Director 

in connection with such Director’s services as a Director or otherwise incurred for the benefit of, 

or on behalf of, the Company. The Board may establish, from time to time, policies relating to 

expense reimbursement (including the types of expenses, such as retained counsel or other 

advisors, that will be reimbursable), which policies shall treat and apply to each Director (other 

than any employee of the Company serving as a Director) equally.

ARTICLE III

INFORMATION RIGHTS

Section 3.1 Information Rights of Stockholders; Records Required by the DGCL; 

Right of Inspection.

(a) At any time that the Company is not obligated to file reports under Section 13 or 

15(d) of the Exchange Act and does not file reports required by Section 13 or 15(d) of the 

Exchange Act as a voluntary filer, each Stockholder, other than any Stockholder that is a 

Competitor, shall have the right to receive the following information (which right the Company 

may satisfy by providing access to each Stockholder to a confidential website such as Intralinks 

and timely posting such information on such website (which website shall have a system of 

email notification of new postings and may require confirmation by viewers of the site of the 

confidentiality obligations set forth in Section 5.15, a “Secure Site”)), and each Stockholder may 

share and discuss such information (along with any other information provided to Stockholders 

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pursuant to this Agreement and otherwise made available to Stockholders via the Secure Site) 

with its Affiliates, directors, officers, partners, managers, stockholders, employees, investors and 

advisors as well as any bona fide prospective purchaser of Company Common Stock that (x) is 

not a Competitor and (y) has entered into, and delivered to the Company, a confidentiality 

agreement substantially in the form set forth on Exhibit B attached hereto, with such changes as 

may be approved by the Company in its reasonable discretion, regarding the treatment of such 

information (any such Person, a “Permitted Person”) (and for the avoidance of doubt, at its 

election, the Company may share and discuss such information with any prospective purchaser 

of Company Common Stock):

(i) within ninety (90) days of the end of each fiscal year, copies of all annual 

financial statements and similar information of the Company and its Subsidiaries as of the end of 

such fiscal year, which financial statements shall (v) include a comparison to the prior fiscal year 

results; (w) be prepared in accordance with GAAP on a private company basis (for the avoidance 

of doubt, no SAS 100 review or compliance with any other requirement of Regulation S-X under 

the Securities Act shall be required in connection with such financial statements); (x) be audited 

by a nationally recognized accounting firm approved by the Board and accompanied by a report 

and opinion thereon by such accounting firm prepared in accordance with generally accepted 

auditing standards that is not subject to any qualification as to the scope of such audit or with 

respect to accounting principles followed by the Company or any of its Subsidiaries not in 

accordance with GAAP; (y) be accompanied by a management discussion and analysis of 

financial condition and results of operations with respect to such financial statements 

(an “MD&A”); and (z) be certified by the chief financial officer of the Company; and

(ii) for each of the first three (3) fiscal quarters of each fiscal year of the 

Company, copies of all unaudited quarterly financial statements and similar information of the 

Company and its Subsidiaries as of the end of such fiscal quarter, which financial statements 

shall (w) include year-to-date results and a comparison to the corresponding period in the prior 

fiscal year; (x) be prepared in accordance with GAAP on a private company basis (for the 

avoidance of doubt, no SAS 100 review or compliance with any other requirement of Regulation 

S-X under the Securities Act shall be required in connection with such financial statements); 

(y) be accompanied by an MD&A; and (z) be delivered no later than forty-five (45) days 

following the end of each such fiscal quarter.

(b) During the term of the Company’s existence there shall be maintained in the 

Company’s principal office or at the office of the Company’s agents and representatives all 

records required to be kept pursuant to the DGCL, including (whether or not so required) a 

current list of the names, addresses and shares of Company Common Stock held by each of the 

Stockholders (including the dates on which each of the Stockholders became a Stockholder), 

copies of federal, state and local information or income tax returns for each of the Company’s 

tax years, copies of this Agreement and each of the Company’s Charter Documents, including all 

amendments thereto and restatements thereof, and correct and complete books and records of 

account of the Company. Prior to any termination of the Company’s existence, the Company 

shall use all reasonable efforts to ensure that, for a period of six (6) years after any such 

termination, such information, to the extent still in existence and available, may be obtained by a 

Stockholder’s request in writing to a legal advisor or agent of the Company to be designated 

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prior to any such termination, with the cost (as reasonably determined by such legal advisor or 

agent) of accessing and providing such information being borne by the requesting Stockholder.

(c) The Company shall host, and each Stockholder, other than any Stockholder that is 

a Competitor, that (together with its Affiliates) holds at least one percent (1%) of the Outstanding 

Company Common Stock, shall have access to, quarterly conference calls with the Company’s 

chief executive officer and chief financial officer to discuss the status of the Company and its 

business and the business of its Subsidiaries, which calls shall include a reasonable and 

customary question and answer session (each such call, a “Quarterly Call”). Quarterly Calls 

shall be hosted as promptly as reasonably practicable but in any event no later than five (5) 

Business Days after furnishing the annual and quarterly reports in accordance with Section 

3.1(a). Other than any Stockholder that is a Competitor, each Stockholder shall have the right to 

receive from the Company, within ten (10) days after a Quarterly Call, an audio recording of

such Quarterly Call and copies of all materials provided by the Company to the attendees thereof 

in connection with such Quarterly Call (which right the Company may satisfy by providing 

access to each Stockholder to a Secure Site), and each Stockholder may share and discuss such 

information with any Permitted Person (and for the avoidance of doubt, at its election, the 

Company may share and discuss such information with any prospective purchaser of Company 

Common Stock).

(d) On written request stating the purpose, a Stockholder that (together with its 

Affiliates) holds at least one percent (1%) of the Outstanding Company Common Stock may 

make reasonable inquiries of management and examine, at any reasonable time during business 

hours, for any proper purpose reasonably related to such Stockholder’s interest as a Stockholder 

of the Company, and at the Stockholder’s expense, records of the Company and its Subsidiaries; 

provided that the Company may limit access to certain information if the Board reasonably 

deems such information to be competitively sensitive with respect to the Stockholder requesting 

such access or if granting such access could reasonably be expected in the loss or impairment of 

the Company to claim attorney client privilege, work product doctrine, or a similar protective 

privilege or doctrine with respect to the information, or to violate applicable law (provided that 

the Company shall use its reasonable best efforts to allow for such access in a way that would not 

have any of the foregoing effects). Upon written request by any Stockholder made to the 

Company, the Company shall provide or make available to such Stockholder without charge true 

copies of this Agreement, the Company’s Charter Documents, and all amendments thereto and 

restatements thereof, which documents may be provided to such Stockholder by posting them on 

a Secure Site or on EDGAR (as applicable).

Section 3.2 Information Rights of the Company. The Company may from time to 

time, but a Stockholder may be compelled to answer no more frequently than once per calendar 

quarter (unless, with respect to clause (a) of this Section 3.2, required by applicable law), 

reasonably request of any or all Stockholders information (a) needed by the Company to comply 

with applicable law or any contract entered into by the Company or any of its Subsidiaries, 

including any financing arrangements, and/or (b) regarding such Stockholder’s “accredited 

investor” status (within the meaning of Regulation D promulgated under the Securities Act).

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ARTICLE IV

PREEMPTIVE RIGHTS; REGISTRATION RIGHTS

Section 4.1 Preemptive Rights. Any issuance of New Securities by the Company or 

any of its Subsidiaries, other than an issuance of Exempt Securities, shall be subject to the 

following provisions:

(a) Right to Purchase New Securities. Except as otherwise provided in this Section 

4.1 (including Section 4.1(e)), the Company hereby grants to each Stockholder that (i) at the time 

of the relevant issuance, sale or distribution is an “accredited investor” within the meaning of 

Regulation D promulgated under the Securities Act and (ii) together with its Affiliates, holds of 

record as of the Preemptive Offer Record Date (as defined below) at least one percent (1%) of 

the Outstanding Company Common Stock (each such Stockholder, a “Qualified Stockholder”) 

the right to purchase its pro rata share (calculated for purposes of this Section 4.1 as the 

percentage of the Outstanding Company Common Stock so held by all Qualified Stockholders)

of any and all issuances, sales or distributions of New Securities proposed to be made by the 

Company or any of its Subsidiaries as set forth herein.

(b) Issuance Notice. The Company shall give each Qualified Stockholder written 

notice of the Company’s intention to issue or sell New Securities (as applicable, the “Offered 

Securities”) (which notice may be provided by posting the requisite information on a Secure Site

and notifying (or causing notification to be delivered to) each such Qualified Stockholder of such 

posting in writing in accordance with Section 5.12) (the “Issuance Notice”), describing the type 

and terms of the Offered Securities, the price at which such Offered Securities will be issued or 

sold and the general terms upon which the Company proposes to issue or sell such Offered

Securities, including the anticipated date of such issuance, sale or distribution, the general use of 

proceeds thereof, a description of both the business purpose of the offering of such Offered

Securities and the dilutive effects, if any, of such offering, the record date for determining 

Qualified Stockholders, which, if not specified in the Issuance Notice, shall be the date of the 

Issuance Notice (the “Preemptive Offer Record Date”), and such Qualified Stockholder’s pro 

rata share of such Offered Securities. Each Qualified Stockholder shall have ten (10) Business 

Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its 

intention to purchase all or any portion of its pro rata share of the Offered Securities and stating 

therein the quantity of Offered Securities it intends to purchase (each Qualified Stockholder who 

delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.1). Such 

Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the 

quantity of Offered Securities indicated in the Response Notice at the price and upon the terms 

stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell 

or distribute securities for consideration other than all cash, and subject to the limitations on the 

rights set forth in this Section 4.1, the Company shall accept from such Purchaser either non-cash 

consideration that is reasonably comparable to the non-cash consideration proposed by the 

Company or the cash value of such non-cash consideration, in each case as determined in good 

faith by the Board. Any purchase of Offered Securities by a Purchaser pursuant to this Section 

4.1 shall be consummated on or prior to the later of (x) the date on which all other Offered 

Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the 

second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

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(c) Reallotment Right. Each Purchaser shall have the further right to subscribe for all 

or any portion of the Offered Securities not subscribed for by Purchasers pursuant to 

Section 4.1(b) to which it may become entitled to purchase under this Section 4.1(c). The 

Response Notice may set forth an amount of additional Offered Securities (“Reallotment 

Securities”) that such Purchaser would be willing to purchase in the event that there is any 

under-subscription for the entire amount of such Offered Securities. In the event that there is 

such an under-subscription, the Company shall apportion the unsubscribed-for Offered Securities 

to those Purchasers whose Response Notices specified an amount of Reallotment Securities, 

which apportionment shall be made among such specifying Purchasers pro rata based upon the 

number of shares of Offered Securities initially subscribed for by each such specifying Purchaser 

relative to the number of shares of Offered Securities initially subscribed for by all such 

specifying Purchasers pursuant to Section 4.1(b); provided, however, that in no event will any 

such specifying Purchaser be obligated to purchase any amount of Reallotment Securities that is 

greater than the amount of additional Offered Securities that such specifying Purchaser stated 

that it would be willing to purchase in the Response Notice of such specifying Purchaser.

(d) Sale to Other Persons. The Company shall have sixty (60) days from the date of 

the applicable Issuance Notice to consummate an issuance, sale or distribution of any Offered

Securities which the Qualified Stockholders have not elected to purchase pursuant to Section 

4.1(b) to other Persons at a price and on terms and conditions not less favorable to the Company 

than those contained in the Issuance Notice. In the event that the sale of Offered Securities is not 

fully consummated within such sixty (60)-day period, then the Company shall be obligated once 

again to offer the purchase rights set forth in this Section 4.1 before it may subsequently sell such 

Offered Securities (provided that such sixty (60)-day period shall automatically toll, but not for 

longer than one-hundred and eighty (180) days to the extent regulatory approval would be 

required for such Person to acquire such Offered Securities).

(e) Exempt Securities. Notwithstanding the foregoing provisions of this Section 4.1, 

Qualified Stockholders shall not have the right to participate in the issuance, sale or distribution

of any New Securities which are otherwise authorized to be issued in accordance with this 

Agreement (i) if such New Securities were issued as consideration in any merger, consolidation 

or combination with or acquisition of securities or assets of another Person in exchange for New 

Securities, (ii) if made upon conversion or exercise of any rights, convertible securities, options 

or warrants to purchase Company Common Stock or other capital stock of the Company, (iii) if 

made by any Subsidiary of the Company to the Company or any of its direct or indirect wholly 

owned Subsidiaries, (iv) if made as securities which are the subject of a registration statement 

being filed under the Securities Act pursuant to a Qualified IPO, (v) if made to Directors, 

officers, employees or consultants as compensation pursuant to any Equity Incentive Plans or as 

compensation for services rendered or to be rendered to the Company or any of its Subsidiaries 

or otherwise due to his or her status as a service provider to the Company or any of its 

Subsidiaries, (vi) if such New Securities were issued in connection with the Backstop 

Commitment Agreement, or in connection with the consummation of the Rights Offerings in 

accordance with the Plan, (vii) if such New Securities were issued in connection with any joint 

venture, strategic alliance or partnership or similar transaction or arrangement (in each case as 

determined by the Board acting in good faith) or (viii) if such New Securities were issued 

pursuant to any pro rata stock split or stock dividend (the New Securities described in the 

foregoing clauses (i) through (viii), “Exempt Securities”).

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(f) Accelerated Buyer Transactions. Nothing in this Section 4.1 shall prevent the 

Company or its Subsidiaries from issuing or selling to any Person (the “Accelerated Buyer”) any 

New Securities without first complying with the provisions of this Section 4.1; provided that in 

connection with such issuance or sale (i) the Company gives reasonably prompt notice to the 

Qualified Stockholders of such issuance (after such issuance has occurred), which notice shall 

describe in reasonable detail the New Securities purchased by the Accelerated Buyer and the 

purchase price thereof and (ii) the Accelerated Buyer and the Company enable the Qualified 

Stockholders to effectively exercise their respective rights under this Section 4.1 with respect to 

their purchase of their pro rata share of the New Securities issued to the Accelerated Buyer 

within fifteen (15) Business Days after receipt of the notice by the Qualified Stockholder of such 

issuance to the Accelerated Buyer on the terms specified in this Section 4.1. The Preemptive 

Offer Record Date for such issuance shall be the date such New Securities are issued to the 

Accelerated Buyer.

Section 4.2 Registration Rights. The Stockholders shall have the registration rights 

set forth the Registration Rights Agreement.

ARTICLE V

MISCELLANEOUS

Section 5.1 Complete Agreement. This Agreement, the Plan and the other 

agreements expressly referenced in this Agreement and the Plan constitute the complete and 

exclusive statement of agreement among the Stockholders with respect to the subject matter 

hereof. This Agreement supersedes all prior written and oral statements by and among the 

Stockholders or any of them, and except as otherwise specifically contemplated by this 

Agreement, no representation, statement, or condition or warranty not contained in this 

Agreement will be binding on the Stockholders or the Company or have any force or effect 

whatsoever.

Section 5.2 Certain Actions. The Company by its execution hereof acknowledges 

that it has actual notice of the terms of this Agreement, consents hereto and hereby covenants 

with each of the Stockholders that it will at all times during the term of this Agreement be 

governed by the terms and provisions hereof in carrying out its business and affairs and, 

accordingly, shall give or cause to be given such notices, execute or cause to be executed such 

documents and do or cause to be done all such acts, matters and things as may from time to time 

be necessary or required to carry out the terms and intent hereof.

Section 5.3 Governing Law. This Agreement and the rights of the parties hereunder 

will be governed by, interpreted, and enforced in accordance with the laws of the State of 

Delaware, without reference to conflicts of law principles that would require the application of 

the laws of another jurisdiction.

Section 5.4 No Assignment. No party hereto may assign any of its respective rights 

or delegate any of its respective obligations under this Agreement, and any attempted assignment 

or delegation in violation of the foregoing shall be null and void; provided, that Brigade, 

Oppenheimer and/or Searchlight may assign or delegate their respective rights and obligations 

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under this Agreement to their respective Affiliates and funds, clients and accounts managed by 

such Affiliates.

Section 5.5 Binding Effect. Subject to the provisions of this Agreement relating to

transferability or assignment, this Agreement will be binding upon and inure to the benefit of the 

Company and each of the Stockholders, and their respective heirs, devisees, spouses, 

distributees, representatives, successors and permitted assigns. For the avoidance of doubt, no 

joinder to this Agreement shall be required in connection with any permitted Transfer or 

assignment.

Section 5.6 Severability. If any provision of this Agreement is held to be illegal, 

invalid, or unenforceable under any present or future laws applicable to the Company effective 

during the term of this Agreement, such provision will be fully severable; this Agreement will be 

construed and enforced as if such illegal, invalid, or unenforceable provision had never 

comprised a part of this Agreement; and the remaining provisions of this Agreement will remain 

in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision 

or by its severance from this Agreement.

Section 5.7 No Partition. The parties acknowledge that the assets and properties of 

the Company are not and will not be suitable for partition. Thus, each Stockholder (on behalf of 

such Stockholder and their respective successors and assigns) hereby irrevocably waives any and 

all rights that such Stockholder may have to maintain any action for partition of such assets and 

properties, if any.

Section 5.8 Additional Documents and Acts. Each party hereto agrees to execute 

and deliver such additional documents and instruments and to perform such additional acts as 

may be reasonably necessary or appropriate to effectuate, carry out, and perform all of the terms, 

provisions, and conditions of this Agreement and the transactions contemplated hereby.

Section 5.9 No Employment Rights. Nothing in this Agreement shall confer upon 

any Person any right to be employed or to continue employment by the Company or any of its 

Affiliates, or interfere in any manner with any right of the Company or any of its Affiliates to 

terminate such employment at any time.

Section 5.10 Amendments; Termination of Equity Rights.

(a) All amendments to this Agreement will be in writing and subject to receipt of 

Stockholder Approval and approval by any other Stockholders whose approval is required 

pursuant to Section 5.10(b).

(b) Any amendment or other modification that would adversely affect any 

Stockholder’s rights set forth in Section 2.1, Section 2.3, Section 2.4 or Section 3.1 shall require 

the written consent of each such Stockholder adversely affected; provided, however, that any 

amendment to Section 3.1 that only provides for a reasonable extension of time for the delivery 

of the financial statements or the other information to be delivered pursuant thereto shall only 

require a Stockholder Approval. If any amendment or other modification would adversely affect 

the rights and obligations of any Stockholder in a manner disproportionate relative to any other 

Stockholder or would subject a Stockholder to any obligation or liability not shared by each of 

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the other Stockholders, then such amendment or other modification shall not be effective without 

the written consent of such Stockholder.

Section 5.11 No Waiver. No delay, failure or waiver by any party to exercise any right 

or remedy under this Agreement, and no partial or single exercise of any such right or remedy, 

will operate to limit, preclude, cancel, waive or otherwise affect such right or remedy, nor will 

any single or partial exercise of such right or remedy limit, preclude, impair or waive any further 

exercise of such right or remedy or the exercise of any other right or remedy. No waiver of or 

consent to any departure from any provision of this Agreement shall be effective unless signed in 

writing by the party entitled to the benefit thereof, in which case such waiver shall bind the 

successors and permitted Transferees and assigns of such party.

Section 5.12 Notices. Except as otherwise provided elsewhere in this Agreement 

regarding notices by electronic mail or other electronic means to Stockholders and the Board and 

regarding proxies, all notices, requests, demands and other communications required or 

permitted to be given hereunder shall be in writing and shall be delivered (a) by personal 

delivery, (b) by a nationally recognized overnight courier service, (c) by electronic mail using 

equipment that provides written confirmation of delivery, or (d) by deposit in the U.S. Mail, 

postage prepaid, registered or certified mail, return receipt requested, to the Company at its 

principal executive office and to any Stockholder at the address then shown as the current 

address of such Stockholder specified on the Stockholder Registry. Any such notice shall be 

deemed to have been given on the date so delivered, if delivered personally, by overnight courier 

service or by electronic mail; or if mailed, four (4) calendar days after mailing. Any party may, 

at any time by giving five (5) calendar days’ prior written notice to the Company, specify a 

different address (physical or electronic) or electronic mail address for notice purposes by 

sending notice thereof in the foregoing manner. Any notice required to be given by the 

Company to Stockholders, including pursuant to Section 228(e) of the DGCL, may be given by 

posting to a Secure Site (with email notification of such posting to each Stockholder), and shall 

be deemed to be delivered on the date such posting is made.

Section 5.13 Consent to Jurisdiction; WAIVER OF JURY TRIAL.

(a) Consent to Jurisdiction. The Company and each Stockholder (i) irrevocably 

submit to the exclusive jurisdiction of any state court in the State of Delaware, and the United 

States District Court for the District of Delaware (and the appropriate appellate courts), for the 

purposes of any suit, action or other proceeding arising out of this Agreement and (ii) agree to 

commence any such action, suit or proceeding either in the United States District Court for the 

District of Delaware or if such suit, action or other proceeding may not be brought in such court 

for jurisdictional reasons, in any state court in the State of Delaware. Notwithstanding the 

foregoing, any party hereto may commence an action, suit or proceeding with any governmental 

body anywhere in the world for the sole purpose of seeking recognition and enforcement of a 

judgment of any court referred to in the first sentence of this Section 5.13(a). The Company and 

each Stockholder further (x) agree that service of any process, summons, notice or document by 

U.S. registered mail to such party’s respective address set forth on the Stockholder Registry (or 

in the case of the Company, at the Company’s principal office) shall be effective service of 

process for any action, suit or proceeding in Delaware with respect to any matters to which it has 

submitted to jurisdiction in this Section 5.13(a) and (y) irrevocably and unconditionally waive

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any objection to the laying of venue of any action, suit or proceeding arising out of this 

Agreement in (A) any state court in the State of Delaware, or (B) the United States District Court 

for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree

not to plead or claim in any such court that any such action, suit or proceeding brought in any 

such court has been brought in an inconvenient forum.

(b) WAIVER OF JURY TRIAL. THE COMPANY AND EACH STOCKHOLDER 

HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 

ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION 

DIRECTLY OR INDIRECTLY ARISING OUT OF, INVOLVING OR OTHERWISE IN 

RESPECT OF THIS AGREEMENT OR ANY SUCH STOCKHOLDER’S OWNERSHIP OF 

COMPANY COMMON STOCK. THE COMPANY AND EACH STOCKHOLDER 

(I) CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE 

COMPANY OR ANY STOCKHOLDER HAS REPRESENTED, EXPRESSLY OR 

OTHERWISE, THAT THE COMPANY OR SUCH STOCKHOLDER WOULD NOT, IN THE 

EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND 

(II) ACKNOWLEDGE THAT THE COMPANY AND EACH STOCKHOLDER HAVE BEEN 

INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE 

MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.13(B).

Section 5.14 No Third Party Beneficiary. Except as expressly provided in Section 

5.5, this Agreement is made solely and specifically among and for the benefit of the parties 

hereto (including each Stockholder), and their respective successors and permitted assigns, and 

no other Person will have any rights, interest, or claims hereunder or be entitled to any benefits 

under or on account of this Agreement as a third party beneficiary or otherwise.

Section 5.15 Confidentiality.

(a) The terms of this Agreement, the identity of any Person with whom the Company 

may be holding discussions with respect to any investment, acquisition, disposition or other 

transaction, any information disclosed to or received by any Stockholder pursuant to Section 3.1

or Exhibit B and all other business, financial or other information relating directly to the conduct 

of the business and affairs of the Company or its Subsidiaries or the relative or absolute rights or 

interests of any of the Stockholders (collectively, the “Confidential Information”) that has not 

been publicly disclosed by the Company is confidential and proprietary information of the 

Company, the disclosure of which may cause irreparable harm to the Company and the 

Stockholders. Accordingly, each Stockholder represents that it has not and agrees that it will not 

and will direct its stockholders, partners, directors, officers, agents, representatives, attorneys, 

accountants, advisors, employees, and Affiliates (collectively, its “Representatives”) not to, 

disclose to any Person any Confidential Information or confirm any statement made by third 

Persons regarding Confidential Information until the Company has publicly disclosed the 

Confidential Information; provided, however, that any Stockholder (or its Affiliates) may 

disclose such Confidential Information: (i) to the extent required by law (it being specifically 

understood and agreed that anything required to be set forth in a registration statement or any 

other document required to be filed pursuant to law will be deemed required by law, so long as 

the requirement to file such registration statement does not arise primarily in connection with a 

Transfer of securities of the Company), regulation, the listing standards of any national securities 

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exchange or required or requested by any governmental authority having applicable jurisdiction, 

(ii) to the extent that the Confidential Information is publicly known or subsequently becomes 

publicly known other than through a breach of this Section 5.15(a) by such Stockholder, (iii) to 

the extent that the Confidential Information is already in possession of, or is subsequently 

received by, a Stockholder from a third party not known by the Stockholder to be subject to an 

obligation of confidentiality owed to the Company, or (iv) to a prospective Transferee that (x) is 

not known by such Stockholder to be a Competitor and (y) has entered into reasonable 

confidentiality arrangements enforceable by the Company as described in Section 3.1(a), subject 

to the terms and conditions of such arrangements. Notwithstanding the foregoing, each 

Stockholder may disclose Confidential Information to its Representatives (i) who such 

Stockholder determines in good faith need to know such information for the sole purpose of 

advising such Stockholder and (ii) who are informed by such Stockholder of the confidential 

nature of such information; provided that each Stockholder will be responsible for any violation 

of this Section 5.15 by any of its Representatives as if they were parties hereto.

(b) If a Stockholder receives a request to disclose any Confidential Information under 

the terms of a valid and effective order issued by a court or governmental agency and the order 

was not sought by or on behalf of or consented to by such Stockholder, then such Stockholder 

may disclose the Confidential Information to the extent required if the Stockholder as promptly 

as practicable (i) notifies the Company of the existence, terms and circumstances of the order, 

(ii) consults in good faith with the Company on the advisability of taking legally available steps 

to resist or to narrow the order and cooperates with the reasonable requests of the Company, at 

the Company’s sole cost and expense, in connection with the foregoing, and (iii) if disclosure of 

the Confidential Information is required, exercises its commercially reasonable efforts to obtain a 

protective order or other reliable assurance that confidential treatment will be accorded to the 

portion of the disclosed Confidential Information that the Company designates. The cost 

(including attorneys’ fees and expenses) of obtaining a protective order covering Confidential 

Information designated by the Company will be borne by the Company.

(c) The covenants contained in this Section 5.15 will survive the Transfer of 

Company Common Stock of any Stockholder and the termination of this Agreement; provided, 

however, that this Section 5.15 will cease to be of any force and effect on the second (2nd) 

anniversary of the termination of this Agreement.

Section 5.16 Business Opportunities. To the fullest extent permitted by Section 

122(17) of the DGCL (or any successor provision) and except as may be otherwise expressly 

agreed in writing by the Company and any applicable Consenting Creditor (as defined in the 

Plan) (each, an “Investor” and together the “Investors”), the Company, on behalf of itself and its 

Subsidiaries, renounces and waives any interest or expectancy of the Company and its 

Subsidiaries in, or in being offered an opportunity to participate in, directly or indirectly, any 

potential transactions, matters or business opportunities (including, without limitation, any 

business activities or lines of business that are the same as or similar to those pursued by, or 

competitive with, the Company or any of its Subsidiaries or any dealings with customers or 

clients of the Company or any of its Subsidiaries) that are from time to time presented to any of 

the Investors or any of their respective Representatives even if the transaction, matter or 

opportunity is one that the Company or its Subsidiaries might reasonably be deemed to have 

pursued or had the ability or desire to pursue if granted the opportunity to do so and no such 

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person shall be liable to the Company or any of its Subsidiaries or its Affiliates for breach of any 

fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such 

person pursues, acquires or participates in such business opportunity, directs such business 

opportunity to another person or fails to present such business opportunity, or information 

regarding such business opportunity, to the Company or its Subsidiaries. Without limiting the 

foregoing renunciation, the Company acknowledges that certain Investors are in the business of 

making investments in, and have investments in, other businesses similar to and that may 

compete with the Company’s businesses (“Competing Businesses”), and agrees that each such 

Investor shall have the right to make additional investments in or have relationships with other

Competing Businesses independent of its investment in the Company. Any person purchasing or 

otherwise acquiring any interest in any shares of capital stock of the Company shall be deemed 

to have notice of and consented to the provisions of this Section 5.16. Neither the alteration, 

amendment or repeal of this Section 5.16, nor the adoption of any provision of this Agreement 

inconsistent with this Section 5.16, nor, to the fullest extent permitted by the laws of the State of 

Delaware, any modification of law, shall eliminate or reduce the effect of this Section 5.16 in 

respect of any business opportunity first identified or any other matter occurring, or any cause of 

action, suit or claim that, but for this Section 5.16, would accrue or arise, prior to such alteration, 

amendment, repeal, adoption or modification. If any provision or provisions of this Section 5.16

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 Section 5.16 (including, without limitation, 

each portion of any paragraph of this Section 5.16 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) to the fullest extent possible, the 

provisions of this Section 5.16 (including, without limitation, each such portion of any paragraph 

of this Section 5.16 containing any such provision held to be invalid, illegal or unenforceable) 

shall be construed so as to permit the Company to protect its Representatives from personal 

liability in respect of their good faith service to or for the benefit of the Company to the fullest 

extent permitted by law. This Section 5.16 shall not limit any protections or defenses available 

to, or indemnification or advancement rights of, any director or officer of the Company under 

this Agreement, the Charter Documents of the Company or applicable law.

Section 5.17 Cumulative Remedies; Specific Performance.

(a) The rights and remedies of any party hereto as set forth in this Agreement are not 

exclusive and are in addition to any other rights and remedies now or hereafter provided by law 

or at equity.

(b) The parties hereto agree and acknowledge that money damages may not be an 

adequate remedy for any breach of the provisions of this Agreement and that, in addition to any 

other rights and remedies at law or in equity existing in its favor, any non-breaching party hereto 

shall be entitled to seek specific performance and/or other injunctive relief from any court of law 

or equity of competent jurisdiction (without posting any bond or other security) in order to 

enforce or prevent violation of the provisions of this Agreement.

Section 5.18 Exhibits and Schedules. All Exhibits and Schedules attached hereto are 

hereby incorporated by reference into, and made a part of, this Agreement.

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Section 5.19 Interpretation. The titles and section headings set forth in this 

Agreement are for convenience only and shall not be considered as part of agreement of the 

parties hereto. When the context requires, the plural shall include the singular and the singular 

the plural, and any gender shall include all other genders or neuter. The words “include,” 

“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

No provision of this Agreement shall be interpreted or construed against any party because such 

party or its counsel was the drafter thereof. Any reference to the DGCL or other statutes or laws 

will include all amendments, modifications, or replacements of the specific sections and 

provisions concerned. Numbered or lettered articles, sections, and subsections herein contained 

refer to articles, sections, and subsections of this Agreement unless otherwise expressly stated.

Section 5.20 Termination. This Agreement will be automatically effective as of the 

Effective Date and will continue in effect thereafter until the earlier to occur of (a) its termination 

by the unanimous written consent of all Stockholders, (b) the dissolution, liquidation or winding 

up of the Company, (c) the occurrence of a Public Listing and (d) the date that is twenty (20) 

years after the date hereof. This Article V shall survive any termination of this Agreement.

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Schedule I – Page 1

SCHEDULE I

COMPETITORS

[To be supplied.]

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Exhibit A – Page 1

EXHIBIT A

DEFINITIONS

As used in this Agreement, the following terms will have the following meanings, and all 

section references shall be to sections in this Agreement unless otherwise provided:

“Accelerated Buyer” has the meaning set forth in Section 4.1(e).

“Affiliate(s)” means with respect to any Person, (i) any other Person that directly or 

indirectly through one or more intermediaries controls, or is controlled by, or is under common 

control with, such Person (for the purposes of this definition, “control” (including, with 

correlative meanings, the terms “controlling,” “controlled by” and “under common control 

with”), as used with respect to any Person, means the possession, directly or indirectly, of the 

power to direct or cause the direction of the management or policies of such Person, whether 

through the ownership of voting securities, by agreement or otherwise); provided, however, that 

neither the Company nor any of its controlled Affiliates shall be deemed an Affiliate of any of 

the Stockholders (and vice versa), (ii) if such Person is an investment fund, an Affiliate shall 

include any other investment fund the primary investment advisor to which, or an Affiliate of 

such primary investment advisor, is the primary investment advisor to such Person and (iii) if 

such Person is a natural Person, any Family Member of such natural Person.

“Affiliate Transaction” has the meaning set forth in Section 2.2(b).

“Agreement” has the meaning set forth in the preamble.

“At-Large Directors” has the meaning set forth in Section 2.1(b)(vi).

“Backstop Commitment Agreement” has the meaning set forth in the Plan.

“Board” means the board of directors of the Company.

“Board Designators” means Brigade, Oppenheimer and Searchlight, collectively.

“Brigade” means Brigade Capital Management, LP, its Affiliates, and any fund, account 

or client managed or advised by any such Person from time to time.

“Brigade Director” has the meaning set forth in Section 2.1(b)(ii).

“Business Day” means any day other than a Saturday, Sunday or date on which 

commercial banks in New York, New York are authorized by law to close for business.

“Charter Documents” means, with respect to the Company, the certificate of 

incorporation and bylaws of the Company, as the same may be amended, supplemented, 

modified or restated from time to time, and with respect to any other Person, the articles of 

incorporation, bylaws, certificate of incorporation, certificate of formation, operating agreement, 

partnership agreement or any other similar incorporating or formation documents of such Person, 

as the same may be amended, supplemented, modified or restated from time to time.

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“Class I Directors” has the meaning set forth in Section 2.1(c).

“Class II Directors” has the meaning set forth in Section 2.1(c).

“Class III Directors” has the meaning set forth in Section 2.1(c).

“Company” has the meaning set forth in the preamble.

“Company Common Stock” means the common stock, par value $0.01 per share, of the 

Company.

“Competing Businesses” has the meaning set forth in Section 5.16.

“Competitor” means any of the Persons set forth on Schedule I attached hereto and any 

of their controlled Affiliates, which schedule may be modified by the Board in good faith from 

time to time.

“Confidential Information” has the meaning set forth in Section 5.15(a).

“Debtors” has the meaning set forth in the recitals.

“Derivative Securities” means direct or indirect options, rights, warrants or securities 

convertible into or exercisable or exchangeable for, any Company Common Stock or any other 

capital stock of the Company.

“DGCL” means the Delaware General Corporation Law, as the same may be amended 

from time to time. All references herein to sections of the DGCL shall include any 

corresponding provisions of succeeding law.

“Director” means any member of the Board (other than any Person (if any) effecting 

observer rights on the Board).

“EDGAR” means the Electronic Data Gathering, Analysis and Retrieval System of the 

SEC.

“Effective Date” has the meaning set forth in the preamble.

“Equity Incentive Plans” means any equity incentive plans of the Company for Directors 

or officers or employees of the Company, including the Management Incentive Plan (as defined 

in the Plan).

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to 

time.

“Executive Director” has the meaning set forth in Section 2.1(b)(i).

“Exempt Securities” has the meaning set forth in Section 4.1(d).

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“Family Member” means, with respect to any natural Person, such Person’s spouse and 

descendants (whether or not adopted) and any trust, family limited partnership or limited liability 

company that is and remains solely for the benefit of such Person’s spouse and/or descendants.

“GAAP” means the generally accepted accounting principles as in effect from time to 

time in the U.S.

“Investor Directors” has the meaning set forth in Section 2.1(b)(iv).

“Investor(s)” has the meaning set forth in Section 5.16.

“IPO” means the first public offering of the Company pursuant to an effective 

Registration Statement under the Securities Act (other than on Forms S-4, S-8 or successors to 

such forms), covering the offer and sale of capital stock of the Company.

“Issuance Notice” has the meaning set forth in Section 4.1(b).

“Majority of Disinterested Directors” has the meaning set forth in Section 2.2(b).

“MD&A” has the meaning set forth in Section 3.1(a)(i).

“Minimum Designating Ownership” means seven and one-half percent (7.5%) of 

Outstanding Company Common Stock.

“Necessary Action” means, with respect to a specified result, all actions that are 

permitted by applicable law and reasonably necessary to cause such result, including (i) voting or 

providing a written consent or proxy with respect to Company Common Stock, (ii) causing the 

adoption of Stockholders’ resolutions and amendments to the applicable Charter Documents, 

(iii) causing the Directors (to the extent such Directors were nominated or designated by the 

Person obligated to undertake the Necessary Action, and subject to any fiduciary duties that such 

Directors may have as directors of the Company) to act in a certain manner or causing them to be 

removed in the event they do not act in such a manner, (iv) executing agreements and 

instruments and (v) making, or causing to be made, with governmental, administrative or 

regulatory authorities, all filings, registrations or similar actions that are required to achieve such 

result.

“New Securities” means Company Common Stock and other capital stock and rights, 

convertible securities, options or warrants to purchase Company Common Stock or other capital 

stock issued subsequent to the Effective Date, whether or not authorized as of the Effective Date.

“Oppenheimer” means OppenheimerFunds, Inc., its Affiliates, and any fund, account or 

client managed or advised by any such Person from time to time.

“Oppenheimer Director” has the meaning set forth in Section 2.1(b)(iii).

“Outstanding Company Common Stock” means, as of any given time, the then issued 

and outstanding Company Common Stock, excluding (unless calculated on a fully diluted basis) 

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Exhibit A – Page 4

any Derivative Securities and any unvested or restricted Company Common Stock issued 

pursuant to an Equity Incentive Plan.

“Permitted Person” has the meaning set forth in Section 3.1(a).

“Person” means an individual, partnership, limited liability company, corporation, joint 

venture, trust, business trust, association, or similar entity, whether domestic or foreign, and the 

heirs, executors, legal representatives, successors and assigns of such entity where the context 

requires.

“Plan” has the meaning set forth in the recitals.

“Preemptive Offer Record Date” has the meaning set forth in Section 4.1(b).

“Public Listing” means the listing of Company Common Stock on a U.S. national 

securities exchange registered with the SEC (whether in connection with an initial public 

offering of Company Common Stock or otherwise).

“Purchaser” has the meaning set forth in Section 4.1(b).

“Qualified IPO” means a bona fide, marketed underwritten IPO after which closing such 

capital is quoted on the NASDAQ National Market or listed or quoted on the New York Stock 

Exchange or other national securities exchange acceptable to the Board and meeting one of the 

following two criteria: (i) the aggregate cash proceeds (net of underwriting discounts, 

commissions and offering expenses) of such offering to the Company exceed one hundred 

million dollars ($100,000,000), or (ii) at least twenty percent (20%) of the Outstanding Company 

Common Stock (calculated on a fully diluted basis, and for purposes of such calculation treating 

Company Common Stock issued in the IPO as Outstanding Company Common Stock) shall have 

been issued or sold to the public in connection with such IPO.

“Qualified Stockholder” has the meaning set forth in Section 4.1(a).

“Quarterly Call” has the meaning set forth in Section 3.1(c).

“Reallotment Securities” has the meaning set forth in Section 4.1(c).

“Registration Rights Agreement” means that certain registration rights agreement, dated 

as of [●], 2017, by and among the Company and the investors party thereto.

“Registration Statement” means any registration statement of the Company under the 

Securities Act which permits the public offering of any of the Registrable Securities (as defined 

in the Registration Rights Agreement), including the prospectus, amendments and supplements 

to such registration statement, including post-effective amendments, all exhibits and all material 

incorporated by reference or deemed to be incorporated by reference in such registration 

statement.

“Replacement Brigade Director” has the meaning set forth in Section 2.1(e).

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“Replacement Oppenheimer Director” has the meaning set forth in Section 2.1(e).

“Replacement Directors” has the meaning set forth in Section 2.1(e).

“Representatives” has the meaning set forth in Section 5.15(a).

“Response Notice” has the meaning set forth in Section 4.1(b).

“Rights Offerings” has the meaning set forth in the Plan.

“Searchlight” means Searchlight Capital Partners, LP, its Affiliates, and any fund, 

account or client managed or advised by any such Person from time to time.

“Searchlight Director” has the meaning set forth in Section 2.1(b)(iv).

“SEC” means the Securities and Exchange Commission and any governmental body or 

agency succeeding to the functions thereof.

“Secure Site” has the meaning set forth in Section 3.1(a).

“Securities Act” means the Securities Act of 1933, as amended.

“Stockholder” means each Person (other than the Company) who shall be a party to or 

bound by this Agreement, so long as such Person shall “beneficially own” (as such term is 

defined in Rule 13d-3 of the Exchange Act) any Company Common Stock.

“Stockholder Approval” means the affirmative vote or written consent of the holders of 

at least a majority of the shares of Outstanding Company Common Stock (subject to any 

adjustments or limitations on voting as set forth in the Company’s Charter Documents).

“Stockholder Registry” means a register of the Company indicating: (i) with respect to 

each issuance of Company Common Stock or other capital stock of the Company, the date of 

such issuance, the number of shares issued and the Stockholder to whom such shares were issued 

and (ii) with respect to each transfer of Company Common Stock or other capital stock of the 

Company, the date of such Transfer, the number of shares Transferred and the identity of each of 

the transferor and the transferee(s) thereof.

“Subsidiary” means any Person the majority of the equity of which, directly, or indirectly 

through one or more other Persons, (a) the Company has the right to acquire or (b) is owned or 

controlled by the Company. As used in this definition, “control,” including, its 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 equity, by contract or otherwise). For the avoidance of doubt, Subsidiary shall 

include any Person that is included in the Company’s consolidated group for purposes of 

preparing the Company’s consolidated financial statements in accordance with GAAP.

“Transfer” means the sale, sale of any option or contract to purchase, purchase of any 

option or contract to sell, grant of any option, right or warrant to purchase, assignment, loan, 

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offer, transfer, exchange or other disposition of any shares of Company Common Stock, whether 

or not for value, and whether voluntarily, by operation of law or otherwise, and includes 

foreclosure.

“U.S.” means the United States of America.

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Exhibit B – Page 1

EXHIBIT B

FORM OF 

CONFIDENTIALITY AGREEMENT

[●]

[●]

[●]

[INSERT DATE]

[INSERT NAME OF POTENTIAL TRANSFEREE]

[INSERT ADDRESS OF POTENTIAL TRANSFEREE]

Ladies and Gentlemen:

In connection with the consideration by [INSERT NAME OF POTENTIAL 

TRANSFEREE] (“you” or “your”) of a potential investment in shares of the common stock, par 

value $0.01 per share, of Giraffe New Holding Co., Inc., a Delaware corporation (the 

“Company” and together with you, collectively, the “Parties” and each individually, a “Party”), 

or other securities of the Company (the “Transaction”), certain affiliates or stockholders of the 

Company, the Company or their respective representatives have furnished or may furnish you 

and your Representatives (as hereinafter defined) with non-public information regarding the 

Company, including, without limitation, information concerning the Company’s financial and 

operational performance, properties, prospects, activities and plans. You recognize and 

acknowledge that such information furnished or to be furnished to you and/or your 

Representatives in the future (whether oral or written) is proprietary to the Company and may 

include trade secrets or other highly confidential non-public business information the disclosure 

of which could harm the Company. In consideration for, and as a condition of, such non-public 

information being furnished to you (and your agents, representatives, attorneys, accountants, 

advisors, directors, officers, employees and affiliates, collectively, your “Representatives”), you 

agree to treat any and all information concerning the Company or any of its subsidiaries that has 

been or is to be furnished to you or your Representatives (regardless of the manner in which it is 

furnished, including, without limitation, in written or electronic format or orally, gathered by 

visual inspection or otherwise) by or on behalf of the Company or any of its affiliates or 

stockholders, together with any documents you create that contain or are based upon any such 

information, in whole or in part (collectively, “Company Information”), in accordance with the 

provisions of this letter agreement (this “Agreement”).

The term “Company Information” does not include information that you can 

demonstrate: (i) is obtained by you or your Representatives from a third party, who, after 

reasonable inquiry, is not known by you to be bound by any duty of confidentiality to or 

confidential agreement with the Company or any other Person (as defined below) with respect to 

Company Information or is otherwise prohibited from transmitting the information to you by a 

contractual, legal, fiduciary or other obligation to the Company or any other Person; (ii) is or 

becomes part of the public domain (other than through a breach of this Agreement by you or any 

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of your Representatives); (iii) is independently ascertained or developed by or for you or your 

Representatives or any third party without use of or reference to Company Information; or (iv) is 

approved for public release by written authorization of the Company. For purposes of this 

Agreement, the term “Person” shall be broadly interpreted to include, without limitation, any 

individual, partnership, limited liability company, corporation, joint venture, trust, business trust, 

association or similar entity, whether domestic or foreign, and the heirs, executors, legal 

representatives, successors and assigns of such entity where the context requires.

1. You hereby agree that you and your Representatives will, except to the extent 

required by applicable law or legal process, (a) keep the Company Information strictly 

confidential, (b) not disclose any of the Company Information in any manner whatsoever without 

the prior written consent of the Company and (c) not use the Company Information for any 

purpose other than considering and negotiating the Transaction; provided, however, that you may 

disclose any of such information to your Representatives (i) who need to know such information 

for the sole purpose of advising you and (ii) who are informed by you of the confidential nature 

of such information; provided, further, that you will (x) be responsible for any violation of this 

Agreement by any of your Representatives as if they were parties hereto and (y) provide the 

Company with the names of any your Representatives that receives Company Information. You 

agree to promptly notify the Company in writing of any unauthorized use or disclosure of the 

Company Information and such notice shall include a detailed description of the circumstances 

of the disclosure and the Persons involved.

2. In the event that you or any of your Representatives are required by applicable 

law or legal process to disclose any of the Company Information, you will promptly notify 

(except where such notice would be legally prohibited) the Company in writing so that the 

Company may seek a protective order or other appropriate remedy and (except to the extent 

legally prohibited) will reasonably cooperate with the Company (at the Company’s expense) to 

limit the disclosure to the greatest extent possible consistent with such applicable law or legal 

process, including, without limitation, in appropriate circumstances, seeking reliable assurances 

that confidential or “attorneys eyes only” treatment shall be accorded the Company Information. 

Any such Company Information that is (x) not required to be disclosed or (y) accorded 

confidential treatment shall continue to be Company Information to which this Agreement shall 

continue to apply. You acknowledge and agree that, for purposes of this Agreement, there shall 

be no “applicable law” requiring you to disclose any Company Information solely by virtue of 

the fact that, absent such disclosure, you would be prohibited from purchasing, selling, or 

engaging in derivative transactions with respect to, any securities of the Company or otherwise 

proposing or making an offer to do any of the foregoing.

3. All Company Information shall remain the property of the Company. Neither you 

nor any of your Representatives shall by virtue of disclosure to you or any of your 

Representatives, or your or any of your Representative’s use, of any Company Information 

acquire any rights with respect thereto, all of which rights (including, without limitation, all 

intellectual property rights) shall remain exclusively with the Company.

4. If you determine that you do not wish to proceed with a Transaction, you will 

promptly advise the Company of that decision. As soon as possible upon the Company’s written 

request, you and your Representatives shall destroy (or at the Company’s option (in its sole 

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discretion) return to the Company) all Company Information that has been disclosed to you or 

any of your Representatives, except for any such Company Information stored on electronic 

backup media to the extent that such information cannot be expunged without unreasonable 

effort. Upon returning or destroying such Company Information, you shall provide written notice 

to the Company certifying compliance with the foregoing sentence. Notwithstanding the 

provisions of this paragraph, you acknowledge and agree that this Agreement will continue to 

apply to any returned, held, retained or destroyed Company Information on the terms set forth 

herein.

5. You acknowledge and agree that all Company Information is furnished on an “AS 

IS” basis, without warranty of any kind. THE COMPANY AND ITS AFFILIATES 

EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER 

EXPRESS OR IMPLIED, REGARDING THE COMPANY INFORMATION, INCLUDING, 

WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF 

MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR 

PURPOSE.

6. You acknowledge that an award of money damages would be inadequate for any 

breach of this Agreement by you or any of your Representatives and would cause the Company 

irreparable harm. Therefore, you hereby agree that, in the event of any breach or threatened 

breach of this Agreement by you or any of your Representatives, the Company will be entitled to 

seek equitable relief, including, without limitation, injunctive relief and specific performance, as 

remedies for any such breach or threatened breach without the requirement of posting a bond or 

other security. Such remedies will not be the exclusive remedies for any breach of this 

Agreement, but will be in addition to all other remedies available at law or in equity to the 

Company.

7. This Agreement or any provision hereof may not be amended, modified or waived 

by course of dealing, usage in trade, conduct or any exchanges of communication, including, 

without limitation, e-mail or any other electronic or digital means, other than by amendment, in 

writing duly executed with the handwritten signatures of an authorized signatory of each of the 

Parties. The rights and remedies of the Parties are cumulative, and not alternative. Neither the 

failure nor any delay by any Party in exercising any right, power, or privilege under this 

Agreement will operate as a waiver of such right, power, or privilege, and no single or partial 

exercise of any such right, power, or privilege will preclude any other or further exercise of such 

right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum 

extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be 

discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right 

unless in writing signed by the other Party; (b) no waiver that may be given by a Party will be 

applicable except in the specific instance for which it is given; and (c) no notice to or demand on 

one Party will be deemed to be a waiver of any obligation of such Party or of the right of the 

Party giving such notice or demand to take further action without notice or demand as provided 

in this Agreement.

8. This Agreement constitutes the complete agreement between the Parties 

concerning the subject matter hereof and supersedes and cancels any and all prior 

communications and agreements between the Parties with respect thereto. This Agreement 

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Exhibit B – Page 4

relates only to the subject matter hereof and shall not be construed as an agreement to agree to 

enter into the Transaction or any transaction by either Party. The invalidity or unenforceability of 

any provision of this Agreement shall not affect the validity or enforceability of any other 

provisions of this Agreement, which shall remain in full force and effect. If any of the covenants 

or provisions of this Agreement are determined to be unenforceable by reason of its extent, 

duration, scope or otherwise, then the Parties contemplate that the court making such 

determination shall reduce such extent, duration, scope or other provision and enforce them in 

their reduced form for all purposes contemplated by this Agreement.

9. Neither Party may assign any rights or delegate any duties under this Agreement 

without the prior written consent of the other Party, which consent shall be at the other Party’s 

sole discretion. Any such attempted assignment or delegation without the other Party’s prior 

written consent will be null and void ab initio. This Agreement will be binding upon the Parties 

and their respective authorized successors and assigns.

10. You acknowledge and agree that no contract or agreement providing for any 

Transaction shall be deemed to exist between you and the Company or any of its affiliates or 

stockholders unless and until a final definitive agreement has been executed and delivered, and 

each Party hereby waives, in advance, any claims (including, without limitation, breach of 

contract) in connection with any Transaction unless and until a final definitive agreement has 

been executed and delivered with respect thereto. The Parties also agree that unless and until a 

final definitive agreement regarding a Transaction has been executed and delivered, neither Party 

will be under any legal obligation of any kind whatsoever with respect to such a Transaction by 

virtue of this Agreement, except for the matters specifically agreed to herein. You acknowledge 

and agree that the Company and its affiliates and stockholders reserve the right, in their sole 

discretion, to reject any and all proposals made by you or any of your Representatives with 

regard to the Transaction, and to terminate discussions and negotiations with you at any time.

11. This Agreement shall be deemed to have been made and executed in the State of 

Delaware, and any dispute arising hereunder shall be governed by, and construed in accordance 

with, the laws of the State of Delaware, without regard to its conflict of laws rules. You and the 

Company (i) irrevocably submit to the exclusive jurisdiction of any state court in the State of 

Delaware and the United States District Court for the District of Delaware (and the appropriate 

appellate courts) for the purposes of any suit, action or other proceeding arising out of this 

Agreement and (ii) agree to commence any such action, suit or proceeding either in the United 

States District Court for the District of Delaware or if such suit, action or other proceeding may 

not be brought in such court for jurisdictional reasons, in any state court in the State of Delaware.

12. EACH OF THE COMPANY AND YOU HEREBY WAIVES, TO THE 

FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT OR YOU MAY 

HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY OR INDIRECTLY 

ARISING OUT OF, INVOLVING OR OTHERWISE IN RESPECT OF THIS AGREEMENT.

13. Any notice hereunder shall be made in writing by overnight courier, personal 

delivery or email (if telephonically confirmed), in each case to:

If to the Company:

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Exhibit B – Page 5

[●]

[●]

[●]

Attention: [●]

If to you:

[INSERT ADDRESS OF POTENTIAL TRANSFEREE]

Attention: 

Telephone: 

Email:

14. This Agreement shall expire on the earlier of (i) the date of the last to occur of (x) 

a definitive agreement relating to the Transaction is entered into by you and either the Company 

or any of its affiliates or stockholders and (y) you have become a party to the Stockholders 

Agreement, dated as of [●], as amended from time to time, by and among the Company and the 

stockholders of the Company and (ii) the twenty-four (24) month anniversary of the date hereof.

15. This Agreement may be executed in two (2) or more counterparts, each of which 

will be deemed to be an original and all of which taken together will be deemed to constitute this 

Agreement when a duly authorized representative of each Party has signed a counterpart. The 

Parties may sign and deliver this Agreement by electronic (that is, .PDF) transmission. Each 

Party agrees that the delivery of this Agreement by electronic transmission will have the same 

force and effect as delivery of original signatures.

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Exhibit B – Page 6

Please confirm your agreement with the foregoing by signing and returning one copy of 

this Agreement to the undersigned, whereupon this letter agreement shall become a binding 

agreement between you and the Company.

Very truly yours,

GIRAFFE NEW HOLDING CO., INC.

By:

Name: 

Title:

Accepted and agreed as of the date first written above:

[INSERT NAME OF POTENTIAL 

TRANSFEREE]

By:

Name: 

Title:

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EXHIBIT F (a)

Comparison of New Stockholders’ Agreement

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Milbank Draft

8/1731/17

STOCKHOLDERS AGREEMENT

BY AND AMONG

[GIRAFFE NEW HOLDING CO., INC.]

AND

THE STOCKHOLDERS (AS DEFINED HEREIN)

DATED AS OF [●], 2017

#4834-9648-4940

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TABLE OF CONTENTS

Page

ARTICLE I

STOCKHOLDERS

Section 1.1 Stockholders 1

ARTICLE II

BOARD OF DIRECTORS; MANAGEMENT AND CONTROL OF BUSINESS

Section 2.1 Board of Directors 2

Section 2.2 Restrictions on Authority of the Board 4

Section 2.3 Directors’ Non-exclusive Services 6

Section 2.4 Reimbursement of Expenses 6

ARTICLE III

INFORMATION RIGHTS

Section 3.1 Information Rights of Stockholders; Records Required by the DGCL;

Right of Inspection 6

Section 3.2 Information Rights of the Company 8

ARTICLE IV

PREEMPTIVE RIGHTS; REGISTRATION RIGHTS

Section 4.1 Preemptive Rights 89

Section 4.2 Registration Rights 1011

ARTICLE V

MISCELLANEOUS

Section 5.1 Complete Agreement 11

Section 5.2 Certain Actions 11

Section 5.3 Governing Law 11

Section 5.4 No Assignment 11

Section 5.5 Binding Effect 1112

Section 5.6 Severability 1112

Section 5.7 No Partition 1112

Section 5.8 Additional Documents and Acts 12

Section 5.9 No Employment Rights 12

Section 5.10 Amendments; Termination of Equity Rights 12

 i

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Section 5.11 No Waiver 1213

Section 5.12 Notices 1213

Section 5.13 Consent to Jurisdiction; WAIVER OF JURY TRIAL 13

Section 5.14 No Third Party Beneficiary 14

Section 5.15 Confidentiality 14

Section 5.16 Business Opportunities 15

Section 5.17 Cumulative Remedies; Specific Performance 16

Section 5.18 Exhibits and Schedules 16

Section 5.19 Interpretation 1617

Section 5.20 Termination 1617

SCHEDULE I COMPETITORS

EXHIBIT A DEFINITIONS

EXHIBIT B CONFIDENTIALITY AGREEMENT

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STOCKHOLDERS AGREEMENT

This Stockholders Agreement (as amended, modified or supplemented from time to time,

this “Agreement”) is made and entered into as of [●], 2017 (the “Effective Date”) by and among

[Giraffe New Holding Co., Inc.], a Delaware corporation (the “Company”), and the Stockholders

(as defined herein). Capitalized terms used, but not otherwise defined, herein have the meanings

set forth in Exhibit A attached hereto and made a part hereof by reference.

RECITALS

A. The Company and certain other affiliated debtors (collectively, the “Debtors”)

filed a plan of reorganization pursuant to Chapter 11 of the United States Bankruptcy Code, on

June 16, 2017, which was confirmed by the United States Bankruptcy Court for the Eastern

District of Virginia on [●], 2017 (including all exhibits, schedules and supplements thereto and

as amended from time to time in accordance with the terms thereof, the “Plan”).

B. The Plan provides that the Company and the Stockholders will enter into a

stockholders agreement to establish certain arrangements with respect to the Company Common

Stock, and the Company and Stockholders are entering into this Agreement in furtherance of the

aforesaid provisions of the Plan.

C. As of the date hereof, the Stockholders hold in the aggregate all of the

Outstanding Company Common Stock.

D. The Plan provides that this Agreement shall be deemed to be valid, binding and

enforceable in accordance with its terms, and each Stockholder shall be deemed to be bound

hereby, in each case without the need for execution of this Agreement by any party hereto other

than the Company.

E. The parties hereto desire to enter into this Agreement to establish certain

arrangements with respect to the Company Common Stock and other related corporate matters of

the Company.

NOW, THEREFORE, in consideration of the mutual covenants and agreements

hereinafter set forth and other good and valuable consideration, the receipt, adequacy and

sufficiency of which are hereby acknowledged, the Company and the Stockholders, intending to

be legally bound, hereby agree as follows:

ARTICLE I

STOCKHOLDERS

Section 1.1 Stockholders. Except for the obligations contained in Section 5.15, a

Person shall cease to be a Stockholder for all purposes upon the disposition of all of such

Person’s Company Common Stock.

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ARTICLE II

BOARD OF DIRECTORS; MANAGEMENT AND CONTROL OF BUSINESS

Section 2.1 Board of Directors.

(a) The Board, acting in accordance with the terms of this Agreement, shall have the

right, power and authority to oversee the business and affairs of the Company and to do all things

necessary or appropriate to manage the business and affairs of the Company, and the Board is

hereby authorized to take any action of any kind and to do anything and everything the Board

deems necessary or appropriate in accordance with the provisions of this Agreement, the

Company’s Charter Documents and applicable law. At all times, the composition of any board

of directors or equivalent of any Subsidiary of the Company shall be the same as that of the

Board.

(b) The Board shall be comprised of seven (7) Directors as follows:

(i) the chief executive officer of the Company (the “Executive Director”),

who shall initially be [●]Daniel Griesemer;

(ii) for so long as Brigade Capital Management and its Affiliates (“Brigade”)

collectively holdholds at least the Minimum Designating Ownership, one (1) Director designated

by Brigade (the “Brigade Director”), who shall initially be [●]Matt Perkal;

(iii) for so long as OppenheimerFunds, Inc. and its Affiliates (“Oppenheimer”)

collectively hold holds at least the Minimum Designating Ownership, one (1) Director

designated by Oppenheimer (the “Oppenheimer Director”), who shall initially be [●]Brian

Hickey;

(iv) for so long as Searchlight Capital Partners, L.P. and its Affiliates

(“Searchlight” and together with Brigade and Oppenheimer, the “Board Designators”)

collectively holdholds at least the Minimum Designating Ownership, one (1) Director designated

by Searchlight (the “Searchlight Director” and together with the Brigade Director and the

Oppenheimer Director, the “Investor Directors”), who shall initially be [●]Eric Sondag; and

(v) three (3) Directors elected by the Stockholders in accordance with Section

2.1(c)(iii) and the Company’s Charter Documents (the “At-Large Directors”), who shall initially

be Ron Beegle of Carriage House Capital Advisors, LLC, [●]Shaz Kahng and [●].1

(c) Commencing as of the Effective Date, the Board shall be divided, with respect to

the time for which the Directors shall severally hold office, into three (3) classes as follows: (i)

the Executive Director and the [●]Oppenheimer Director (or any replacement thereof selected in

accordance with Section 2.1(f) and the Company’s Charter Documents) shall serve in Class I

with an initial term expiring at the 2018 annual meeting of the Stockholders in accordance with

the Company’s Charter Documents (the “Class I Directors”), (ii) the [●]Brigade Director and

1 Note to Draft: Remaining At-Large Directors to be designated by the Required Consenting Creditors prior to 

emergence.

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the [●]Searchlight Director (or any replacement thereof selected in accordance with accordance

with Section 2.1(f) and the Company’s Charter Documents) shall serve in Class II with an initial

term expiring at the 2019 annual meeting of the Stockholders in accordance with the Company’s

Charter Documents (the “Class II Directors”), and (iii) the At-Large Directors (or any

replacement thereof selected in accordance Section 2.1(f) and the Company’s Charter

Documents) shall serve in Class III with an initial term expiring at the 2020 annual meeting of

the Stockholders in accordance with the Company’s Charter Documents (the “Class III

Directors”). Commencing with the 2018 annual meeting of the Stockholders (in accordance with

the Company’s Charter Documents), each Director that is elected by the Stockholders shall be

elected for a three (3)-year term.

(d) The Company and the Stockholders shall take all Necessary Action to ensure that

(i) subject to the applicable Board Designator holding at least the Minimum Designating

Ownership, each Investor Director designated by the applicable Board Designator shall hold

office until the earlier to occur of (x) such Investor Director’s death, disability, or disqualification

and (y) such Investor Director’s retirement, resignation, replacement or removal from the Board

in accordance with Section 2.1(f) and the Company’s Charter Documents and (ii) each At-Large

Director shall hold office until the annual meeting of the Stockholders to elect the Class III

Directors in accordance with Section 2.1(c)(iii) and the Company’s Charter Documents or such

shorter period resulting from any such At-Large Director’s (x) death, disability or disqualification

or (y) retirement, resignation, replacement or removal.

(e) If at any time (i) Brigade holds less than the Minimum Designating Ownership,

(A) the representative designated by Brigade Director shall serve as the Brigadea Class II

Director until the expiration of the then-current term of the Class [●]II Directors or until such

Director’s earlier death, disability, disqualification, retirement, resignation or removal, (B) at the

subsequent election of Class [●]II Directors, a Director (who may be the Brigade Director)

shall be elected by the Stockholders in accordance with the Company’s Charter Documents to fill

the seat of the Brigade Director (such Director who initially replaces the Brigade Director

pursuant to this Section 2.1(e) or any Brigadesuch Class II Director thereafter, the

“Replacement Brigade Director”), and (C) Brigade shall no longer be entitled to designate the

Brigade Director, (ii) Oppenheimer holds less than the Minimum Designating Ownership, (A)

the representative designated by Oppenheimer Director shall serve as the Oppenheimera Class I

Director until the expiration of the then-current term of the Class [●]I Directors or until such

Director’s earlier death, disability, disqualification, retirement, resignation or removal, (B) at the

subsequent election of Class [●]I Directors, a Director (who may be the Oppenheimer Director)

shall be elected by the Stockholders in accordance with the Company’s Charter Documents to fill

the seat of the Oppenheimer Director (such Director who initially replaces the Oppenheimer

Director pursuant to this Section 2.1(e) or any Oppenheimersuch Class I Director thereafter, the

“Replacement Oppenheimer Director”), and (C) Oppenheimer shall no longer be entitled to

designate the Oppenheimer Director, or (iii) Searchlight holds less than the Minimum

Designating Ownership, (A) the representative designated by Searchlight Director shall serve as

the Searchlighta Class II Director until the expiration of the then-current term of the Class [●]II

Directors or until such Director’s earlier death, disability, disqualification, retirement, resignation

or removal, (B) at the subsequent election of Class [●]II Directors, a Director (who may be the

Searchlight Director) shall be elected by the Stockholders in accordance with the Company’s

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Charter Documents to fill the seat of the Searchlight Director (such Director who initially

replaces the Searchlight Director pursuant to this Section 2.1(e) or any Searchlightsuch Class II

Director thereafter, together with the Replacement Brigade Director and the Replacement

Oppenheimer Director, the “Replacement Directors”), and (C) Searchlight shall no longer be

entitled to designate the Searchlight Director.

(f) Subject to the applicable Board Designator holding at least the Minimum

Designating Ownership, (i) each Investor Director shall serve solely at the discretion of the Board

Designator that designated such Investor Director and (ii) any Investor Director may be removed

(which removal may occur at any time with or without cause) and replaced only by the Board

Designator that designated such Director and any vacancy on the Board resulting from the death,

disability, retirement, resignation, disqualification or removal of such Investor Director shall be

filled only by such Board Designator, and the Company and the Stockholders shall take all

Necessary Action as may be required to facilitate and implement the immediate appointment of

such replacement Investor Director to the Board. If the chief executive officer of the Company is

removed or resigns or is otherwise replaced as an officer of the Company, such person shall

automatically, and without any action by the Board or the Stockholders, cease to be the Executive

Director, and the Company’s successor chief executive officer appointed pursuant to the

Company’s Charter Documents shall automatically become the Executive Director pursuant to

Section 2.1(b)(i) and the Company and the Stockholders shall take all Necessary Action to ensure

that such successor chief executive officer is elected as the Executive Director at the subsequent

election of Class I Directors. The At-Large Directors and the Replacement Directors may be

removed and replaced in accordance with the Company’s Charter Documents, and any vacancy

on the Board resulting from the death, disability, retirement, resignation, disqualification or

removal of any such Director shall be filled by the affirmative vote of a majority the Directors

then serving on the Board.

(g) A Director may resign from the Board at any time upon delivery of written notice

to the Board and the Stockholder(s) that designated or elected him or her, and any such vacancy

shall be filled in accordance with Section 2.1(f).¶

(h) The size and composition of the committees of the Board and the committees

of the boards of directors or equivalent governing bodies of the Company’s Subsidiaries

shall be as determined by the Board from time to time; provided, that each Investor

Director shall have the right to serve on any such committee of the Board (or any such

committee of the boards of directors or equivalent governing bodies of the Company’s

Subsidiaries) so long as the applicable Board Designator owns at least the Minimum

Designating Ownership.

Section 2.2 Restrictions on Authority of the Board.

(a) Notwithstanding anything to the contrary in this Agreement, none of the following

actions may be taken by the Company, directly or indirectly (and the Company shall cause its

Subsidiaries to refrain from taking such actions) without a Stockholder Approval:

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(i) any merger, consolidation, reorganization or equity recapitalization of the

Company or its Subsidiaries (other than mergers or consolidations of a wholly owned Subsidiary

of the Company with another wholly owned Subsidiary of the Company or with the Company);

(ii) any sale, assignment or other transfer of all or substantially all of the assets

or properties of the Company and its Subsidiaries (in each case, on a consolidated basis) other

than (x) sales, assignments and transfers between a wholly owned Subsidiary of the Company

and the Company or another wholly owned Subsidiary of the Company or (y) a pledge of assets

of the Company and its Subsidiaries in accordance with the exit term loan facility provided by

the DIP Term Loan Lenders (as defined in the Plan) to be entered into by the Debtors or any of

their successors on the terms set forth in the Exit Term Loan Facility Term Sheet attached as

Annex IV to that certain Restructuring Support Agreement, dated June 11, 2017, by and among

the Debtors, the Sponsor and the Consenting Creditors (each as defined in the Plan);

(iii) any liquidation, dissolution or winding up, bankruptcy or consenting to the

entry of a decree or order appointing a trustee, custodian, receiver, liquidator, assignee or similar

official, in each case, of the Company or any material Subsidiary of the Company, or any action

that would cause the foregoing;

(iv) any amendment, modification or waiver of the Charter Documents of the

Company or any of the Company’s material Subsidiaries other than (A) to correct any

typographical or similar ministerial error, (B) to delete or add any provision required to be so

deleted or added by any applicable law, (C) to cure any ambiguity or to correct or supplement any

provision which may be inconsistent with any provision herein, and (D) to make any immaterial

amendment or modification that is deemed necessary or appropriate by the Board, in each case

set forth in clauses (A) through (D) above, which does not adversely affect the rights or

obligations of any Stockholder, in its capacity as a Stockholder; provided that any such

amendment that reasonably would be expected to disproportionately and adversely affect any

Stockholder, in its capacity as a Stockholder, as compared to the other Stockholders, shall also

require the prior written consent of each Stockholder so affected;¶

(v) [on or prior to [●],] any initial public offering of Company Common Stock

or other class of equity securities of the Company or the entry into any other transaction or

permitting the occurrence of any other event (including any Transfer) that would result in or

require the Company becoming subject to Section 13 of the Exchange Act in connection with the

Company Common Stock or any other class of equity securities of the Company [(it being

understood that, following [●], the actions set forth in this clause (v) shall not require

Stockholder Approval pursuant to this Section 2.2(a))]; provided that this Section 2.2(a)(v) shall

not apply to actions required of the Company pursuant to the Registration Rights Agreement;

(v) (vi) engagement in any material new line of business substantially

unrelated to (A) any business or activity of the Company or any of its Subsidiaries currently

conducted as of the date hereof, or (B) any business or activity that is reasonably similar thereto

or a reasonable extension, development or expansion thereof, or is complementary, incidental,

ancillary or related thereto;

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(vi) (vii) implementation of a new management Equity Incentive Plan or

similar arrangement which could result, when combined with all other Equity Incentive Plans, in

the aggregate issuance of more than [●]five percent ([●]5%) of the Outstanding Company

Common Stock; or

(vii) (viii) entry into any agreement, commitment or arrangement to effect, or

requiring the Company or any of its Subsidiaries to effect, any of the foregoing.

(b) Affiliate Transactions. Excluding transactions in accordance with Section 4.1,

including Section 4.1(e), the Company shall not, and shall cause each of its Subsidiaries not to,

enter into, modify (including by waiver) or terminate any transaction or series of related

transactions, or agreement, with any holder of Company Common Stock that (together with its

Affiliates) holds at least [●]five percent ([●]5%) of the Outstanding Company Common Stock or

with any Director or officer of the Company, or with any Affiliate of any of the foregoing (any

such transaction or series of related transactions or agreements, an “Affiliate Transaction”),

unless (i) a majority of the Directors then serving on the Board who are not party to, or affiliated

with such holder, or Affiliate thereof, that is a party to, such Affiliate Transaction (such majority,

a “Majority of Disinterested Directors”) reasonably determines that such Affiliate Transaction is

on terms that are at least as favorable to the Company and its Subsidiaries as could reasonably be

obtained from an independent third party, (ii) such Affiliate Transaction is approved by a

Majority of Disinterested Directors, and (iii) if and to the extent that an Affiliate Transaction

involves the aggregate payment to or by the Company and its Subsidiaries equal to or in excess

of [five million] dollars ($[5,000,000]), in addition to meeting the requirements in clauses (i) and

(ii), either (x) the Company has obtained an opinion from a nationally recognized accounting or

investment banking firm (to be selected and paid by the Company) that is independent, with no

direct or indirect financial interest in the Company or its Subsidiaries, or in the proposed Affiliate

Transaction or any other party thereto, that the proposed Affiliate Transaction is fair to the

Stockholders from a financial point of view or (y) Stockholder Approval is obtained with respect

to such Affiliate Transaction (disregarding, for such purposes, any holder of Company Common

Stock, or Affiliate thereof, that is a party to such Affiliate Transaction, and the shares of

Company Common Stock held by such Persons). Notwithstanding the foregoing or anything to

the contrary in this Agreement, except as required by applicable law, the Company’s

performance of its obligations under the Backstop Commitment Agreement or in connection with

the consummation of the Rights Offerings, in each case in accordance with the Plan, shall not

require any further consent or approval of the Board or the Stockholders.

Section 2.3 Directors’ Non-exclusive Services. No Director shall be required to

manage the Company as his or her sole and exclusive function and any Director or Stockholder

may have other business interests and may engage in other activities in addition to those relating

to the Company.

Section 2.4 Reimbursement of Expenses. Each Director shall be entitled to

reimbursement from the Company of all expenses reasonably incurred and paid by such Director

in connection with such Director’s services as a Director or otherwise incurred for the benefit of,

or on behalf of, the Company. The Board may establish, from time to time, policies relating to

expense reimbursement (including the types of expenses, such as retained counsel or other

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advisors, that will be reimbursable), which policies shall treat and apply to each Director (other

than any employee of the Company serving as a Director) equally.

ARTICLE III

INFORMATION RIGHTS

Section 3.1 Information Rights of Stockholders; Records Required by the DGCL; 

Right of Inspection.

(a) EachAt any time that the Company is not obligated to file reports under

Section 13 or 15(d) of the Exchange Act and does not file reports required by Section 13 or

15(d) of the Exchange Act as a voluntary filer, each Stockholder, other than any Stockholder

that is a Competitor, shall have the right to receive the following information (which right the

Company may satisfy by providing access to each Stockholder to a confidential website such as

Intralinks and timely posting such information on such website (which website shall have a

system of email notification of new postings and may require confirmation by viewers of the site

of the confidentiality obligations set forth in Section 5.15, a “Secure Site”)), and each

Stockholder may share and discuss such information (along with any other information provided

to Stockholders pursuant to this Agreement and otherwise made available to Stockholders via the

Secure Site) with its Affiliates, directors, officers, partners, managers, stockholders, employees,

investors and advisors as well as any bona fide prospective purchaser of Company Common

Stock that (x) is not a Competitor and (y) has entered into, and delivered to the Company, a

confidentiality agreement substantially in the form set forth on Exhibit B attached hereto, with

such changes as may be approved by the Company in its reasonable discretion, regarding

the treatment of such information (any such Person, a “Permitted Person”) (and for the

avoidance of doubt, at its election, the Company may share and discuss such information with

any prospective purchaser of Company Common Stock):

(i) within [ninety (90)] days of the end of each fiscal year, copies of all annual

financial statements and similar information of the Company and its Subsidiaries as of the end of

such fiscal year, which financial statements shall (wv) include a comparison to the prior fiscal

year results; (xw) be prepared in accordance with GAAP on a private company basis (for the

avoidance of doubt, no SAS 100 review or compliance with any other requirement of Regulation

S-X under the Securities Act shall be required in connection with such financial statements); (yx)

be audited by a nationally recognized accounting firm approved by the Board and accompanied

by a report and opinion thereon by such accounting firm prepared in accordance with generally

accepted auditing standards that is not subject to any qualification as to the scope of such audit or

with respect to accounting principles followed by the Company or any of its Subsidiaries not in

accordance with GAAP; (y) be accompanied by a management discussion and analysis of

financial condition and results of operations with respect to such financial statements (an

“MD&A”); and (z) be certified by the chief financial officer of the Company; and

(ii) for each of the first three (3) fiscal quarters of each fiscal year of the

Company, copies of all unaudited quarterly financial statements and similar information of the

Company and its Subsidiaries as of the end of such fiscal quarter, which financial statements

shall (xw) include year-to-date results and a comparison to the corresponding period in the prior

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fiscal year; (yx) be prepared in accordance with GAAP on a private company basis (for the

avoidance of doubt, no SAS 100 review or compliance with any other requirement of Regulation

S-X under the Securities Act shall be required in connection with such financial statements); (y)

be accompanied by an MD&A; and (z) be delivered no later than [forty-five (45)] days

following the end of each such fiscal quarter.

(b) During the term of the Company’s existence there shall be maintained in the

Company’s principal office or at the office of the Company’s agents and representatives all

records required to be kept pursuant to the DGCL, including (whether or not so required) a

current list of the names, addresses and shares of Company Common Stock held by each of the

Stockholders (including the dates on which each of the Stockholders became a Stockholder),

copies of federal, state and local information or income tax returns for each of the Company’s tax

years, copies of this Agreement and each of the Company’s Charter Documents, including all

amendments thereto and restatements thereof, and correct and complete books and records of

account of the Company. Prior to any termination of the Company’s existence, the Company

shall use all reasonable efforts to ensure that, for a period of six (6) years after any such

termination, such information, to the extent still in existence and available, may be obtained by a

Stockholder’s request in writing to a legal advisor or agent of the Company to be designated prior

to any such termination, with the cost (as reasonably determined by such legal advisor or agent)

of accessing and providing such information being borne by the requesting Stockholder.¶

(c) The Company shall host, and each Stockholder, other than any Stockholder

that is a Competitor, that (together with its Affiliates) holds at least one percent (1%) of the

Outstanding Company Common Stock, shall have access to, quarterly conference calls with

the Company’s chief executive officer and chief financial officer to discuss the status of the

Company and its business and the business of its Subsidiaries, which calls shall include a

reasonable and customary question and answer session (each such call, a “Quarterly Call”).

Quarterly Calls shall be hosted as promptly as reasonably practicable but in any event no

later than five (5) Business Days after furnishing the annual and quarterly reports in

accordance with Section 3.1(a). Other than any Stockholder that is a Competitor, each

Stockholder shall have the right to receive from the Company, within ten (10) days after a

Quarterly Call, an audio recording of such Quarterly Call and copies of all materials

provided by the Company to the attendees thereof in connection with such Quarterly Call

(which right the Company may satisfy by providing access to each Stockholder to a Secure

Site), and each Stockholder may share and discuss such information with any Permitted

Person (and for the avoidance of doubt, at its election, the Company may share and discuss

such information with any prospective purchaser of Company Common Stock).

(d) (c) On written request stating the purpose, a Stockholder that (together with its

Affiliates) holds at least [●]one percent ([●]1%) of the Outstanding Company Common Stock

may make reasonable inquiries of management and examine, at any reasonable time during

business hours, for any proper purpose reasonably related to such Stockholder’s interest as a

Stockholder of the Company, and at the Stockholder’s expense, records of the Company and its

Subsidiaries; provided that the Company may limit access to certain information if the Board

reasonably deems such information to be competitively sensitive with respect to the Stockholder

requesting such access or if granting such access could reasonably be expected in the loss or

impairment of the Company to claim attorney client privilege, work product doctrine, or a similar

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protective privilege or doctrine with respect to the information, or to violate applicable law

(provided that the Company shall use its reasonable best efforts to allow for such access in a way

that would not have any of the foregoing effects). Upon written request by any Stockholder

made to the Company, the Company shall provide or make available to such Stockholder without

charge true copies of this Agreement, the Company’s Charter Documents, and all amendments

thereto and restatements thereof, which documents may be provided to such Stockholder by

posting them on a Secure Site or on EDGAR (as applicable).

Section 3.2 Information Rights of the Company. The Company may from time to

time, but a Stockholder may be compelled to answer no more frequently than once per calendar

quarter (unless, with respect to clause (a) of this Section 3.2, required by applicable law),

reasonably request of any or all Stockholders information (a) needed by the Company to comply

with applicable law or any contract entered into by the Company or any of its Subsidiaries,

including any financing arrangements, and/or (b) regarding such Stockholder’s “accredited

investor” status (within the meaning of Regulation D promulgated under the Securities Act).

ARTICLE IV

PREEMPTIVE RIGHTS; REGISTRATION RIGHTS

Section 4.1 Preemptive Rights. Any issuance of New Securities by the Company or

any of its Subsidiaries, other than an issuance of Exempt Securities, shall be subject to the

following provisions:

(a) Right to Purchase New Securities. Except as otherwise provided in this Section

4.1 (including Section 4.1(e)), the Company hereby grants to each Stockholder that (i) at the time

of the relevant issuance, sale or distribution is an “accredited investor” within the meaning of

Regulation D promulgated under the Securities Act and (ii) together with its Affiliates, holds of

record as of the Preemptive Offer Record Date (as defined below) at least [●]one percent

([●]1%) of the Outstanding Company Common Stock (each such Stockholder, a “Qualified

Stockholder”) the right to purchase its pro rata share (calculated for purposes of this Section 4.1

as the percentage of the Outstanding Company Common Stock so held by all Qualified

Stockholders) of any and all issuances, sales or distributions of New Securities proposed to be

made by the Company or any of its Subsidiaries as set forth herein.

(b) Issuance Notice. The Company shall give each Qualified Stockholder written

notice of the Company’s intention to issue or sell New Securities (as applicable, the “Offered

Securities”) (which notice may be provided by posting the requisite information on a Secure Site

and notifying (or causing notification to be delivered to) each such Qualified Stockholder of such

posting in writing in accordance with Section 5.12) (the “Issuance Notice”), describing the type

and terms of the Offered Securities, the price at which such Offered Securities will be issued or

sold and the general terms upon which the Company proposes to issue or sell such Offered

Securities, including the anticipated date of such issuance, sale or distribution, the general use of

proceeds thereof, a description of both the business purpose of the offering of such Offered

Securities and the dilutive effects, if any, of such offering, the record date for determining

Qualified Stockholders, which, if not specified in the Issuance Notice, shall be the date of the

Issuance Notice (the “Preemptive Offer Record Date”), and such Qualified Stockholder’s pro

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rata share of such Offered Securities. Each Qualified Stockholder shall have ten (10) Business

Days from the date the Issuance Notice is sent to deliver notice (the “Response Notice”) of its

intention to purchase all or any portion of its pro rata share of the Offered Securities, based on

the ratio of the shares of Company Common Stock held by such Qualified Stockholder on the

Preemptive Offer Record Date to the number of shares of Company Common Stock held by all

of the holders of Company Common Stock on the Preemptive Offer Record Date, and stating

therein the quantity of Offered Securities it intends to purchase (each Qualified Stockholder who

delivers a Response Notice hereunder is a “Purchaser” for purposes of this Section 4.1). Such

Response Notice shall constitute the irrevocable agreement of such Purchaser to purchase the

quantity of Offered Securities indicated in the Response Notice at the price and upon the terms

stated in the Issuance Notice; provided, however, that if the Company is proposing to issue, sell

or distribute securities for consideration other than all cash, and subject to the limitations on the

rights set forth in this Section 4.1, the Company shall accept from such Purchaser either non-cash

consideration that is reasonably comparable to the non-cash consideration proposed by the

Company or the cash value of such non-cash consideration, in each case as determined in good

faith by the Board. Any purchase of Offered Securities by a Purchaser pursuant to this Section

4.1 shall be consummated on or prior to the later of (x) the date on which all other Offered

Securities described in the applicable Issuance Notice are issued, sold or distributed and (y) the

second (2nd) Business Day following delivery of the Response Notice by such Purchaser.

(c) Reallotment Right. Each Purchaser shall have the further right to subscribe for all

or any portion of the Offered Securities not subscribed for by Purchasers pursuant to Section

4.1(b) to which it may become entitled to purchase under this Section 4.1(c). The Response

Notice may set forth an amount of additional Offered Securities (“Reallotment Securities”) that

such Purchaser would be willing to purchase in the event that there is any under-subscription for

the entire amount of such Offered Securities. In the event that there is such an

under-subscription, the Company shall apportion the unsubscribed-for Offered Securities to those

Purchasers whose Response Notices specified an amount of Reallotment Securities, which

apportionment shall be made among such specifying Purchasers pro rata based upon the number

of shares of Offered Securities initially subscribed for by each such specifying Purchaser relative

to the number of shares of Offered Securities initially subscribed for by all such specifying

Purchasers pursuant to Section 4.1(b); provided, however, that in no event will any such

specifying Purchaser be obligated to purchase any amount of Reallotment Securities that is

greater than the amount of additional Offered Securities that such specifying Purchaser stated

that it would be willing to purchase in the Response Notice of such specifying Purchaser.

(d) Sale to Other Persons. The Company shall have sixty (60) days from the date of

the applicable Issuance Notice to consummate an issuance, sale or distribution of any Offered

Securities which the Qualified Stockholders have not elected to purchase pursuant to Section

4.1(b) to other Persons at a price and on terms and conditions not less favorable to the Company

than those contained in the Issuance Notice. In the event that the sale of Offered Securities is not

fully consummated within such sixty (60)-day period, then the Company shall be obligated once

again to offer the purchase rights set forth in this Section 4.1 before it may subsequently sell such

Offered Securities (provided that such sixty (60)-day period shall automatically toll, but not for

longer than one-hundred and eighty (180) days to the extent regulatory approval would be

required for such Person to acquire such Offered Securities).

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(e) Exempt Securities. Notwithstanding the foregoing provisions of this Section 4.1,

Qualified Stockholders shall not have the right to participate in the issuance, sale or distribution

of any New Securities which are otherwise authorized to be issued in accordance with this

Agreement (i) if such New Securities were issued as consideration in any merger, consolidation

or combination with or acquisition of securities or assets of another Person in exchange for New

Securities, (ii) if made upon conversion or exercise of any rights, convertible securities, options

or warrants to purchase Company Common Stock or other capital stock of the Company, (iii) if

made by any Subsidiary of the Company to the Company or any of its direct or indirect wholly

owned Subsidiaries, (iv) if made as securities which are the subject of a registration statement

being filed under the Securities Act pursuant to a Qualified IPO, (v) if made to Directors,

officers, employees or consultants as compensation pursuant to any Equity Incentive Plans or as

compensation for services rendered or to be rendered to the Company or any of its Subsidiaries

or otherwise due to his or her status as a service provider to the Company or any of its

Subsidiaries, (vi) if such New Securities were issued in connection with the Backstop

Commitment Agreement, or in connection with the consummation of the Rights Offerings in

accordance with the Plan, (vii) if such New Securities were issued in connection with any joint

venture, strategic alliance or partnership or similar transaction or arrangement (in each case as

determined by the Board acting in good faith) or (viii) if such New Securities were issued

pursuant to any pro rata stock split or stock dividend (the New Securities described in the

foregoing clauses (i) through (viii), “Exempt Securities”).

(f) Accelerated Buyer Transactions. Nothing in this Section 4.1 shall prevent the

Company or its Subsidiaries from issuing or selling to any Person (the “Accelerated Buyer”) any

New Securities without first complying with the provisions of this Section 4.1; provided that in

connection with such issuance or sale (i) the Company gives reasonably prompt notice to the

Qualified Stockholders of such issuance (after such issuance has occurred), which notice shall

describe in reasonable detail the New Securities purchased by the Accelerated Buyer and the

purchase price thereof and (ii) the Accelerated Buyer and the Company enable the Qualified

Stockholders to effectively exercise their respective rights under this Section 4.1 with respect to

their purchase of their pro rata share of the New Securities issued to the Accelerated Buyer

within fifteen (15) Business Days after receipt of the notice by the Qualified Stockholder of such

issuance to the Accelerated Buyer on the terms specified in this Section 4.1. The Preemptive

Offer Record Date for such issuance shall be the date such New Securities are issued to the

Accelerated Buyer.

Section 4.2 Registration Rights. The Stockholders shall have the registration rights

set forth the Registration Rights Agreement.

ARTICLE V

MISCELLANEOUS

Section 5.1 Complete Agreement. This Agreement, the Plan and the other

agreements expressly referenced in this Agreement and the Plan constitute the complete and

exclusive statement of agreement among the Stockholders with respect to the subject matter

hereof. This Agreement supersedes all prior written and oral statements by and among the

Stockholders or any of them, and except as otherwise specifically contemplated by this

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Agreement, no representation, statement, or condition or warranty not contained in this

Agreement will be binding on the Stockholders or the Company or have any force or effect

whatsoever.

Section 5.2 Certain Actions. The Company by its execution hereof acknowledges

that it has actual notice of the terms of this Agreement, consents hereto and hereby covenants

with each of the Stockholders that it will at all times during the term of this Agreement be

governed by the terms and provisions hereof in carrying out its business and affairs and,

accordingly, shall give or cause to be given such notices, execute or cause to be executed such

documents and do or cause to be done all such acts, matters and things as may from time to time

be necessary or required to carry out the terms and intent hereof.

Section 5.3 Governing Law. This Agreement and the rights of the parties hereunder

will be governed by, interpreted, and enforced in accordance with the laws of the State of

Delaware, without reference to conflicts of law principles that would require the application of

the laws of another jurisdiction.

Section 5.4 No Assignment. No party hereto may assign any of its respective rights or

delegate any of its respective obligations under this Agreement, and any attempted assignment or

delegation in violation of the foregoing shall be null and void; provided, that Brigade, 

Oppenheimer and/or Searchlight may assign or delegate their respective rights and 

obligations under this Agreement to their respective Affiliates and funds, clients and 

accounts managed by such Affiliates.

Section 5.5 Binding Effect. Subject to the provisions of this Agreement relating to

transferability or assignment, this Agreement will be binding upon and inure to the benefit of the

Company and each of the Stockholders, and their respective heirs, devisees, spouses, distributees,

representatives, successors and permitted assigns. For the avoidance of doubt, no joinder to

this Agreement shall be required in connection with any permitted Transfer or assignment.

Section 5.6 Severability. If any provision of this Agreement is held to be illegal,

invalid, or unenforceable under any present or future laws applicable to the Company effective

during the term of this Agreement, such provision will be fully severable; this Agreement will be

construed and enforced as if such illegal, invalid, or unenforceable provision had never

comprised a part of this Agreement; and the remaining provisions of this Agreement will remain

in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision

or by its severance from this Agreement.

Section 5.7 No Partition. The parties acknowledge that the assets and properties of

the Company are not and will not be suitable for partition. Thus, each Stockholder (on behalf of

such Stockholder and their respective successors and assigns) hereby irrevocably waives any and

all rights that such Stockholder may have to maintain any action for partition of such assets and

properties, if any.

Section 5.8 Additional Documents and Acts. Each party hereto agrees to execute

and deliver such additional documents and instruments and to perform such additional acts as

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may be reasonably necessary or appropriate to effectuate, carry out, and perform all of the terms,

provisions, and conditions of this Agreement and the transactions contemplated hereby.

Section 5.9 No Employment Rights. Nothing in this Agreement shall confer upon

any Person any right to be employed or to continue employment by the Company or any of its

Affiliates, or interfere in any manner with any right of the Company or any of its Affiliates to

terminate such employment at any time.

Section 5.10 Amendments; Termination of Equity Rights.

(a) All amendments to this Agreement will be in writing and subject to receipt of

Stockholder Approval and approval by any other Stockholders whose approval is required

pursuant to Section 5.10(b).

(b) Any amendment or other modification that would adversely affect any

Stockholder’s rights set forth in Section 2.12.1, Section 2.3, Section 2.4 or Section 3.1 shall

require the written consent of each such Stockholder adversely affected; provided, however, that

any amendment to Section 3.1 that only provides for a reasonable extension of time for the

delivery of the financial statements or the other information to be delivered pursuant thereto shall

only require a Stockholder Approval. If any amendment or other modification would adversely

affect the rights and obligations of any Stockholder in a manner disproportionate relative to any

other Stockholder or would subject a Stockholder to any obligation or liability not shared by each

of the other Stockholders, then such amendment or other modification shall not be effective

without the written consent of such Stockholder.

Section 5.11 No Waiver. No delay, failure or waiver by any party to exercise any right

or remedy under this Agreement, and no partial or single exercise of any such right or remedy,

will operate to limit, preclude, cancel, waive or otherwise affect such right or remedy, nor will

any single or partial exercise of such right or remedy limit, preclude, impair or waive any further

exercise of such right or remedy or the exercise of any other right or remedy. No waiver of or 

consent to any departure from any provision of this Agreement shall be effective unless 

signed in writing by the party entitled to the benefit thereof, in which case such waiver 

shall bind the successors and permitted Transferees and assigns of such party.

Section 5.12 Notices. Except as otherwise provided elsewhere in this Agreement

regarding notices by electronic mail or other electronic means to Stockholders and the Board and

regarding proxies, all notices, requests, demands and other communications required or permitted

to be given hereunder shall be in writing and shall be delivered (a) by personal delivery, (b) by a

nationally recognized overnight courier service, (c) by telefacsimile or electronic mail, using

equipment that provides written confirmation of delivery, or (d) by deposit in the U.S. Mail,

postage prepaid, registered or certified mail, return receipt requested, to the Company at its

principal executive office and to any Stockholder at the address then shown as the current

address of such Stockholder specified on the Stockholder Registry. Any such notice shall be

deemed to have been given on the date so delivered, if delivered personally, by overnight courier

service or by electronic mail; or if by telefacsimile, on the first (1st) calendar day following the 

transmission of such facsimile; or if mailed, four (4) calendar days after mailing. Any party may,

at any time by giving five (5) calendar days’ prior written notice to the Company, specify a

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different address (physical or electronic) or telefacsimile number or electronic mail address for

notice purposes by sending notice thereof in the foregoing manner. Any notice required to be

given by the Company to Stockholders, including pursuant to Section 228(e) of the DGCL, may

be given by posting to a Secure Site (with email notification of such posting to each

Stockholder), and shall be deemed to be delivered on the date such posting is made.

Section 5.13 Consent to Jurisdiction; WAIVER OF JURY TRIAL.

(a) Consent to Jurisdiction. The Company and each Stockholder (i) irrevocably

submit to the exclusive jurisdiction of any state court in the State of Delaware, and the United

States District Court for the District of Delaware (and the appropriate appellate courts), for the

purposes of any suit, action or other proceeding arising out of this Agreement and (ii) agree to

commence any such action, suit or proceeding either in the United States District Court for the

District of Delaware or if such suit, action or other proceeding may not be brought in such court

for jurisdictional reasons, in any state court in the State of Delaware. Notwithstanding the

foregoing, any party hereto may commence an action, suit or proceeding with any governmental

body anywhere in the world for the sole purpose of seeking recognition and enforcement of a

judgment of any court referred to in the first sentence of this Section 5.13(a). The Company and

each Stockholder further (x) agree that service of any process, summons, notice or document by

U.S. registered mail to such party’s respective address set forth on the Stockholder Registry (or in

the case of the Company, at the Company’s principal office) shall be effective service of process

for any action, suit or proceeding in Delaware with respect to any matters to which it has

submitted to jurisdiction in this Section 5.13(a) and (y) irrevocably and unconditionally waive

any objection to the laying of venue of any action, suit or proceeding arising out of this

Agreement in (A) any state court in the State of Delaware, or (B) the United States District Court

for the District of Delaware, and hereby further irrevocably and unconditionally waive and agree

not to plead or claim in any such court that any such action, suit or proceeding brought in any

such court has been brought in an inconvenient forum.

(b) WAIVER OF JURY TRIAL. THE COMPANY AND EACH STOCKHOLDER

HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,

ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION

DIRECTLY OR INDIRECTLY ARISING OUT OF, INVOLVING OR OTHERWISE IN

RESPECT OF THIS AGREEMENT OR ANY SUCH STOCKHOLDER’S OWNERSHIP OF

COMPANY COMMON STOCK. THE COMPANY AND EACH STOCKHOLDER (I)

CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE COMPANY

OR ANY STOCKHOLDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT

THE COMPANY OR SUCH STOCKHOLDER WOULD NOT, IN THE EVENT OF

LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II)

ACKNOWLEDGE THAT THE COMPANY AND EACH STOCKHOLDER HAVE BEEN

INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE

MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.13(B).

Section 5.14 No Third Party Beneficiary. Except as expressly provided in Section

5.5, this Agreement is made solely and specifically among and for the benefit of the parties

hereto (including each Stockholder), and their respective successors and permitted assigns, and

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no other Person will have any rights, interest, or claims hereunder or be entitled to any benefits

under or on account of this Agreement as a third party beneficiary or otherwise.

Section 5.15 Confidentiality.

(a) The terms of this Agreement, the identity of any Person with whom the Company

may be holding discussions with respect to any investment, acquisition, disposition or other

transaction, any information disclosed to or received by any Stockholder pursuant to Section 3.1

or Exhibit B and all other business, financial or other information relating directly to the conduct

of the business and affairs of the Company or its Subsidiaries or the relative or absolute rights or

interests of any of the Stockholders (collectively, the “Confidential Information”) that has not

been publicly disclosed by the Company is confidential and proprietary information of the

Company, the disclosure of which may cause irreparable harm to the Company and the

Stockholders. Accordingly, each Stockholder represents that it has not and agrees that it will not

and will direct its stockholders, partners, directors, officers, agents, representatives, attorneys,

accountants, advisors, employees, and Affiliates (collectively, its “Representatives”) not to,

disclose to any Person any Confidential Information or confirm any statement made by third

Persons regarding Confidential Information until the Company has publicly disclosed the

Confidential Information; provided, however, that any Stockholder (or its Affiliates) may

disclose such Confidential Information: (i) to the extent required by law (it being specifically

understood and agreed that anything required to be set forth in a registration statement or any

other document required to be filed pursuant to law will be deemed required by law, so long as

the requirement to file such registration statement does not arise primarily in connection with a

Transfer of securities of the Company), regulation, the listing standards of any national securities

exchange or required or requested by any governmental authority having applicable jurisdiction,

(ii) to the extent that the Confidential Information is publicly known or subsequently becomes

publicly known other than through a breach of this Section 5.15(a) by such Stockholder, (iii) to

the extent that the Confidential Information is already in possession of, or is subsequently

received by, a Stockholder from a third party not known by the Stockholder to be subject to an

obligation of confidentiality owed to the Company, or (iv) to a prospective Transferee that (x) is

not known by such Stockholder to be a Competitor and (y) has entered into reasonable

confidentiality arrangements enforceable by the Company as described in Section 3.1(a), subject

to the terms and conditions of such arrangements. Notwithstanding the foregoing, each

Stockholder may disclose Confidential Information to its Representatives (i) who such

Stockholder determines in good faith need to know such information for the sole purpose of

advising such Stockholder and (ii) who are informed by such Stockholder of the confidential

nature of such information; provided that each Stockholder will be responsible for any violation

of this Section 5.15 by any of its Representatives as if they were parties hereto.

(b) Each Stockholder hereby consents in advance to any motion for any protective

order brought by the Company or any other Stockholder represented as being intended by the

movant to implement the purposes of this Section 5.15; provided that, ifIf a Stockholder receives

a request to disclose any Confidential Information under the terms of a valid and effective order

issued by a court or governmental agency and the order was not sought by or on behalf of or

consented to by such Stockholder, then such Stockholder may disclose the Confidential

Information to the extent required if the Stockholder as promptly as practicable (i) notifies the

Company of the existence, terms and circumstances of the order, (ii) consults in good faith with

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the Company on the advisability of taking legally available steps to resist or to narrow the order

and cooperates with the reasonable requests of the Company, at the Company’s sole cost and

expense, in connection with the foregoing, and (iii) if disclosure of the Confidential Information

is required, exercises its commercially reasonable efforts to obtain a protective order or other

reliable assurance that confidential treatment will be accorded to the portion of the disclosed

Confidential Information that the Company designates. The cost (including attorneys’ fees and

expenses) of obtaining a protective order covering Confidential Information designated by the

Company will be borne by the Company.

(c) The covenants contained in this Section 5.15 will survive the Transfer of

Company Common Stock of any Stockholder and the termination of this Agreement; provided,

however, that this Section 5.15 will cease to be of any force and effect on the second (2nd)

anniversary of the termination of this Agreement.

Section 5.16 Business Opportunities. To the fullest extent permitted by Section

122(17) of the DGCL (or any successor provision) and except as may be otherwise expressly

agreed in writing by the Company and any applicable Consenting Creditor (as defined in the

Plan) (each, an “Investor” and together the “Investors”), the Company, on behalf of itself and its

Subsidiaries, renounces and waives any interest or expectancy of the Company and its

Subsidiaries in, or in being offered an opportunity to participate in, directly or indirectly, any

potential transactions, matters or business opportunities (including, without limitation, any

business activities or lines of business that are the same as or similar to those pursued by, or

competitive with, the Company or any of its Subsidiaries or any dealings with customers or

clients of the Company or any of its Subsidiaries) that are from time to time presented to any of

the Investors or any of their respective Representatives even if the transaction, matter or

opportunity is one that the Company or its Subsidiaries might reasonably be deemed to have

pursued or had the ability or desire to pursue if granted the opportunity to do so and no such

person shall be liable to the Company or any of its Subsidiaries or its Affiliates for breach of any

fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person

pursues, acquires or participates in such business opportunity, directs such business opportunity

to another person or fails to present such business opportunity, or information regarding such

business opportunity, to the Company or its Subsidiaries. Without limiting the foregoing

renunciation, the Company acknowledges that certain Investors are in the business of making

investments in, and have investments in, other businesses similar to and that may compete with

the Company’s businesses (“Competing Businesses”), and agrees that each such Investor shall

have the right to make additional investments in or have relationships with other Competing

Businesses independent of its investment in the Company. Any person purchasing or otherwise

acquiring any interest in any shares of capital stock of the Company shall be deemed to have

notice of and consented to the provisions of this Section 5.16. Neither the alteration, amendment

or repeal of this Section 5.16, nor the adoption of any provision of this Agreement inconsistent

with this Section 5.16, nor, to the fullest extent permitted by the laws of the State of Delaware,

any modification of law, shall eliminate or reduce the effect of this Section 5.16 in respect of any

business opportunity first identified or any other matter occurring, or any cause of action, suit or

claim that, but for this Section 5.16, would accrue or arise, prior to such alteration, amendment,

repeal, adoption or modification. If any provision or provisions of this Section 5.16 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

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the remaining provisions of this Section 5.16 (including, without limitation, each portion of any

paragraph of this Section 5.16 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) to the fullest extent possible, the provisions of this

Section 5.16 (including, without limitation, each such portion of any paragraph of this Section

5.16 containing any such provision held to be invalid, illegal or unenforceable) shall be construed

so as to permit the Company to protect its Representatives from personal liability in respect of

their good faith service to or for the benefit of the Company to the fullest extent permitted by

law. This Section 5.16 shall not limit any protections or defenses available to, or indemnification

or advancement rights of, any director or officer of the Company under this Agreement, the

Charter Documents of the Company or applicable law.

Section 5.17 Cumulative Remedies; Specific Performance.

(a) The rights and remedies of any party hereto as set forth in this Agreement are not

exclusive and are in addition to any other rights and remedies now or hereafter provided by law

or at equity.

(b) The parties hereto agree and acknowledge that money damages may not be an

adequate remedy for any breach of the provisions of this Agreement and that, in addition to any

other rights and remedies at law or in equity existing in its favor, any non-breaching party hereto

shall be entitled to seek specific performance and/or other injunctive relief from any court of law

or equity of competent jurisdiction (without posting any bond or other security) in order to

enforce or prevent violation of the provisions of this Agreement.

Section 5.18 Exhibits and Schedules. All Exhibits and Schedules attached hereto are

hereby incorporated by reference into, and made a part of, this Agreement.

Section 5.19 Interpretation. The titles and section headings set forth in this

Agreement are for convenience only and shall not be considered as part of agreement of the

parties hereto. When the context requires, the plural shall include the singular and the singular

the plural, and any gender shall include all other genders or neuter. The words “include,”

“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

No provision of this Agreement shall be interpreted or construed against any party because such

party or its counsel was the drafter thereof. Any reference to the DGCL or other statutes or laws

will include all amendments, modifications, or replacements of the specific sections and

provisions concerned. Numbered or lettered articles, sections, and subsections herein contained

refer to articles, sections, and subsections of this Agreement unless otherwise expressly stated.

Section 5.20 Termination. This Agreement will be automatically effective as of the

Effective Date and will continue in effect thereafter until the earlier to occur of (a) its termination

by the unanimous written consent of all Stockholders, (b) the dissolution, liquidation or winding

up of the Company and, (c) the occurrence of a Public Listing and (d) the date that is twenty

(20) years after the date hereof. This Article V shall survive any termination of this

Agreement.

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SCHEDULE I

COMPETITORS

[To be supplied.]

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EXHIBIT A

DEFINITIONS

As used in this Agreement, the following terms will have the following meanings, and all

section references shall be to sections in this Agreement unless otherwise provided:

“Accelerated Buyer” has the meaning set forth in Section 4.1(e).

“Affiliate(s)” means with respect to any Person, (i) any other Person that directly or

indirectly through one or more intermediaries controls, or is controlled by, or is under common

control with, such Person (for the purposes of this definition, “control” (including, with

correlative meanings, the terms “controlling,” “controlled by” and “under common control

with”), as used with respect to any Person, means the possession, directly or indirectly, of the

power to direct or cause the direction of the management or policies of such Person, whether

through the ownership of voting securities, by agreement or otherwise); provided, however, that

neither the Company nor any of its controlled Affiliates shall be deemed an Affiliate of any of the

Stockholders (and vice versa), (ii) if such Person is an investment fund, an Affiliate shall include

any other investment fund the primary investment advisor to which, or an Affiliate of such

primary investment advisor, is the primary investment advisor to such Person and (iii) if such

Person is a natural Person, any Family Member of such natural Person.

“Affiliate Transaction” has the meaning set forth in Section 2.2(b).

“Agreement” has the meaning set forth in the preamble.

“At-Large Directors” has the meaning set forth in Section 2.1(b)(vi).

“Backstop Commitment Agreement” has the meaning set forth in the Plan.

“Board” means the board of directors of the Company.

“Board Designators” has the meaning set forth in Section 2.1(b)(iv)means Brigade,

Oppenheimer and Searchlight, collectively.

“Brigade” has the meaning set forth in Section 2.1(b)(ii).means Brigade Capital

Management, LP, its Affiliates, and any fund, account or client managed or advised by any

such Person from time to time.

“Brigade Director” has the meaning set forth in Section 2.1(b)(ii).

“Business Day” means any day other than a Saturday, Sunday or date on which

commercial banks in New York, New York are authorized by law to close for business.

“Charter Documents” means, with respect to the Company, the certificate of

incorporation and bylaws of the Company, as the same may be amended, supplemented,

modified or restated from time to time, and with respect to any other Person, the articles of

incorporation, bylaws, certificate of incorporation, certificate of formation, operating agreement,

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partnership agreement or any other similar incorporating or formation documents of such Person,

as the same may be amended, supplemented, modified or restated from time to time.

“Class I Directors” has the meaning set forth in Section 2.1(c).

“Class II Directors” has the meaning set forth in Section 2.1(c).

“Class III Directors” has the meaning set forth in Section 2.1(c).

“Company” has the meaning set forth in the preamble.

“Company Common Stock” means the common stock, par value $[0.01] per share, of the

Company.

“Competing Businesses” has the meaning set forth in Section 5.16.

“Competitor” means any of the Persons set forth on Schedule I attached hereto and any of

their controlled Affiliates, which schedule may be modified by the Board in good faith from time

to time.

“Confidential Information” has the meaning set forth in Section 5.15(a).

“Debtors” has the meaning set forth in the recitals.

“Derivative Securities” means direct or indirect options, rights, warrants or securities

convertible into or exercisable or exchangeable for, any Company Common Stock or any other

capital stock of the Company.

“DGCL” means the Delaware General Corporation Law, as the same may be amended

from time to time. All references herein to sections of the DGCL shall include any

corresponding provisions of succeeding law.

“Director” means any member of the Board (other than any Person (if any) effecting

observer rights on the Board).¶

“EDGAR” means the Electronic Data Gathering, Analysis and Retrieval System of

the SEC.

“Effective Date” has the meaning set forth in the preamble.

“Equity Incentive Plans” means any equity incentive plans of the Company for Directors

or officers or employees of the Company, including the Management Incentive Plan (as defined

in the Plan).

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to

time.

“Executive Director” has the meaning set forth in Section 2.1(b)(i).

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“Exempt Securities” has the meaning set forth in Section 4.1(d).

“Family Member” means, with respect to any natural Person, such Person’s spouse and

descendants (whether or not adopted) and any trust, family limited partnership or limited liability

company that is and remains solely for the benefit of such Person’s spouse and/or descendants.

“GAAP” means the generally accepted accounting principles as in effect from time to

time in the U.S.

“Investor Directors” has the meaning set forth in Section 2.1(b)(iv).

“Investor(s)” has the meaning set forth in Section 5.16.

“IPO” means the first public offering of the Company pursuant to an effective

Registration Statement under the Securities Act (other than on Forms S-4, S-8 or successors to

such forms), covering the offer and sale of capital stock of the Company.

“Issuance Notice” has the meaning set forth in Section 4.1(b).

“Majority of Disinterested Directors” has the meaning set forth in Section 2.2(b).¶

“MD&A” has the meaning set forth in Section 3.1(a)(i).

[“Minimum Designating Ownership” means (i) with respect to Brigade, [●] percent

([●]%) of Outstanding Company Common Stock, (ii) with respect to Oppenheimer, [●] percent

([●]%) of Outstanding Company Common Stock and (iii) with respect to Searchlight, [●] percent

([●]seven and one-half percent (7.5%) of Outstanding Company Common Stock.]

“Necessary Action” means, with respect to a specified result, all actions that are

permitted by applicable law and reasonably necessary to cause such result, including (i) voting or

providing a written consent or proxy with respect to Company Common Stock, (ii) causing the

adoption of Stockholders’ resolutions and amendments to the applicable Charter Documents, (iii)

causing the Directors (to the extent such Directors were nominated or designated by the Person

obligated to undertake the Necessary Action, and subject to any fiduciary duties that such

Directors may have as directors of the Company) to act in a certain manner or causing them to be

removed in the event they do not act in such a manner, (iv) executing agreements and

instruments and (v) making, or causing to be made, with governmental, administrative or

regulatory authorities, all filings, registrations or similar actions that are required to achieve such

result.

“New Securities” means Company Common Stock and other capital stock and rights,

convertible securities, options or warrants to purchase Company Common Stock or other capital

stock issued subsequent to the Effective Date, whether or not authorized as of the Effective Date.

“Oppenheimer” has the meaning set forth in Section 2.1(b)(iii).means

OppenheimerFunds, Inc., its Affiliates, and any fund, account or client managed or advised

by any such Person from time to time.

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“Oppenheimer Director” has the meaning set forth in Section 2.1(b)(iii).

“Outstanding Company Common Stock” means, as of any given time, the then issued

and outstanding Company Common Stock, excluding (unless calculated on a fully diluted basis)

any Derivative Securities and any unvested or restricted Company Common Stock issued

pursuant to an Equity Incentive Plan.¶

“Permitted Person” has the meaning set forth in Section 3.1(a).

“Person” means an individual, partnership, limited liability company, corporation, joint

venture, trust, business trust, association, or similar entity, whether domestic or foreign, and the

heirs, executors, legal representatives, successors and assigns of such entity where the context

requires.

“Plan” has the meaning set forth in the recitals.

“Preemptive Offer Record Date” has the meaning set forth in Section 4.1(b).

“Public Listing” means the listing of Company Common Stock on a U.S. national

securities exchange registered with the SEC (whether in connection with an initial public offering

of Company Common Stock or otherwise).

“Purchaser” has the meaning set forth in Section 4.1(b).

“Qualified IPO” means a bona fide, marketed underwritten IPO after which closing such

capital is quoted on the NASDAQ National Market or listed or quoted on the New York Stock

Exchange or other national securities exchange acceptable to the Board and meeting one of the

following two criteria: (i) the aggregate cash proceeds (net of underwriting discounts,

commissions and offering expenses) of such offering to the Company exceed [one hundred

million] dollars ($[100,000,000]), or (ii) at least [twenty] percent ([20]%) of the Outstanding

Company Common Stock (calculated on a fully diluted basis, and for purposes of such

calculation treating Company Common Stock issued in the IPO as Outstanding Company

Common Stock) shall have been issued or sold to the public in connection with such IPO.

“Qualified Stockholder” has the meaning set forth in Section 4.1(a).

“Quarterly Call” has the meaning set forth in Section 3.1(c).¶

“Reallotment Securities” has the meaning set forth in Section 4.1(c).

“Registration Rights Agreement” means that certain registration rights agreement, dated

as of [●], 2017, by and among the Company and the investors party thereto.

“Registration Statement” means any registration statement of the Company under the

Securities Act which permits the public offering of any of the Registrable Securities (as defined

in the Registration Rights Agreement), including the prospectus, amendments and supplements

to such registration statement, including post-effective amendments, all exhibits and all material

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incorporated by reference or deemed to be incorporated by reference in such registration

statement.

“Replacement Brigade Director” has the meaning set forth in Section 2.1(e).

“Replacement Oppenheimer Director” has the meaning set forth in Section 2.1(e).

“Replacement Directors” has the meaning set forth in Section 2.1(e).

“Representatives” has the meaning set forth in Section 5.15(a).

“Response Notice” has the meaning set forth in Section 4.1(b).

“Rights Offerings” has the meaning set forth in the Plan.

“Searchlight” has the meaning set forth in Section 2.1(b)(iv).Searchlight” means

Searchlight Capital Partners, LP, its Affiliates, and any fund, account or client managed or

advised by any such Person from time to time.

“Searchlight Director” has the meaning set forth in Section 2.1(b)(iv).

“SEC” means the Securities and Exchange Commission and any governmental body or

agency succeeding to the functions thereof.

“Secure Site” has the meaning set forth in Section 3.1(a).

“Securities Act” means the Securities Act of 1933, as amended.

“Stockholder” means each Person (other than the Company) who shall be a party to or

bound by this Agreement, so long as such Person shall “beneficially own” (as such term is

defined in Rule 13d-3 of the Exchange Act) any Company Common Stock.

“Stockholder Approval” means the affirmative vote or written consent of the holders of

at least a majority of the shares of Outstanding Company Common Stock (subject to any

adjustments or limitations on voting as set forth in the Company’s Charter Documents).

“Stockholder Registry” means a register of the Company indicating: (i) with respect to

each issuance of Company Common Stock or other capital stock of the Company, the date of

such issuance, the number of shares issued and the Stockholder to whom such shares were issued

and (ii) with respect to each transfer of Company Common Stock or other capital stock of the

Company, the date of such Transfer, the number of shares Transferred and the identity of each of

the transferor and the transferee(s) thereof.

“Subsidiary” means any Person the majority of the equity of which, directly, or indirectly

through one or more other Persons, (a) the Company has the right to acquire or (b) is owned or

controlled by the Company. As used in this definition, “control,” including, its 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

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ownership of equity, by contract or otherwise). For the avoidance of doubt, Subsidiary shall

include any Person that is included in the Company’s consolidated group for purposes of

preparing the Company’s consolidated financial statements in accordance with GAAP.

“Transfer” means the sale, sale of any option or contract to purchase, purchase of any

option or contract to sell, grant of any option, right or warrant to purchase, assignment, loan,

offer, transfer, exchange or other disposition of any shares of Company Common Stock, whether

or not for value, and whether voluntarily, by operation of law or otherwise, and includes

foreclosure.

“U.S.” means the United States of America.

Exhibit A – Page 6

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EXHIBIT B

FORM OF 

CONFIDENTIALITY AGREEMENT

[●]

[●]

[●]

[INSERT DATE]

[INSERT NAME OF POTENTIAL TRANSFEREE]

[INSERT ADDRESS OF POTENTIAL TRANSFEREE]

Ladies and Gentlemen:

In connection with the consideration by [INSERT NAME OF POTENTIAL

TRANSFEREE] (“you” or “your”) of a potential investment in shares of the common stock, par

value $0.01 per share, of [Giraffe New Holding Co., Inc.], a Delaware corporation (the

“Company” and together with you, collectively, the “Parties” and each individually, a “Party”),

or other securities of the Company (the “Transaction”), certain affiliates or stockholders of the

Company, the Company or their respective representatives have furnished or may furnish you

and your Representatives (as hereinafter defined) with non-public information regarding the

Company, including, without limitation, information concerning the Company’s financial and

operational performance, properties, prospects, activities and plans. You recognize and

acknowledge that such information furnished or to be furnished to you and/or your

Representatives in the future (whether oral or written) is proprietary to the Company and may

include trade secrets or other highly confidential non-public business information the disclosure

of which could harm the Company. In consideration for, and as a condition of, such non-public

information being furnished to you (and your agents, representatives, attorneys, accountants,

advisors, directors, officers, employees and affiliates, collectively, your “Representatives”), you

agree to treat any and all information concerning the Company or any of its subsidiaries that has

been or is to be furnished to you or your Representatives (regardless of the manner in which it is

furnished, including, without limitation, in written or electronic format or orally, gathered by

visual inspection or otherwise) by or on behalf of the Company or any of its affiliates or

stockholders, together with any documents you create that contain or are based upon any such

information, in whole or in part (collectively, “Company Information”), in accordance with the

provisions of this letter agreement (this “Agreement”).

The term “Company Information” does not include information that you can demonstrate:

(i) is obtained by you or your Representatives from a third party, who, after reasonable inquiry, is

not known by you to be bound by any duty of confidentiality to or confidential agreement with

the Company or any other Person (as defined below) with respect to Company Information or is

otherwise prohibited from transmitting the information to you by a contractual, legal, fiduciary or

other obligation to the Company or any other Person; (ii) is or becomes part of the public domain

(other than through a breach of this Agreement by you or any of your Representatives); (iii) is

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independently ascertained or developed by or for you or your Representatives or any third party

without use of or reference to Company Information; or (iv) is approved for public release by

written authorization of the Company. For purposes of this Agreement, the term “Person” shall

be broadly interpreted to include, without limitation, any individual, partnership, limited liability

company, corporation, joint venture, trust, business trust, association or similar entity, whether

domestic or foreign, and the heirs, executors, legal representatives, successors and assigns of

such entity where the context requires.

1. You hereby agree that you and your Representatives will, except to the extent

required by applicable law or legal process, (a) keep the Company Information strictly

confidential, (b) not disclose any of the Company Information in any manner whatsoever without

the prior written consent of the Company and (c) not use the Company Information for any

purpose other than considering and negotiating the Transaction; provided, however, that you may

disclose any of such information to your Representatives (i) who need to know such information

for the sole purpose of advising you and (ii) who are informed by you of the confidential nature

of such information; provided, further, that you will (x) be responsible for any violation of this

Agreement by any of your Representatives as if they were parties hereto and (y) provide the

Company with the names of any your Representatives that receives Company Information. You

agree to promptly notify the Company in writing of any unauthorized use or disclosure of the

Company Information and such notice shall include a detailed description of the circumstances of

the disclosure and the Persons involved.

2. In the event that you or any of your Representatives are required by applicable law

or legal process to disclose any of the Company Information, you will promptly notify (except

where such notice would be legally prohibited) the Company in writing so that the Company may

seek a protective order or other appropriate remedy and (except to the extent legally prohibited)

will reasonably cooperate with the Company (at the Company’s expense) to limit the disclosure

to the greatest extent possible consistent with such applicable law or legal process, including,

without limitation, in appropriate circumstances, seeking reliable assurances that confidential or

“attorneys eyes only” treatment shall be accorded the Company Information. Any such Company

Information that is (x) not required to be disclosed or (y) accorded confidential treatment shall

continue to be Company Information to which this Agreement shall continue to apply. You

acknowledge and agree that, for purposes of this Agreement, there shall be no “applicable law”

requiring you to disclose any Company Information solely by virtue of the fact that, absent such

disclosure, you would be prohibited from purchasing, selling, or engaging in derivative

transactions with respect to, any securities of the Company or otherwise proposing or making an

offer to do any of the foregoing.

3. All Company Information shall remain the property of the Company. Neither you

nor any of your Representatives shall by virtue of disclosure to you or any of your

Representatives, or your or any of your Representative’s use, of any Company Information

acquire any rights with respect thereto, all of which rights (including, without limitation, all

intellectual property rights) shall remain exclusively with the Company.

4. If you determine that you do not wish to proceed with a Transaction, you will

promptly advise the Company of that decision. As soon as possible upon the Company’s written

request, you and your Representatives shall destroy (or at the Company’s option (in its sole

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discretion) return to the Company) all Company Information that has been disclosed to you or

any of your Representatives, except for any such Company Information stored on electronic

backup media to the extent that such information cannot be expunged without unreasonable

effort. Upon returning or destroying such Company Information, you shall provide written notice

to the Company certifying compliance with the foregoing sentence. Notwithstanding the

provisions of this paragraph, you acknowledge and agree that this Agreement will continue to

apply to any returned, held, retained or destroyed Company Information on the terms set forth

herein.

5. You acknowledge and agree that all Company Information is furnished on an “AS

IS” basis, without warranty of any kind. THE COMPANY AND ITS AFFILIATES

EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER

EXPRESS OR IMPLIED, REGARDING THE COMPANY INFORMATION, INCLUDING,

WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF

MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR

PURPOSE.

6. You acknowledge that an award of money damages would be inadequate for any

breach of this Agreement by you or any of your Representatives and would cause the Company

irreparable harm. Therefore, you hereby agree that, in the event of any breach or threatened

breach of this Agreement by you or any of your Representatives, the Company will be entitled to

seek equitable relief, including, without limitation, injunctive relief and specific performance, as

remedies for any such breach or threatened breach without the requirement of posting a bond or

other security. Such remedies will not be the exclusive remedies for any breach of this

Agreement, but will be in addition to all other remedies available at law or in equity to the

Company.

7. This Agreement or any provision hereof may not be amended, modified or waived

by course of dealing, usage in trade, conduct or any exchanges of communication, including,

without limitation, e-mail or any other electronic or digital means, other than by amendment, in

writing duly executed with the handwritten signatures of an authorized signatory of each of the

Parties. The rights and remedies of the Parties are cumulative, and not alternative. Neither the

failure nor any delay by any Party in exercising any right, power, or privilege under this

Agreement will operate as a waiver of such right, power, or privilege, and no single or partial

exercise of any such right, power, or privilege will preclude any other or further exercise of such

right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum

extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be

discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right

unless in writing signed by the other Party; (b) no waiver that may be given by a Party will be

applicable except in the specific instance for which it is given; and (c) no notice to or demand on

one Party will be deemed to be a waiver of any obligation of such Party or of the right of the

Party giving such notice or demand to take further action without notice or demand as provided

in this Agreement.

8. This Agreement constitutes the complete agreement between the Parties

concerning the subject matter hereof and supersedes and cancels any and all prior

communications and agreements between the Parties with respect thereto. This Agreement

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relates only to the subject matter hereof and shall not be construed as an agreement to agree to

enter into the Transaction or any transaction by either Party. The invalidity or unenforceability of

any provision of this Agreement shall not affect the validity or enforceability of any other

provisions of this Agreement, which shall remain in full force and effect. If any of the covenants

or provisions of this Agreement are determined to be unenforceable by reason of its extent,

duration, scope or otherwise, then the Parties contemplate that the court making such

determination shall reduce such extent, duration, scope or other provision and enforce them in

their reduced form for all purposes contemplated by this Agreement.

9. Neither Party may assign any rights or delegate any duties under this Agreement

without the prior written consent of the other Party, which consent shall be at the other Party’s

sole discretion. Any such attempted assignment or delegation without the other Party’s prior

written consent will be null and void ab initio. This Agreement will be binding upon the Parties

and their respective authorized successors and assigns.

10. You acknowledge and agree that no contract or agreement providing for any

Transaction shall be deemed to exist between you and the Company or any of its affiliates or

stockholders unless and until a final definitive agreement has been executed and delivered, and

each Party hereby waives, in advance, any claims (including, without limitation, breach of

contract) in connection with any Transaction unless and until a final definitive agreement has

been executed and delivered with respect thereto. The Parties also agree that unless and until a

final definitive agreement regarding a Transaction has been executed and delivered, neither Party

will be under any legal obligation of any kind whatsoever with respect to such a Transaction by

virtue of this Agreement, except for the matters specifically agreed to herein. You acknowledge

and agree that the Company and its affiliates and stockholders reserve the right, in their sole

discretion, to reject any and all proposals made by you or any of your Representatives with regard

to the Transaction, and to terminate discussions and negotiations with you at any time.

11. This Agreement shall be deemed to have been made and executed in the State of

Delaware, and any dispute arising hereunder shall be governed by, and construed in accordance

with, the laws of the State of Delaware, without regard to its conflict of laws rules. You and the

Company (i) irrevocably submit to the exclusive jurisdiction of any state court in the State of

Delaware and the United States District Court for the District of Delaware (and the appropriate

appellate courts) for the purposes of any suit, action or other proceeding arising out of this

Agreement and (ii) agree to commence any such action, suit or proceeding either in the United

States District Court for the District of Delaware or if such suit, action or other proceeding may

not be brought in such court for jurisdictional reasons, in any state court in the State of Delaware.

12. EACH OF THE COMPANY AND YOU HEREBY WAIVES, TO THE

FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT OR YOU MAY

HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY OR INDIRECTLY

ARISING OUT OF, INVOLVING OR OTHERWISE IN RESPECT OF THIS AGREEMENT.

13. Any notice hereunder shall be made in writing by overnight courier, personal

delivery, facsimile or email (if telephonically confirmed), in each case to:

If to the Company:

Exhibit B – Page 4

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[●]

[●]

[●]

Attention: [●]¶

Facsimile: [●]

If to you:

[INSERT ADDRESS OF POTENTIAL TRANSFEREE]

Attention: ¶

Facsimile: 

Telephone: 

Email:

14. This Agreement shall expire on the earlier of (i) the date of the last to occur of (x)

a definitive agreement relating to the Transaction is entered into by you and either the Company

or any of its affiliates or stockholders and (y) you have become a party to the Stockholders

Agreement, dated as of [●], as amended from time to time, by and among the Company and the

stockholders of the Company and (ii) the twenty-four (24) month anniversary of the date hereof.

15. This Agreement may be executed in two (2) or more counterparts, each of which

will be deemed to be an original and all of which taken together will be deemed to constitute this

Agreement when a duly authorized representative of each Party has signed a counterpart. The

Parties may sign and deliver this Agreement by facsimile or electronic (that is, .PDF)

transmission. Each Party agrees that the delivery of this Agreement by facsimile or electronic

transmission will have the same force and effect as delivery of original signatures.

Exhibit B – Page 5

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Please confirm your agreement with the foregoing by signing and returning one copy of

this Agreement to the undersigned, whereupon this letter agreement shall become a binding

agreement between you and the Company.

Very truly yours,

[GIRAFFE NEW HOLDING CO., INC.]

By:

Name:

Title:

Accepted and agreed as of the date first written above:

[INSERT NAME OF POTENTIAL

TRANSFEREE]

By:

Name:

Title:

Exhibit B – Page 6

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EXHIBIT G

Registration Rights Agreement

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DRAFT SUBJECT TO MATERIAL CHANGE

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (including all exhibits hereto and as may be 

amended, supplemented or amended and restated from time to time in accordance with the terms 

hereof, this “Agreement”) is made and entered into as of [●], 2017, by and among The Gymboree 

Corporation, a Delaware corporation (the “Company”), and the other parties signatory hereto and 

any additional parties identified on the signature pages of any joinder agreement executed and 

delivered pursuant hereto.

WHEREAS, the Company and certain affiliated debtors filed a plan of reorganization 

pursuant to Chapter 11 of the United States Bankruptcy Code, on June 16, 2017, which was 

confirmed by the United States Bankruptcy Court for the Eastern District of Virginia on [●], 

2017 (including all exhibits, schedules and supplements thereto and as amended from time to 

time, the “Plan”); and 

WHEREAS, the Plan provides that the Company will enter into a registration rights 

agreement with each Holder (as defined below) and any Affiliates or Related Funds thereof that 

receive New Gymboree Common Shares; and

WHEREAS, the Company and the Holders are entering into this Agreement in 

furtherance of the aforesaid provisions of the Plan.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this 

Agreement, and for other good and valuable consideration, the receipt and adequacy of which are 

hereby acknowledged, the Company and each of the Holders agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined herein that are 

defined in the Plan have the meanings given such terms in the Plan. As used in this Agreement, 

the following terms shall have the following meanings:

“Advice” has the meaning set forth in Section 16(c).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly 

controlling, controlled by, or under common control with, such Person as of the date on which, 

or at any time during the period for which, the determination of affiliation is being made 

(including any Related Funds of such Person). For purposes of this definition, the term “control” 

(including the correlative meanings of the terms “controlled by” and “under common control 

with”), as used with respect to any Person, means the possession, directly or indirectly, of the 

power to direct or cause the direction of the management policies of such Person, whether 

through the ownership of voting securities, by contract or otherwise. 

“Agreement” has the meaning set forth in the Recitals.

“Automatic Shelf Registration Statement” means an “automatic shelf registration 

statement” as defined in Rule 405 promulgated under the Securities Act, as such definition may 

be amended from time to time.

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“beneficially own” (and related terms such as “beneficial ownership” and “beneficial 

owner”) shall have the meaning given to such term in Rule 13d-3 under the Exchange Act, and 

any Person’s beneficial ownership of securities shall be calculated in accordance with the 

provisions of such Rule.

“Board” means the Board of Directors of the Company or any authorized committee 

thereof.

“Bought Deal” has the meaning set forth in Section 8(a).

“Business Day” means any day, other than a Saturday or Sunday or a day on which 

commercial banks in New York City are authorized or required by law to be closed.

“Commission” means the Securities and Exchange Commission.

“Company” has the meaning set forth in the Preamble and includes the Company’s 

successors by merger, acquisition, reorganization or otherwise.

“Counsel to the Holders” means (i) with respect to any Demand Registration, the counsel 

selected by the Holders of a majority of the Registrable Securities initially requesting such 

Demand Registration and (ii) with respect to any Underwritten Takedown or Piggyback 

Offering, the counsel selected by the Majority Holders.

“Demand Registration” has the meaning set forth in Section 5(a).

“Demand Registration Request” has the meaning set forth in Section 5(a).

“Effective Date” means the date that a Registration Statement filed pursuant to this 

Agreement is first declared effective by the Commission.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules 

and regulations promulgated thereunder. 

“Form S-1” means Form S-1 under the Securities Act, or any other form hereafter 

adopted by the Commission for the general registration of securities under the Securities Act.

“Form S-3” means Form S-3 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-3.

“Form S-4” means Form S-4 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-4.

“Form S-8” means Form S-8 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-8.

“FINRA” has the meaning set forth in Section 10.

“Grace Period” has the meaning set forth in Section 7(a)(B).

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“Holder” or “Holders” means any party to the Backstop Commitment Agreement that is 

also a party signatory to this Agreement, other than the Company, and any additional parties 

identified on the signature pages of any joinder agreement executed and delivered pursuant to 

this Agreement. A Person shall cease to be a Holder hereunder at such time as it ceases to hold 

any Registrable Securities.

“Indemnified Party” has the meaning set forth in Section 12(c).

“Indemnifying Party” has the meaning set forth in Section 12(c).

“Initial Shelf Expiration Date” has the meaning set forth in Section 2(f).

“Initial Shelf Participation Trigger Date” has the meaning set forth in Section 2(a).

“Initial Shelf Registration Statement” has the meaning set forth in Section 2(a).

“Lockup Period” has the meaning set forth in Section 11(a). 

“Losses” has the meaning set forth in Section 12(a).

“Majority Holders” means, with respect to any Underwritten Offering, the holders of a 

majority of the Registrable Securities to be included in such Underwritten Offering held by all 

Holders that have made the request requiring the Company to conduct such Underwritten 

Offering (but not including any Holders that have exercised “piggyback” rights hereunder to be 

included in such Underwritten Offering).

“New Gymboree Common Shares” means the common shares of the Company to be 

issued pursuant to the Plan.

“Other Holder” has the meaning set forth in Section 8(b).

“Person” means an individual or corporation, partnership, trust, incorporated or 

unincorporated association, joint venture, limited liability company, joint stock company, 

government (or an agency or subdivision thereof) or other entity of any kind.

“Piggyback Notice” has the meaning set forth in Section 8(a).

“Piggyback Offering” has the meaning set forth in Section 8(a).

“Plan” has the meaning set forth in the Recitals.

“Plan Effective Date” shall mean the date on which the Plan becomes effective.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, 

without limitation, an investigation or partial proceeding, such as a deposition), whether 

commenced or threatened.

“Prospectus” means the prospectus included in a Registration Statement (including, 

without limitation, a prospectus that includes any information previously omitted from a 

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prospectus filed as part of an effective registration statement in reliance upon Rule 430A 

promulgated under the Securities Act), as amended or supplemented by any prospectus 

supplement, with respect to the terms of the offering of any portion of the Registrable Securities 

covered by a Registration Statement, and all other amendments and supplements to the 

Prospectus, including post-effective amendments, and all material incorporated by reference or 

deemed to be incorporated by reference in such Prospectus.

“Registrable Securities” means, collectively, (a) as of the Plan Effective Date, all New 

Gymboree Common Shares issued to any Holder or to any Affiliate or Related Fund of any 

Holder, either directly or pursuant to a joinder or assignment and any additional New Gymboree 

Common Shares acquired by any Holder, Affiliate or Related Fund of any Holder in open market 

or other purchases and issued or issuable to any Holder, Affiliate or Related Fund of any Holder, 

after the Plan Effective Date and (b) any additional New Gymboree Common Shares paid, issued 

or distributed in respect of any such securities by way of a stock dividend, stock split or 

distribution, or in connection with a combination of securities, and any security into which such 

New Gymboree Common Shares shall have been converted or exchanged in connection with a 

recapitalization, reorganization, reclassification, merger, consolidation, exchange, distribution or 

otherwise; provided, however, that as to any Registrable Securities, such securities shall cease to 

constitute Registrable Securities upon the earliest to occur of: (i) the date on which such 

securities are disposed of pursuant to an effective Registration Statement or (ii) the date on 

which such securities are disposed of pursuant to Rule 144 (or any similar provision then in 

effect) promulgated under the Securities Act; provided further, however, that Registrable 

Securities shall not otherwise cease to constitute Registrable Securities due solely to the fact that 

such securities may be sold without restriction by the Commission.

“Registration Statement” means any one or more registration statements of the Company 

filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant 

to the provisions of this Agreement (including, without limitation, any Shelf Registration 

Statement), amendments and supplements to such registration statements, including posteffective amendments, all exhibits and all material incorporated by reference or deemed to be 

incorporated by reference in such Registration Statements.

“Related Fund” means (i) any investment funds or other entities who are advised by the 

same investment advisor and (ii) any investment advisor with respect to an investment fund or 

entity it advises.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Rule 144A” means Rule 144A promulgated by the Commission pursuant to the 

Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation 

hereafter adopted by the Commission having substantially the same effect as such rule.

“Rule 158” means Rule 158 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

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“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and 

regulations promulgated thereunder.

“Selling Stockholder Questionnaire” means a questionnaire reasonably adopted by the 

Company from time to time.

“Shelf Registration Statement” means a Registration Statement filed with the 

Commission in accordance with the Securities Act for the offer and sale of Registrable Securities 

by Holders on a continuous or delayed basis pursuant to Rule 415.

“Significant Holder” means any Holder who holds at least 5.0% of the New Gymboree 

Common Shares (or any securities convertible into or exchangeable or exercisable for such New 

Gymboree Common Shares).

“Trading Day” means a day during which trading in the New Gymboree Common Shares 

occurs in the Trading Market, or if the New Gymboree Common Shares are not listed on a 

Trading Market, a Business Day.

“Trading Market” means whichever of the New York Stock Exchange, the NYSE MKT, 

the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital 

Market, OTC Bulletin Board, or OTC Markets Group marketplace on which the New Gymboree 

Common Shares are listed or quoted for trading on the date in question.

“Transfer” has the meaning set forth in Section 14.

“Underwritten Offering” means an offering of Registrable Securities under a Registration 

Statement in which the Registrable Securities are sold to an underwriter for reoffering to the 

public.

“Underwritten Takedown” has the meaning set forth in Section 2(h).

2. Initial Shelf Registration. 

(a) The Company shall prepare a Shelf Registration Statement (as may be amended 

from time to time, the “Initial Shelf Registration Statement”), and shall include in the Initial 

Shelf Registration Statement the Registrable Securities of each Holder who shall request 

inclusion therein of some or all of their Registrable Securities by written notice to the 

Company, provided that such notice may not be delivered earlier than [ ] days after the Plan 

Effective Date (the “Initial Shelf Participation Trigger Date”). The Company shall file the 

Initial Shelf Registration Statement with the Commission on or prior to the 60th day following 

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the Initial Shelf Participation Trigger Date; provided, however, that the Company shall not be 

required to file the Initial Shelf Registration Statement until 60 days after Holders constituting 

at least [ ] percent ([ ]%) of all Registrable Securities properly request the inclusion in the 

Initial Shelf Registration Statement of such Registrable Securities, and such Holders otherwise 

timely comply with the requirements of this Agreement with respect to the inclusion of such 

Registrable Securities in the Initial Shelf Registration Statement.

(b) The Company shall include in the Initial Shelf Registration Statement all 

Registrable Securities whose inclusion has been timely requested as aforesaid; provided, 

however, that the Company shall not be required to include an amount of Registrable Securities 

in excess of the amount as may be permitted to be included in such Registration Statement 

under the rules and regulations of the Commission and the applicable interpretations thereof by 

the staff of the Commission.

(c) Upon the request of any Holder whose Registrable Securities are not included in 

the Initial Shelf Registration Statement at the time of such request, the Company shall file a 

new Registration Statement to include the Registrable Securities of such Holder as well as all 

previously registered Registrable Securities under Section 2 (for the avoidance of doubt, any 

such request shall not constitute a Demand Registration Request (as defined below)).

(d) Within seven (7) days after receiving a request pursuant to Section 2(c), the 

Company shall give written notice of such request to all other Holders of Registrable Securities 

and shall include in such New Registration Statement all such Registrable Securities with 

respect to which the Company has received written requests for inclusion therein within twenty 

(20) days after the Company’s giving of such notice, provided that such Registrable Securities 

are not already covered by an existing and effective Registration Statement that may be utilized 

for the offer and sale of the Registrable Securities requested to be registered in the manner so 

requested.

(e) The Initial Shelf Registration Statement shall be on Form S-1; provided, 

however, that, if the Company becomes eligible to register the Registrable Securities for resale 

by the Holders on Form S-3 (including without limitation a Form S-3 filed as an Automatic 

Shelf Registration Statement), the Company shall be entitled to amend the Initial Shelf 

Registration Statement to a Shelf Registration Statement on Form S-3 or file a Shelf 

Registration Statement on Form S-3 in substitution of the Initial Shelf Registration Statement 

as initially filed.

(f) The Company shall use its reasonable best efforts to cause the Initial Shelf 

Registration Statement to be declared effective by the Commission as promptly as practicable, 

and shall use its reasonable best efforts to keep such Initial Shelf Registration Statement 

continuously effective, and not subject to any stop order, injunction or other similar order or 

requirement of the Commission, until the earlier of (i) the date the Company (A) is eligible to 

register the Registrable Securities for resale by Holders on Form S-3 and (B) has filed such 

Registration Statement with the Commission and which is effective and (ii) the date that all 

Registrable Securities covered by the Initial Shelf Registration Statement shall cease to be 

Registrable Securities (such earlier date, the “Initial Shelf Expiration Date”). In the event of 

any stop order, injunction or other similar order or requirement of the Commission relating to 

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the Initial Shelf Registration Statement, if any Registrable Securities covered by the Initial 

Shelf Registration Statement remain unsold, the period during which the Initial Shelf 

Registration Statement shall be required to remain effective will be extended by the number of 

days during which such stop order, injunction or similar order or requirement is in effect.

(g) If the Initial Shelf Registration Statement is on Form S-1, then for so long as 

any Registrable Securities covered by the Initial Shelf Registration Statement remain unsold, 

the Company will file any supplements to the Prospectus or post-effective amendments 

required to be filed by applicable law in order to incorporate into such Prospectus any Current 

Reports on Form 8-K necessary or required to be filed by applicable law, any Quarterly 

Reports on Form 10-Q or any Annual Reports on Form 10-K filed by the Company with the 

Commission, or any other information necessary so that (i) the Initial Shelf Registration 

Statement shall not include any untrue statement of material fact or omit to state any material 

fact required to be stated therein or necessary to make the statements therein not misleading, 

and (ii) the Company complies with its obligations under Item 512(a)(1) of Regulation S-K; 

provided, however, that these obligations remain subject to the Company’s rights under Section 

7 of this Agreement. 

(h) Upon the demand of one or more Holders, the Company shall facilitate a 

“takedown” of Registrable Securities in the form of an Underwritten Offering (each, an 

“Underwritten Takedown”), in the manner and subject to the conditions described in Section 6

of this Agreement, provided that (i) the number of securities included in such “takedown” shall 

equal at least twenty-five percent (25%) of all Registrable Securities at such time and (ii) the 

Registrable Securities requested to be sold by the Holders in such “takedown” shall have an 

anticipated aggregate gross offering price (before deducting underwriting discounts and 

commission) of at least $75 million.

3. Subsequent Shelf Registration Statements

(a) After (i) the Effective Date of the Initial Shelf Registration Statement and prior 

to the Initial Shelf Expiration Date and (ii) for so long as any Registrable Securities remain 

outstanding, the Company shall use its best efforts to (A) ensure that it will be eligible to 

register the Registrable Securities on Form S-3 after the Initial Shelf Expiration Date, and (B) 

meet the requirements of General Instruction VII of Form S-1 after the Initial Shelf Expiration 

Date. 

(b) After the Initial Shelf Expiration Date and for so long as any Registrable 

Securities remain outstanding, the Company shall use its best efforts to (A) be eligible and/or 

to maintain its eligibility to register the Registrable Securities on Form S-3, and (B) meet the 

requirements of General Instruction VII of Form S-1. 

(c) After the Initial Shelf Expiration Date and for so long as any Registrable 

Securities remain outstanding, if there is not an effective Registration Statement which 

includes the Registrable Securities that are currently outstanding, the Company shall (i) if the 

Company is eligible to register the Registrable Securities on Form S-3, promptly file a Shelf 

Registration Statement on Form S-3 and use its reasonable best efforts to cause such 

Registration Statement to be declared effective or (ii) promptly file a Shelf Registration 

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Statement on Form S-1 and use its reasonable best efforts to cause such Registration Statement 

to be declared effective and for so long as any Registrable Securities covered by such Shelf 

Registration on Form S-1 remain unsold, the Company will file any supplements to the 

Prospectus or post-effective amendments required to be filed by applicable law in order to 

incorporate into such Prospectus any Current Reports on Form 8-K necessary or required to be 

filed by applicable law, any Quarterly Reports on Form 10-Q or any Annual Reports on Form 

10-K filed by the Company with the Commission, or any other information necessary so that 

(x) such Shelf Registration shall not include any untrue statement of material fact or omit to 

state any material fact required to be stated therein or necessary in order to make the statements 

therein not misleading, and (y) the Company complies with its obligations under Item 

512(a)(1) of Regulation S-K; provided, however, that these obligations remain subject to the 

Company’s rights under Section 7 of this Agreement.

4. Quotation on OTC Market

(a) Until and unless (x) the New Gymboree Common Shares are listed on a national 

securities exchange or (y) the New Gymboree Common Shares may be sold by any and all 

Holders without restriction by the Commission pursuant to a Registration Statement in an atthe-market offering, the Company shall use its reasonable best efforts to cause the New 

Gymboree Common Shares to be quoted on any of the OTCBB, OTCQX or OTCQB markets 

as promptly as practicable after the Plan Effective Date and shall thereafter use its reasonable 

best efforts to maintain such quotation.

5. Demand Registration

(a) At any time and from time to time beginning [ ( )] days after the Plan Effective 

Date, any Holder or group of Holders may request in writing (“Demand Registration Request”) 

that the Company effect the registration of all or part of such Holder’s or Holders’ Registrable 

Securities with the Commission under and in accordance with the provisions of the Securities 

Act (a “Demand Registration”). The Company will file a Registration Statement covering such 

Holder’s or Holders’ Registrable Securities requested to be registered on or prior to (x) the 60th 

day following a Demand Registration Request (if no Initial Shelf Registration Statement has 

been filed and declared effective) or (y) the 30th day following a Demand Registration Request 

(if an Initial Shelf Registration Statement has been filed and declared effective), and shall use its 

reasonable best efforts to cause such Registration Statement to be declared effective, as promptly 

as practicable after receipt of such request; provided, however, that the Company will not be 

required to file a Registration Statement pursuant to this Section 5(a):

(A) unless (i) the number of Registrable Securities requested to be registered 

on such Registration Statement equals at least (x) [ ] percent ([ ]%) of all Registrable 

Securities at such time (if no Initial Shelf Registration Statement has been filed and 

declared effective) or (y) twenty-five percent (25%) of all Registrable Securities at such 

time (if an Initial Shelf Registration Statement has been filed and declared effective) and 

(ii) the Registrable Securities requested to be sold by the Holders pursuant to such 

Registration Statement have an anticipated aggregate gross offering price (before 

deducting underwriting discounts and commission) of at least $50 million; 

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(B) if the Registrable Securities requested to be registered are already covered 

by an existing and effective Registration Statement and such Registration Statement may 

be utilized for the offer and sale of the Registrable Securities requested to be registered;

(C) if a registration statement filed by the Company shall have previously 

been initially declared effective by the Commission within the one hundred eighty (180) 

days preceding the date such Demand Registration Request is made; and

(D) if the number of Demand Registration Requests previously made pursuant 

to this Section 5(a) shall exceed five (5); provided, however, that a Demand Registration 

Request shall not be considered made for purposes of this clause (D) unless the requested 

Registration Statement has been declared effective by the Commission for more than 

75% of the full amount of Registrable Securities for which registration has been 

requested.

(b) A Demand Registration Request shall specify (i) the then-current name and 

address of such Holder or Holders, (ii) the aggregate number of Registrable Securities requested 

to be registered, (iii) the total number of Registrable Securities then beneficially owned by such 

Holder or Holders, and (iv) the intended means of distribution. If at the time the Demand 

Registration Request is made the Company appears, based on public information available to 

such Holder or Holders, eligible to use Form S-3 for the offer and sale of the Registrable 

Securities, the Holder or Holders making such request may request that the registration be in the 

form of a Shelf Registration Statement (for the avoidance of doubt, the Company shall not be 

under the obligation to file a Shelf Registration on Form S-3 if, upon the advice of its counsel, it 

is not eligible to make such a filing).

(c) The Company may satisfy its obligations under Section 5(a) hereof by amending 

(to the extent permitted by applicable law) any registration statement previously filed by the 

Company under the Securities Act, so that such amended registration statement will permit the 

disposition (in accordance with the intended methods of disposition specified as aforesaid) of all 

of the Registrable Securities for which a Demand Registration Request has been properly made 

under Section 5(b) hereof. If the Company so amends a previously filed registration statement, it 

will be deemed to have effected a registration for purposes of Section 5(a) hereof; provided, 

however, that the Effective Date of the amended registration statement, as amended pursuant to 

this Section 5(c), shall be the “the first day of effectiveness” of such Registration Statement for 

purposes of determining the period during which the Registration Statement is required to be 

maintained effective in accordance with Section 5(e) hereof.

(d) Within seven (7) days after receiving a Demand Registration Request, the 

Company shall give written notice of such request to all other Holders of Registrable Securities 

and shall, subject to the provisions of Section 6(c) in the case of an Underwritten Offering, 

include in such registration all such Registrable Securities with respect to which the Company 

has received written requests for inclusion therein within twenty (20) days after the Company’s 

giving of such notice, provided that such Registrable Securities are not already covered by an 

existing and effective Registration Statement that may be utilized for the offer and sale of the 

Registrable Securities requested to be registered in the manner so requested.

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(e) The Company will use its reasonable efforts to keep a Registration Statement that 

has become effective as contemplated by this Section 5 continuously effective, and not subject to 

any stop order, injunction or other similar order or requirement of the Commission:

(A) in the case of a Registration Statement other than a Shelf Registration 

Statement, until all Registrable Securities registered thereunder have been sold pursuant 

to such Registration Statement, but in no event later than two hundred seventy (270) days 

from the Effective Date of such Registration Statement; and

(B) in the case of a Shelf Registration Statement, until the earlier of: (x) three 

(3) years following the Effective Date of such Shelf Registration Statement; and (y) the 

date that all Registrable Securities covered by such Shelf Registration Statement shall 

cease to be Registrable Securities;

provided, however, that in the event of any stop order, injunction or other similar order or 

requirement of the Commission relating to any Shelf Registration Statement, if any Registrable 

Securities covered by such Shelf Registration Statement remain unsold, the period during which 

such Shelf Registration Statement shall be required to remain effective will be extended by the 

number of days during which such stop order, injunction or similar order or requirement is in 

effect; provided further, however, that if any Shelf Registration Statement was initially declared 

effective on Form S-3 and, prior to the date determined pursuant to Section 5(e)(B), the 

Company becomes ineligible to use Form S-3, the period during which such Shelf Registration 

Statement shall be required to remain effective will be extended by the number of days during 

which the Company did not have an effective Registration Statement covering unsold 

Registrable Securities initially registered on such Shelf Registration Statement.

(f) The Holder or Holders making a Demand Registration Request may, at any time 

prior to the Effective Date of the Registration Statement relating to such registration, revoke their 

request for the Company to effect the registration of all or part of such Holder’s or Holders’ 

Registrable Securities by providing a written notice to the Company. If, pursuant to the 

preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the 

Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the 

Company for all of its reasonable and documented out-of-pocket expenses incurred in the 

preparation, filing and processing of the Registration Statement, which out-of-pocket expenses, 

for the avoidance of doubt, shall not include overhead expenses and which requested registration 

shall not count as one of the permitted Demand Registration Requests hereunder or (ii) the 

requested registration that has been revoked will be deemed to have been effected for purposes 

of Section 5(a).

(g) If a Registration Statement filed pursuant to this Section 5 is a Shelf Registration 

Statement, then upon the demand of one or more Holders, the Company shall facilitate a 

“takedown” of Registrable Securities in the form of an Underwritten Offering, in the manner and 

subject to the conditions described in Section 6 of this Agreement, provided that (i) the number 

of securities included in such “takedown” shall equal at least twenty-five percent (25%) of all 

Registrable Securities at such time or (ii) the Registrable Securities requested to be sold by the 

Holders in such “takedown” shall have an anticipated aggregate offering price (before deducting 

underwriting discounts and commission) of at least $75 million.

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6. Procedures for Underwritten Offerings. The following procedures shall govern 

Underwritten Offerings pursuant to Section 2(h) or Section 5(g), whether in the case of an 

Underwritten Takedown or otherwise.

(a) (i) The Majority Holders shall select one or more investment banking firm(s) of 

national standing to be the managing underwriter or underwriters for any Underwritten Offering 

pursuant to a Demand Registration Request or an Underwritten Takedown with the consent of 

the Company, which consent shall not be unreasonably withheld, conditioned or delayed and (ii) 

the Company shall select one or more investment banking firms of national standing to be the 

managing underwriter or underwriters for any other Underwritten Offering with the consent of 

the Majority Holders, which consent shall not be unreasonably withheld, conditioned or delayed.

(b) All Holders proposing to distribute their securities through an Underwritten 

Offering, as a condition for inclusion of their Registrable Securities therein, shall agree to enter 

into an underwriting agreement with the underwriters; provided, however, that the underwriting 

agreement is in customary form and reasonably acceptable to the Majority Holders and provided

further, however, that no Holder of Registrable Securities included in any Underwritten Offering 

shall be required to make any representations or warranties to the Company or the underwriters 

(other than representations and warranties regarding (i) such Holder’s ownership of its 

Registrable Securities to be sold or transferred, (ii) such Holder’s power and authority to effect 

such transfer and (iii) such matters pertaining to compliance with securities laws as may be 

reasonably requested). 

(c) If the managing underwriter or underwriters for an Underwritten Offering 

pursuant to a Demand Registration or an Underwritten Takedown advises the Holders that the 

total amount of Registrable Securities or other New Gymboree Common Shares permitted to be 

registered is such as to materially adversely affect the success of such Underwritten Offering, the 

number of Registrable Securities or other New Gymboree Common Shares to be registered on 

such Registration Statement will be reduced as follows: first, the Company shall reduce or 

eliminate the securities of the Company to be included by any Person other than a Holder or the 

Company; second, the Company shall reduce or eliminate any securities of the Company to be 

included by the Company; and third, the Company shall reduce the number of Registrable 

Securities to be included by Holders on a pro rata basis based on the total number of Registrable 

Securities requested by the Holders to be included in the Underwritten Offering.

(d) Within three (3) days after receiving a request for an Underwritten Offering 

constituting a “takedown” from a Shelf Registration Statement, the Company shall give written 

notice of such request to all other Holders, and subject to the provisions of Section 6(c) hereof, 

include in such Underwritten Offering all such Registrable Securities with respect to which the 

Company has received written requests for inclusion therein within seven (7) days after the 

Company’s giving of such notice; provided, however, that such Registrable Securities are

covered by an existing and effective Shelf Registration Statement that may be utilized for the 

offering and sale of the Registrable Securities requested to be registered.

(e) The Company will not be required to undertake an Underwritten Offering 

pursuant to Section 2(h) or Section 5(g):

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(A) If the Company has undertaken an Underwritten Offering, whether for its 

own account or pursuant to this Agreement, within the one hundred eighty (180) days 

preceding the date of the request to the Company for such Underwritten Offering; and

(B) if the number of Underwritten Offerings previously made pursuant to 

Section 2(h) or Section 5(g) in the immediately preceding twelve (12)-month period shall 

exceed three (3); provided that an Underwritten Offering shall not be considered made 

for purposes of this clause (B) unless the offering has resulted in the disposition by the 

Holders of at least 75% of the amount of Registrable Securities requested to be included. 

7. Grace Periods.

(a) Notwithstanding anything to the contrary herein—

(A) the Company shall be entitled to postpone the filing or effectiveness of, or, 

at any time after a Registration Statement has been declared effective by the Commission, 

suspend the use of, a Registration Statement (including the Prospectus included therein) 

if in the good faith judgment of the Board, such registration, offering or use would 

reasonably be expected to materially affect in an adverse manner or materially interfere 

with any bona fide material financing of the Company or any material transaction under 

consideration by the Company or would require the disclosure of information that has not 

been, and is not otherwise required to be, disclosed to the public and the premature 

disclosure of which would materially affect the Company in an adverse manner; provided 

however, that in the event such Registration Statement relates to a Demand Registration 

Request or an Underwritten Offering pursuant to Section 2(h) or Section 5(g), then the 

Holders initiating such Demand Registration Request or such Underwritten Offering shall 

be entitled to withdraw the Demand Registration Request or request for the Underwritten 

Offering and, if such request is withdrawn, it shall not count against the limits imposed 

pursuant to Section 5(a)(D) or Section 6(e)(B) and the Company shall pay all registration 

expenses in connection with such registration; and

(B) at any time after a Registration Statement has been declared effective by 

the Commission and there is no duty to disclose under applicable law, the Company may 

delay the disclosure of material non-public information concerning the Company if the 

disclosure of such information at the time would, in the good faith judgment of the 

Board, adversely affect the Company (the period of a postponement or suspension as 

described in clause (A) and/or a delay described in this clause (B), a “Grace Period”).

(b) The Company shall promptly (i) notify the Holders in writing of the existence of 

the event or material non-public information giving rise to a Grace Period (provided that the 

Company shall not disclose the content of such material non-public information to any Holder, 

without the express consent of such Holder) or the need to file a post-effective amendment, as 

applicable, and the date on which such Grace Period will begin, (ii) use reasonable best efforts to 

terminate a Grace Period as promptly as practicable and (iii) notify the Holders in writing of the 

date on which the Grace Period ends.

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(c) The duration of any one Grace Period shall not exceed thirty (30) days, and the 

aggregate of all Grace Periods in total during any three hundred sixty-five (365) day period 

shall not exceed forty-five (45) days. For purposes of determining the length of a Grace Period, 

the Grace Period shall be deemed to begin on and include the date the Holders receive the 

notice referred to in clause (i) of Section 7(b) and shall end on and include the later of the date 

the Holders receive the notice referred to in clause (iii) of Section 7(b) and the date referred to 

in such notice. In the event the Company declares a Grace Period, the period during which the 

Company is required to maintain the effectiveness of an Initial Shelf Registration Statement or 

a Registration Statement filed pursuant to a Demand Registration Request shall be extended by 

the number of days during which such Grace Period is in effect.

8. Piggyback Registration

(a) If at any time, and from time to time, the Company proposes to—

(A) file a registration statement under the Securities Act with respect to an 

underwritten offering of New Gymboree Common Shares of the Company or any 

securities convertible or exercisable into New Gymboree Common Shares (other than 

with respect to a registration statement (i) on Form S-8 or any successor form thereto, (ii) 

on Form S-4 or any successor form thereto or (iii) another form not available for 

registering the Registrable Securities for sale to the public), whether or not for its own 

account; or 

(B) conduct an underwritten offering constituting a “takedown” of a class of 

New Gymboree Common Shares or any securities convertible or exercisable into New 

Gymboree Common Shares registered under a shelf registration statement previously 

filed by the Company;

the Company shall give written notice (the “Piggyback Notice”) of such proposed filing or 

underwritten offering to the Holders at least ten (10) Business Days before the anticipated filing 

date (provided that in the case of a “bought deal,” “registered direct offering” or “overnight 

transaction” (a “Bought Deal”), such Piggyback Notice shall be given not less than two (2) 

Business Days prior to the expected date of commencement of marketing efforts. Such notice 

shall include the number and class of securities proposed to be registered or offered, the 

proposed date of filing of such registration statement or the conduct of such underwritten 

offering, any proposed means of distribution of such securities, any proposed managing 

underwriter of such securities and a good faith estimate by the Company of the proposed 

maximum offering price of such securities as such price is proposed to appear on the front cover 

page of such registration statement (or, in the case of an Underwritten Offering, would appear on 

the front cover page of a registration statement), and shall offer the Holders the opportunity to 

register such amount of Registrable Securities as each Holder may request on the same terms and 

conditions as the registration of the Company’s and/or the holders of other securities of the 

Company securities, as the case may be (a “Piggyback Offering”). Subject to Section 8(b), the 

Company will include in each Piggyback Offering all Registrable Securities for which the 

Company has received written requests for inclusion within seven (7) Business Days after the 

date the Piggyback Notice is given (provided that in the case of a Bought Deal, such written 

requests for inclusion must be received within two (2) Business Days after the date the 

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Piggyback Notice is given); provided, however, that in the case of the filing of a registration 

statement, such Registrable Securities are not otherwise registered pursuant to an existing and 

effective Shelf Registration Statement under this Agreement, but in such case, the Company 

shall include such Registrable Securities in such underwritten offering if the Shelf Registration 

Statement may be utilized for the offering and sale of the Registrable Securities requested to be 

offered; provided further, however, that in the case of an underwritten offering in the form of a 

“takedown” under a shelf registration statement, such Registrable Securities are covered by an 

existing and effective Shelf Registration Statement that may be utilized for the offering and sale 

of the Registrable Securities requested to be offered. 

(b) The Company will cause the managing underwriter or underwriters of the 

proposed offering to permit the Holders that have requested Registrable Securities to be 

included in the Piggyback Offering to include all such Registrable Securities on the same terms 

and conditions as any similar securities, if any, of the Company. Notwithstanding the 

foregoing, if the managing underwriter or underwriters of such underwritten offering advises 

the Company and the selling Holders in writing that, in its view, the total amount of securities 

that the Company, such Holders and any other holders entitled to participate in such offering 

(“Other Holders”) propose to include in such offering is such as to materially adversely affect 

the success of such underwritten offering, then:

(A) if such Piggyback Offering is an underwritten primary offering by the 

Company for its own account, the Company will include in such Piggyback Offering: (i) 

first, all securities to be offered by the Company; (ii) second, up to the full amount of 

securities requested to be included in such Piggyback Offering by the Holders; and (iii) 

third, up to the full amount of securities requested to be included in such Piggyback 

Offering by all Other Holders;

(B) if such Piggyback Offering is an underwritten secondary offering for the 

account of Other Holders exercising “demand” rights (including pursuant to a Demand 

Registration Request), the Company will include in such registration: (i) first, all 

securities of the Other Holders exercising “demand” rights (including pursuant to a 

Demand Registration Request) requested to be included therein; (ii) second, up to the full 

amount of securities requested to be included in such Piggyback Offering by the Holders 

entitled to participate therein, allocated pro rata among such Holders on the basis of the 

amount of securities requested to be included therein by each such Holder; (iii) third, up 

to the full amount of securities proposed to be included in the registration by the 

Company; and (iv) fourth, up to the full amount of securities requested to be included in 

such Piggyback Offering by the Other Holders entitled to participate therein, allocated 

pro rata among such Other Holders on the basis of the amount of securities requested to 

be included therein by each such Other Holder;

such that, in each case, the total amount of securities to be included in such Piggyback Offering 

is the full amount that, in the view of such managing underwriter, can be sold without materially 

adversely affecting the success of such Piggyback Offering.

(c) If at any time after giving the Piggyback Notice and prior to the time sales of 

securities are confirmed pursuant to the Piggyback Offering, the Company determines for any 

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reason not to register or delay the registration of the Piggyback Offering, the Company may, at 

its election, give notice of its determination to all Holders, and in the case of such a 

determination, will be relieved of its obligation to register any Registrable Securities in 

connection with the abandoned or delayed Piggyback Offering, without prejudice.

(d) Any Holder of Registrable Securities requesting to be included in a Piggyback 

Offering may withdraw its request for inclusion by giving written notice to the Company of its 

intention to withdraw from that registration, at least three (3) Business Days prior to the 

anticipated Effective Date of the Registration Statement filed in connection with such Piggyback 

Offering, or in the case of a Piggyback Offering constituting a “takedown” off of a shelf 

registration statement, at least three (3) Business Days prior to the anticipated date of the filing 

by the Company under Rule 424 of a supplemental prospectus (which shall be the preliminary 

supplemental prospectus, if one is used in the “takedown”) with respect to such offering; 

provided, however, that (i) the Holder’s request be made in writing and (ii) the withdrawal will 

be irrevocable and, after making the withdrawal, a Holder will no longer have any right to 

include its Registrable Securities in that Piggyback Offering.

9. Registration Procedures. If and when the Company is required to effect any 

registration under the Securities Act as provided in Sections 2(a), 5(a), 6 or 8 of this Agreement, 

the Company shall use its reasonable best efforts to:

(a) prepare and file with the Commission the requisite Registration Statement 

to effect such registration and thereafter use its reasonable best efforts to cause such 

Registration Statement to become and remain effective, subject to the limitations 

contained herein;

(b) prepare and file with the Commission such amendments and supplements 

to such Registration Statement and the Prospectus used in connection therewith as may 

be necessary to keep such Registration Statement effective and to comply with the 

provisions of the Securities Act and the Exchange Act with respect to the disposition of 

all Registrable Securities covered by such Registration Statement until such time as all of 

such Registrable Securities have been disposed of in accordance with the method of 

disposition set forth in such Registration Statement, subject to the limitations contained 

herein;

(c) (i) before filing a Registration Statement or Prospectus or any amendments 

or supplements thereto, at the Company’s expense, furnish to the Holders whose 

securities are covered by the Registration Statement copies of all such documents, other 

than documents that are incorporated by reference into such Registration Statement or 

Prospectus, proposed to be filed and such other documents reasonably requested by such 

Holders (which may be furnished by email), and afford Counsel to the Holders a 

reasonable opportunity to review and comment on such documents; and (ii) in connection 

with the preparation and filing of each such Registration Statement pursuant to this 

Agreement, (A) upon reasonable advance notice to the Company, give each of the 

foregoing such reasonable access to all financial and other records, corporate documents 

and properties of the Company as shall be necessary, in the reasonable opinion of 

Counsel to the Holders and such underwriters, to conduct a reasonable due diligence 

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investigation for purposes of the Securities Act and Exchange Act, and (B) upon 

reasonable advance notice to the Company and during normal business hours, provide 

such reasonable opportunities to discuss the business of the Company with its officers, 

directors, employees and the independent public accountants who have certified its 

financial statements as shall be necessary, in the reasonable opinion of Counsel to the 

Holders and such underwriters, to conduct a reasonable due diligence investigation for 

purposes of the Securities Act and the Exchange Act;

(d) notify each selling Holder of Registrable Securities, promptly after the 

Company receives notice thereof, of the time when such Registration Statement has been 

declared effective or a supplement to any Prospectus forming a part of such Registration 

Statement has been filed;

(e) with respect to any offering of Registrable Securities, furnish to each 

selling Holder of Registrable Securities, and the managing underwriters for such 

Underwritten Offering, if any, without charge, such number of copies of the applicable 

Registration Statement, each amendment and supplement thereto, the Prospectus included 

in such Registration Statement (including each preliminary Prospectus, final Prospectus, 

and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or 

Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” 

as such term is defined under Rule 433 promulgated under the Securities Act), all 

exhibits and other documents filed therewith and such other documents as such seller or 

such managing underwriters may reasonably request including in order to facilitate the 

disposition of the Registrable Securities owned by such seller, and upon request, a copy 

of any and all transmittal letters or other correspondence to or received from, the 

Commission or any other governmental authority relating to such offer;

(f) (i) register or qualify all Registrable Securities covered by such 

Registration Statement under such other securities or Blue Sky laws of such states or 

other jurisdictions of the United States of America as the Holders covered by such 

Registration Statement shall reasonably request in writing, (ii) keep such registration or 

qualification in effect for so long as such Registration Statement remains in effect and 

(iii) take any other action that may be necessary or reasonably advisable to enable such 

Holders to consummate the disposition in such jurisdictions of the securities to be sold by 

such Holders, except that the Company shall not for any such purpose be required to 

qualify generally to do business as a foreign corporation in any jurisdiction wherein it 

would not but for the requirements of this subsection (f) be obligated to be so qualified, 

to subject itself to taxation in such jurisdiction or to consent to general service of process 

in any such jurisdiction;

(g) cause all Registrable Securities included in such Registration Statement to 

be registered with or approved by such other federal or state governmental agencies or 

authorities as necessary upon the opinion of counsel to the Company or Counsel to the 

Holders of Registrable Securities included in such Registration Statement to enable such 

Holder or Holders thereof to consummate the disposition of such Registrable Securities in 

accordance with their intended method of distribution thereof;

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(h) with respect to any Underwritten Offering, obtain and, if obtained, furnish 

to each Holder that is named as an underwriter in such Underwritten Offering and each 

other underwriter thereof, a signed

(A) opinion of outside counsel for the Company (including a 

customary 10b-5 statement), dated the date of the closing under the underwriting 

agreement and addressed to the underwriters, reasonably satisfactory (based on 

the customary form and substance of opinions of issuers’ counsel customarily 

given in such an offering) in form and substance to such underwriters, if any, and

(B) “comfort” letter, dated the date of the underwriting agreement and 

another dated the date of the closing under the underwriting agreement and 

addressed to the underwriters and signed by the independent public accountants 

who have certified the Company’s financial statements included or incorporated 

by reference in such registration statement, reasonably satisfactory (based on the 

customary form and substance of “cold comfort” letters of issuers’ independent 

public accountant customarily given in such an offering) in form and substance to 

such Holder and such underwriters, if any, 

in each case, covering substantially the same matters with respect to such 

Registration Statement (and the Prospectus included therein) and, in the case of 

the accountants’ comfort letter, with respect to events subsequent to the date of 

such financial statements, as are customarily covered in opinions of issuer’s 

counsel and in accountants’ comfort letters delivered to underwriters in such types 

of offerings of securities;

(i) notify each Holder of Registrable Securities included in such Registration 

Statement at any time when a Prospectus relating thereto is required to be delivered under 

the Securities Act, upon discovery that, or upon the happening of any event as a result of 

which, the Prospectus included in such Registration Statement, as then in effect, includes 

an untrue statement of a material fact or omits to state a material fact necessary in order 

to make the statements therein, in the light of the circumstances under which they were 

made, not misleading and for which the Company chooses to suspend the use of the 

Registration Statement and Prospectus in accordance with the terms of this Agreement, 

and, at the written request of any such Holder, promptly prepare and furnish to it a 

reasonable number of copies of a supplement to or an amendment of such Prospectus as 

may be necessary so that, as thereafter delivered to the purchasers of such securities, such 

Prospectus, as supplemented or amended, shall not include an untrue statement of a 

material fact or omit to state a material fact necessary in order to make the statements 

therein, in the light of the circumstances under which they were made, not misleading;

(j) notify the Holders of Registrable Securities included in such Registration 

Statement promptly of any request by the Commission for the amending or 

supplementing of such Registration Statement or Prospectus or for additional 

information;

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(k) advise the Holders of Registrable Securities included in such Registration 

Statement promptly after the Company receives notice or obtains knowledge of any order 

suspending the effectiveness of a registration statement relating to the Registrable 

Securities at the earliest practicable moment and promptly use its reasonable best efforts 

to obtain the withdrawal;

(l) otherwise comply with all applicable rules and regulations of the 

Commission and any other governmental agency or authority having jurisdiction over the 

offering of Registrable Securities, and make available to its stockholders, as soon as 

reasonably practicable, an earnings statement covering the period of at least twelve (12) 

months, but not more than eighteen (18) months, beginning with the first (1st) full 

calendar month after the Effective Date of such Registration Statement, which earnings 

statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 

and which requirement will be deemed satisfied if the Company timely files complete 

and accurate information on Form 10-Q and 10-K and Current Reports on Form 8-K 

under the Exchange Act and otherwise complies with Rule 158;

(m) provide and cause to be maintained a transfer agent and registrar for the 

Registrable Securities included in a Registration Statement no later than the Effective 

Date thereof;

(n) enter into such agreements (including an underwriting agreement in 

customary form) and take such other actions as the Holders beneficially owning a 

majority of the Registrable Securities included in a Registration Statement or the 

underwriters, if any, shall reasonably request in order to expedite or facilitate the 

disposition of such Registrable Securities, including customary indemnification; and 

provide reasonable cooperation, including causing at least one (1) executive officer and a 

senior financial officer to attend and participate in “road shows” and other information 

meetings organized by the underwriters, if any, as reasonably requested; provided, 

however, that the Company shall have no obligation to participate in more than three (3) 

“road shows” in any twelve (12)-month period and such participation shall not 

unreasonably interfere with the business operations of the Company;

(o) if requested by the managing underwriter(s) or the Holders beneficially 

owning a majority of the Registrable Securities being sold in connection with an 

Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective 

amendment such information relating to the plan of distribution for such shares of 

Registrable Securities provided to the Company in writing by the managing underwriters 

and the Holders of a majority of the Registrable Securities being sold and that is required 

to be included therein relating to the plan of distribution with respect to such Registrable 

Securities, including without limitation, information with respect to the number of 

Registrable Securities being sold to such underwriters, the purchase price being paid 

therefor by such underwriters and with respect to any other terms of the Underwritten 

Offering of the Registrable Securities to be sold in such offering, and make any required 

filings with respect to such information relating to the plan of distribution as soon as 

practicable after notified of the information; 

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(p) cooperate with the Holders of Registrable Securities included in a 

Registration Statement and the managing underwriter(s), if any, to facilitate the timely 

preparation and delivery of certificates representing Registrable Securities to be sold and 

not bearing any restrictive legends, and enable such Registrable Securities to be in such 

share amounts and registered in such names as the managing underwriters, or, if none, the 

Holders beneficially owning a majority of the Registrable Securities being offered for 

sale, may reasonably request at least three (3) Business Days prior to any sale of 

Registrable Securities to the underwriters; 

(q) cause all Registrable Securities included in a Registration Statement to be 

listed on a national securities exchange on which similar securities issued by the 

Company are then listed, if at all; and

(r) otherwise use its reasonable best efforts to take all other steps necessary to 

effect the registration of such Registrable Securities contemplated hereby.

In addition, at least fifteen (15) Trading Days prior to the first anticipated filing date of a 

Registration Statement for any registration under this Agreement, the Company will notify each 

Holder of the information the Company requires from that Holder, including any update to or 

confirmation of the information contained in the Selling Stockholder Questionnaire, if any, 

which shall be completed and delivered to the Company promptly upon request and, in any 

event, within five (5) Trading Days prior to the applicable anticipated filing date. Each Holder 

further agrees that it shall not be entitled to be named as a selling security-holder in the 

Registration Statement or use the Prospectus for offers and resales of Registrable Securities at 

any time, unless such Holder has returned to the Company a completed and signed Selling 

Stockholder Questionnaire and a response to any requests for further information as described in 

the previous sentence and, if an Underwritten Offering, entered into an underwriting agreement 

with the underwriters in accordance with Section 6(b). If a Holder of Registrable Securities 

returns a Selling Stockholder Questionnaire or a request for further information, in either case, 

after its respective deadline, the Company shall be permitted to exclude such Holder from being 

a selling security holder in the Registration Statement or any pre-effective or post-effective 

amendment thereto. Each Holder acknowledges and agrees that the information in the Selling 

Stockholder Questionnaire or request for further information as described in this Section 9 will 

be used by the Company in the preparation of the Registration Statement and hereby consents to 

the inclusion of such information in the Registration Statement.

10. Registration Expenses. All fees and expenses incident to the Company’s 

performance of or compliance with its obligations under this Agreement (excluding any 

underwriting discounts, fees or selling commissions or broker or similar commissions or fees 

(which shall be borne by participating Holders on a pro rata basis), or transfer taxes of any 

Holder) shall be borne by the Company whether or not any Registrable Securities are sold 

pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence 

shall include, without limitation, (i) all registration and filing fees and expenses (including, 

without limitation, fees and expenses (A) with respect to filings required to be made with any 

Trading Market on which the New Gymboree Common Shares are then listed for trading, if any, 

(B) with respect to compliance with applicable state securities or Blue Sky laws (including, 

without limitation, fees and disbursements of counsel for the Company, any Underwriters or 

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Holders in connection with Blue Sky qualifications or exemptions of the Registrable Securities 

and determination of the eligibility of the Registrable Securities for investment under the laws of 

such jurisdictions as requested by the Holders) and (C) if not previously paid by the Company in 

connection with an issuer filing, with respect to any filing that may be required to be made by 

any broker through which a Holder intends to make sales of Registrable Securities with the 

Financial Industry Regulatory Authority (“FINRA”) pursuant to FINRA Rule 5110, so long as 

the broker is receiving no more than a customary brokerage commission in connection with such 

sale, (ii) all expenses of any Persons in preparing or assisting in preparing, word processing, 

printing and distributing any Registration Statement, any Prospectus, any free writing prospectus 

and any amendments or supplements thereto, any underwriting agreements, securities sales 

agreements or other similar agreements and any other documents relating to the performance of 

and compliance with this Agreement (including, without limitation, expenses of printing 

certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses 

is reasonably requested by the Holders of a majority of the Registrable Securities included in the 

Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) reasonable fees 

and disbursements of counsel for the Company, (v) the reasonable fees and expenses incurred in 

connection with any road show for Underwritten Offerings, (vi) Securities Act liability 

insurance, if the Company so desires such insurance, (vii) all rating agency fees, if any, and any 

fees associated with making the Registrable Securities eligible for trading through The 

Depository Trust Company, and (viii) fees and expenses of all other Persons retained by the 

Company in connection with the consummation of the transactions contemplated by this 

Agreement. In addition, the Company will pay the reasonable fees and disbursements of the 

Counsel to the Holders, including, for the avoidance of doubt, any expenses of Counsel to the 

Holders in connection with the filing or amendment of any Registration Statement, Prospectus or 

free writing prospectus hereunder or any Underwritten Offering.

11. Lockups.

(a) In connection with any Underwritten Takedown or underwritten 

registration pursuant to a Demand Registration Request or other underwritten public offering of 

equity securities by the Company, except with the written consent of the underwriters managing 

such offering, no Significant Holder shall effect any public sale or distribution (including sales 

pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or 

exchangeable or exercisable for such securities, without prior written consent from the Company, 

during the seven (7) days prior to and the sixty (60)-day period beginning on the date of closing 

of such offering (the “Lockup Period”), except as part of such offering, provided, that such 

Lockup Period restrictions are applicable on substantially similar terms to the Company and all 

of its and its subsidiaries’ executive officers and directors; provided that nothing herein will 

prevent any such Significant Holder from making a distribution of Registrable Securities to any 

of its partners, members or stockholders thereof or a transfer of Registrable Securities to an 

Affiliate or Related Fund that is otherwise in compliance with the applicable securities laws, so 

long as such distributees or transferees, as applicable, agree to be bound by the restrictions set 

forth in this Section 11(a). Each Significant Holder agrees to execute a lock-up agreement in 

favor of the Company’s underwriters to such effect and, in any event, that the Company’s 

underwriters in any relevant offering shall be third party beneficiaries of this Section 11(a).

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(b) In connection with any Underwritten Offering, the Company shall not 

effect any public sale or distribution of equity securities of the Company, or any securities 

convertible into or exchangeable or exercisable for such securities, without prior written consent 

from the Majority Holders, during the Lockup Period, except as part of such offering, provided, 

that such Lockup Period restrictions are applicable on substantially similar terms to the Majority 

Holders. The Company agrees to execute a lock-up agreement in favor of the underwriters in 

any relevant offering to such effect and, in any event, that the underwriters in any relevant 

offering shall be third party beneficiaries of this Section 11(b). Notwithstanding the foregoing, 

the Company may effect a public sale or distribution of securities of the type described above 

and during the periods described above if such sale or distribution is made pursuant to 

registrations on Form S-4 or Form S-8 or as part of any registration of securities of offering and 

sale to employees, directors or consultants of the company and its subsidiaries pursuant to any 

employee stock plan or other employee benefit plan arrangement.

12. Indemnification.

(a) Indemnification by the Company. The Company shall, notwithstanding any 

termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers, 

directors, agents, partners, members, investment manager, managers, stockholders, Affiliates and 

employees of each of them, each Person who controls any such Holder (within the meaning of 

Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, 

partners, members, investment manager, managers, stockholders, agents and employees of each 

such controlling Person, to the fullest extent permitted by applicable law, from and against any 

and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs 

of preparation and investigation and reasonable attorneys’ fees) and expenses (collectively, 

“Losses”), to which any of them may become subject, that arise out of or are based upon (i) any 

untrue or alleged untrue statement of a material fact contained in any Registration Statement, any 

Prospectus or any form of prospectus or in any amendment or supplement thereto or in any 

preliminary prospectus or (ii) any omission or alleged omission to state a material fact required 

to be stated therein or necessary to make the statements therein (in the case of any Prospectus or 

form of prospectus or supplement thereto, in the light of the circumstances under which they 

were made) not misleading, except to the extent, but only to the extent, that (A) such untrue 

statements, alleged untrue statements, omissions or alleged omissions are based upon 

information regarding such Holder furnished in writing to the Company by such Holder 

expressly for use therein, or to the extent that such information relates to such Holder or such 

Holder’s proposed method of distribution of Registrable Securities and was provided by such 

Holder expressly for use in the Registration Statement, such Prospectus or such form of 

Prospectus or in any amendment or supplement thereto, or (B) in the case of an occurrence of an 

event of the type specified in Section 9(i), related to the use by a Holder of an outdated or 

defective Prospectus after the Company has notified such Holder in writing that the Prospectus is 

outdated or defective and prior to the receipt by such Holder of the Advice contemplated and 

defined in Section 16(c) below, but only if and to the extent that following the receipt of the 

Advice, the misstatement or omission giving rise to such Loss would have been corrected. Such 

indemnity shall remain in full force and effect regardless of any investigation made by or on 

behalf of an Indemnified Party (as defined in Section 12(c)), shall survive the transfer of the 

Registrable Securities by the Holders, and shall be in addition to any liability which the 

Company may otherwise have.

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(b) Indemnification by Holders. Each Holder shall, severally and not jointly, 

indemnify and hold harmless the Company, its respective directors, officers, agents and 

employees, each Person who controls the Company (within the meaning of Section 15 of the 

Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or 

employees of such controlling Persons, to the fullest extent permitted by applicable law, from 

and against all Losses, as incurred, arising out of or based upon any untrue or alleged untrue 

statement of a material fact contained in any Registration Statement, any Prospectus, or any form 

of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or 

arising out of or relating to any omission or alleged omission of a material fact required to be 

stated therein or necessary to make the statements therein (in the case of any Prospectus, or any 

form of prospectus or supplement thereto, in the light of the circumstances under which they 

were made) not misleading (i) to the extent, but only to the extent, that such untrue statements or 

omissions are based upon information regarding such Holder furnished in writing to the 

Company by such Holder expressly for use therein or (ii) to the extent, but only to the extent, 

that such information relates to such Holder or such Holder’s proposed method of distribution of 

Registrable Securities and was provided by such Holder expressly for use in a Registration 

Statement, such Prospectus or such form of Prospectus or in any amendment or supplement 

thereto or (iii) in the case of an occurrence of an event of the type specified in Section 9(i), to the 

extent, but only to the extent, related to the use by such Holder of an outdated or defective 

Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated 

or defective and prior to the receipt by such Holder of the Advice contemplated in Section 16(c), 

but only if and to the extent that following the receipt of the Advice the misstatement or 

omission giving rise to such Loss would have been corrected. In no event shall the liability of 

any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds 

received by such Holder upon the sale of the Registrable Securities giving rise to such 

indemnification obligation. Such indemnity shall remain in full force and effect regardless of 

any investigation made by or on behalf of an Indemnified Party (as defined in Section 12(c)), 

shall survive the transfer of the Registrable Securities by the Holders, and shall be in addition to 

any liability which the Holder may otherwise have. 

(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or 

asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such 

Indemnified Party shall promptly notify the Person from whom indemnity is sought (the 

“Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the 

defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified 

Party and the payment of all reasonable fees and expenses incurred in connection with the 

defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not 

relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except 

(and only) to the extent that such failure shall have materially and adversely prejudiced the 

Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such 

Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel 

shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party 

has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed 

promptly to assume the defense of such Proceeding and to employ counsel reasonably 

satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any 

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such Proceeding (including any impleaded parties) include both such Indemnified Party and the 

Indemnifying Party, and such Indemnified Party shall have been advised by counsel that in the 

reasonable judgment of such counsel a conflict of interest exists if the same counsel were to 

represent such Indemnified Party and the Indemnifying Party; provided, that the Indemnifying 

Party shall not be liable for the reasonable and documented fees and expenses of more than one 

separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall 

not be liable for any settlement of any such Proceeding effected without its written consent, 

which consent shall not be unreasonably withheld, delayed or conditioned. No Indemnifying 

Party shall, without the prior written consent of the Indemnified Party, effect any settlement of 

any pending Proceeding in respect of which any Indemnified Party is a party, unless such 

settlement includes an unconditional release of such Indemnified Party from all liability on 

claims that are the subject matter of such Proceeding.

Subject to the terms of this Agreement, all reasonable and documented fees and expenses 

of the Indemnified Party (including reasonable and documented fees and expenses to the extent 

incurred in connection with investigating or preparing to defend such Proceeding in a manner not 

inconsistent with this Section 12(c)) shall be paid to the Indemnified Party, as incurred, with 

reasonable promptness after receipt of written notice thereof to the Indemnifying Party; 

provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that 

portion of such fees and expenses applicable to such actions for which such Indemnified Party is 

finally judicially determined to not be entitled to indemnification hereunder. The failure to 

deliver written notice to the Indemnifying Party within a reasonable time of the commencement 

of any such action shall not relieve such Indemnifying Party of any liability to the Indemnified 

Party under this Section 12, except to the extent that the Indemnifying Party is materially and 

adversely prejudiced in its ability to defend such action.

(d) Contribution. If a claim for indemnification under Section 12(a) or (b) is 

unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any 

Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall 

contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in 

such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and 

Indemnified Party in connection with the actions, statements or omissions that resulted in such 

Losses as well as any other relevant equitable considerations. The relative fault of such 

Indemnifying Party and Indemnified Party shall be determined by reference to, among other 

things, whether any action in question, including any untrue or alleged untrue statement of a 

material fact or omission or alleged omission of a material fact, has been taken or made by, or 

relates to information supplied by, such Indemnifying Party or Indemnified Party, and the 

parties’ relative intent, knowledge, access to information and opportunity to correct or prevent 

such action, statement or omission.

The parties hereto agree that it would not be just and equitable if contribution pursuant to 

this Section 12(d) were determined by pro rata allocation or by any other method of allocation 

that does not take into account the equitable considerations referred to in the immediately 

preceding paragraph. Notwithstanding the provisions of this Section 12(d), no Holder shall be 

required to contribute, in the aggregate, any amount in excess of the amount by which the net 

proceeds actually received by such Holder from the sale of the Registrable Securities subject to 

the Proceeding exceeds the amount of any damages that such Holder has otherwise been required 

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to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No 

person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 

Securities Act) shall be entitled to contribution from any Person who was not guilty of such 

fraudulent misrepresentation.

13. Section 4(a)(7), Rule 144 and Rule 144A; Other Exemptions. With a view to 

making available to the Holders of Registrable Securities the benefits of Rule 144 and 

Rule 144A and other rules and regulations of the Commission that may at any time permit a 

Holder of Registrable Securities to sell securities of the Company without registration, until such 

time as when no Registrable Securities remain outstanding, the Company covenants that it will 

(i) if it is subject to the reporting requirement of Section 13 or 15(d) of the Exchange Act, file in 

a timely manner all reports and other documents required, if any, to be filed by it under the 

Securities Act and the Exchange Act and the rules and regulations adopted thereunder, or (ii) if it 

is not subject to the reporting requirement of Section 13 or 15(d) of the Exchange Act, make 

available information necessary to comply with Section 4(a)(7) of the Securities Act and 

Rule 144 and Rule 144A, if available with respect to resales of the Registrable Securities under 

the Securities Act, at all times, all to the extent required from time to time to enable such Holder 

to sell Registrable Securities without registration under the Securities Act within the limitation of 

the exemptions provided by (x) Section 4(a)(7) of the Securities Act and Rule 144 and 

Rule 144A (if available with respect to resales of the Registrable Securities), as such rules may 

be amended from time to time, or (y) any other rules or regulations now existing or hereafter 

adopted by the Commission. Upon the reasonable request of any Holder of Registrable 

Securities, the Company will deliver to such Holder a written statement as to whether it has 

complied with such information requirements, and, if not, the specific reasons for noncompliance.

14. Transfer of Registration Rights. Any Holder may freely assign its rights 

hereunder on a pro rata basis in connection with any sale, transfer, assignment, or other 

conveyance (any of the foregoing, a “Transfer”) of Registrable Securities to any transferee or 

assignee; provided, that all of the following additional conditions are satisfied: (a) such Transfer 

is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in 

writing to become subject to the terms of this Agreement; and (c) the Company is given written 

notice by such Holder of such Transfer, stating the name and address of the transferee or 

assignee and identifying the Registrable Securities with respect to which such rights are being 

transferred or assigned and provide the amount of any other capital stock of the Company 

beneficially owned by such transferee or assignee; provided further, that (i) any rights assigned 

hereunder shall apply only in respect of the Registrable Securities that are Transferred and not in 

respect of any other securities that the transferee or assignee may hold and (ii) any Registrable 

Securities that are Transferred may cease to constitute Registrable Securities following such 

Transfer in accordance with the terms of this Agreement.

15. Further Assurances. Each of the parties hereto shall execute all such further 

instruments and documents and take all such further action as any other party hereto may 

reasonably require in order to effectuate the terms and purposes of this Agreement.

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16. Miscellaneous.

(a) Remedies. Any Person having rights under any provision of this Agreement 

shall be entitled to enforce such rights specifically to recover damages caused by reason of any 

breach of any provision of this Agreement and to exercise all other rights granted by law. The 

parties hereto agree and acknowledge that money damages may not be an adequate remedy for 

any breach of the provisions of this Agreement and that any party may in its sole discretion apply 

to any court of law or equity of competent jurisdiction (without posting any bond or other 

security) for specific performance and for other injunctive relief in order to enforce or prevent 

violation of the provisions of this Agreement.

(b) Compliance. Each Holder covenants and agrees that it will comply with the 

prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption 

therefrom is available) in connection with sales of Registrable Securities pursuant to any 

Registration Statement and shall sell the Registrable Securities only in accordance with a method 

of distribution described in each Registration Statement.

(c) Discontinued Disposition. By its acquisition of Registrable Securities, each 

Holder agrees that, upon receipt of a notice from the Company of the occurrence of a Grace 

Period or any event of the kind described in Section 9(i), such Holder will forthwith discontinue 

disposition of such Registrable Securities under a Registration Statement until it is advised in 

writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have 

been supplemented or amended) may be resumed. The Company may provide appropriate stop 

orders to enforce the provisions of this paragraph.

(d) Preservation of Rights. The Company shall not grant any registration rights to 

third parties which are more favorable than or inconsistent with the rights granted hereunder 

unless any such more favorable rights are concurrently added to the rights granted hereunder.

(e) No Inconsistent Agreements. The Company shall not hereafter enter into any 

agreement with respect to its securities which is inconsistent with or violates the rights granted to 

the Holders in this Agreement. 

(f) Amendments and Waivers. The provisions of this Agreement, including the 

provisions of this sentence, may not be amended, modified or supplemented, or waived unless 

the same shall be in writing and signed by the Company and Holders holding at least a majority 

of the then outstanding Registrable Securities; provided, however, that any party may give a 

waiver as to itself; provided further, however, that no amendment, modification, supplement, or 

waiver that disproportionately and adversely affects, alters, or changes the interests of any 

Holder shall be effective against such Holder without the prior written consent of such Holder; 

provided further, however, that the definition of “Holders” in Section 1 and the provisions of 

Section 2(c) may not be amended, modified or supplemented, or waived unless in writing and 

signed by all the signatories to this Agreement; and provided further, that the waiver of any 

provision with respect to any Registration Statement or offering may be given by Holders 

holding at least a majority of the then outstanding Registrable Securities entitled to participate in 

such offering or, if such offering shall have been commenced, having elected to participate in 

such offering. Notwithstanding the foregoing, a waiver or consent to depart from the provisions 

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hereof with respect to a matter that relates exclusively to the rights of certain Holders and that 

does not directly or indirectly affect the rights of other Holders may be given by Holders of a 

majority of the Registrable Securities to which such waiver or consent relates; provided, 

however, that the provisions of this sentence may not be amended, modified, or supplemented 

except in accordance with the provisions of the immediately preceding sentence. No waiver of 

any terms or conditions of this Agreement shall operate as a waiver of any other breach of such 

terms and conditions or any other term or condition, nor shall any failure to enforce any 

provision hereof operate as a waiver of such provision or of any other provision hereof. No 

written waiver hereunder, unless it by its own terms explicitly provides to the contrary, shall be 

construed to effect a continuing waiver of the provisions being waived and no such waiver in any 

instance shall constitute a waiver in any other instance or for any other purpose or impair the 

right of the party against whom such waiver is claimed in all other instances or for all other 

purposes to require full compliance with such provision. The failure of any party to enforce any 

provision of this Agreement shall not be construed as a waiver of such provision and shall not 

affect the right of such party thereafter to enforce each provision of this Agreement in 

accordance with its terms. 

(g) Notices. Any notice or other communication required or which may be given 

hereunder shall be in writing and shall be sent by certified or regular mail, by private national 

courier service (return receipt requested, postage prepaid), by personal delivery, by electronic 

mail or by facsimile transmission. Such notice or communication shall be deemed given (i) if 

mailed, two days after the date of mailing, (ii) if sent by national courier service, one Business 

Day after being sent, (iii) if delivered personally, when so delivered, (iv) if sent by electronic 

mail, on the Business Day such electronic mail is transmitted, or (v) if sent by facsimile 

transmission, on the Business Day such facsimile is transmitted, in each case as follows: 

(A) If to the Company:

The Gymboree Corporation

500 Howard Street

San Francisco, California 94105

Attn: Kimberly MacMillan

Facsimile: (415) 278-7562

Email: kimberly_macmillan@gymboree.com

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with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

300 North LaSalle

Chicago, Illinois 60654

Attn: Steven Serajeddini

 Craig Garvey

Facsimile: (312) 862-2200

E-mail: steven.serajeddini@kirkland.com

craig.garvey@kirkland.com

(B) If to the Holders (or to any of them), at their addresses as they appear in 

the records of the Company or the records of the transfer agent or registrar, if any, for the 

New Gymboree Common Shares.

If any time period for giving notice or taking action hereunder expires on a day 

which is a Saturday, Sunday or legal holiday in the State of New York or the jurisdiction in 

which the Company’s principal office is located, the time period shall automatically be extended 

to the Business Day immediately following such Saturday, Sunday or legal holiday.

(h) Successors and Assigns. This Agreement shall be binding upon and inure to the 

benefit of and be enforceable by the parties hereto and their respective successors and assigns 

(including any trustee in bankruptcy). In addition, and whether or not any express assignment 

shall have been made, the provisions of this Agreement which are for the benefit of the Holders 

of Registrable Securities (or any portion thereof) as such shall be for the benefit of and 

enforceable by any subsequent holder of any Registrable Securities (or of such portion thereof); 

provided, that such subsequent holder of Registrable Securities shall be required to execute a 

joinder to this Agreement in form and substance reasonably satisfactory to the Company, 

agreeing to be bound by its terms. No assignment or delegation of this Agreement by the 

Company, or any of the Company’s rights, interests or obligations hereunder, shall be effective 

against any Holder without the prior written consent of such Holder.

(i) Execution and Counterparts. This Agreement may be executed simultaneously 

in two or more counterparts, any one of which need not contain the signatures of more than one 

party, but all such counterparts taken together shall constitute one and the same Agreement.

(j) Delivery by Facsimile. This Agreement, the agreements referred to herein, and

each other agreement or instrument entered into in connection herewith or therewith or 

contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and 

delivered by means of a facsimile machine or other electronic means, shall be treated in all 

manner and respects as an original agreement or instrument and shall be considered to have the 

same binding legal effect as if it were the original signed version thereof delivered in person. At 

the request of any party hereto or to any such agreement or instrument, each other party hereto or 

thereto shall re-execute original forms thereof and deliver them to all other parties. No party 

hereto or to any such agreement or instrument shall raise the use of a facsimile machine or other 

electronic means to deliver a signature or the fact that any signature or agreement or instrument 

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was transmitted or communicated through the use of a facsimile machine or other electronic 

means as a defense to the formation or enforceability of a contract and each such party forever 

waives any such defense.

(k) Governing Law; Venue. This Agreement shall be governed by, and construed 

in accordance with, the laws of the State of New York, without giving effect to any choice of law 

or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) 

to the extent such rules or provisions would cause the application of the laws of any jurisdiction 

other than the State of New York. Each of the parties to this Agreement consents and agrees that 

any action to enforce this Agreement or any dispute, whether such dispute arises in law or equity, 

arising out of or relating to this Agreement, shall be brought exclusively in the United States 

District Court for the Southern District of New York or any New York State Court sitting in New 

York City. The parties hereto consent and agree to submit to the exclusive jurisdiction of such 

courts. Each of the parties to this Agreement waives and agrees not to assert in any such dispute, 

to the fullest extent permitted by applicable law, any claim that (i) such party and such party’s 

property is immune from any legal process issued by such courts or (ii) any litigation or other 

proceeding commenced in such courts is brought in an inconvenient forum. The parties hereby 

agree that mailing of process or other papers in connection with any such action or proceeding to 

an address provided in writing by the recipient of such mailing, or in such other manner as may 

be permitted by law, shall be valid and sufficient service thereof and hereby waive any 

objections to service in the manner herein provided. 

(l) Waiver of Jury Trial. Each of the parties to this Agreement hereby agrees to 

waive its respective rights to a jury trial of any claim or cause of action based upon or arising out 

of this Agreement. The scope of this waiver is intended to be all-encompassing of any and all 

disputes that may be filed in any court and that relate to the subject matter of this Agreement, 

including contract claims, tort claims and all other common law and statutory claims. Each party 

hereto acknowledges that this waiver is a material inducement to enter into this Agreement, that 

each has already relied on this waiver in entering into this Agreement, and that each will 

continue to rely on this waiver in their related future dealings. Each party hereto further warrants 

and represents that it has reviewed this waiver with its legal counsel and that it knowingly and 

voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER 

IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR 

IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY 

REFERRING TO THIS SECTION 16(l) AND EXECUTED BY EACH OF THE PARTIES 

HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, 

RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event 

of litigation, this Agreement may be filed as a written consent to a trial by the court.

(m) Severability. Whenever possible, each provision of this Agreement shall be 

interpreted in such manner as to be effective and valid under applicable law, but if any provision 

of this Agreement is held to be invalid, illegal or unenforceable in any respect under any 

applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not 

affect any other provision or the effectiveness or validity of any provision in any other 

jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as 

if such invalid, illegal or unenforceable provision had never been contained herein.

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(n) Descriptive Headings; Interpretation; No Strict Construction. The descriptive 

headings of this Agreement are inserted for convenience only and do not constitute a substantive 

part of this Agreement. Whenever required by the context, any pronoun used in this Agreement 

shall include the corresponding masculine, feminine or neuter forms, and the singular forms of 

nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, 

document, or instrument means such agreement, document, or instrument as amended or 

otherwise modified from time to time in accordance with the terms thereof, and, if applicable, 

hereof. The words “include”, “includes” or “including” in this Agreement shall be deemed to be 

followed by “without limitation”. The use of the words “or,” “either” or “any” shall not be 

exclusive. The parties hereto have participated jointly in the negotiation and drafting of this 

Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be 

construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall 

arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this 

Agreement. All references to laws, rules, regulations and forms in this Agreement shall be 

deemed to be references to such laws, rules, regulations and forms, as amended from time to 

time or, to the extent replaced, the comparable successor thereto in effect at the time. All 

references to agencies, self-regulatory organizations or governmental entities in this Agreement 

shall be deemed to be references to the comparable successors thereto from time to time.

(o) Entire Agreement. This Agreement and any certificates, documents, instruments 

and writings that are delivered pursuant hereto, constitutes the entire agreement and 

understanding of the parties in respect of the subject matter hereof and supersedes all prior 

understandings, agreements or representations by or among the parties, written or oral, to the 

extent they relate in any way to the subject matter hereof.

(p) Termination. The obligations of the Company and of any Holder, other than 

those obligations contained in Section 12 and this Section 16, shall terminate with respect to the 

Company and such Holder as soon as such Holder no longer beneficially owns any Registrable 

Securities.

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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement 

as of the date first written above.

THE GYMBOREE CORPORATION

By: __________________________

Name:

Title:

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IN WITNESS WHEREOF, the undersigned parties have executed this Registration 

Rights Agreement as of the date first written above.

HOLDERS:

[Holder Name]

By:________________________

Name:

Title:

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EXHIBIT G (a)

Comparison of Registration Rights Agreement

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DRAFT SUBJECT TO MATERIAL CHANGE

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (including all exhibits hereto and as may be 

amended, supplemented or amended and restated from time to time in accordance with the terms 

hereof, this “Agreement”) is made and entered into as of [●], 2017, by and among The Gymboree 

Corporation, a Delaware corporation (the “Company”), and the other parties signatory hereto and 

any additional parties identified on the signature pages of any joinder agreement executed and 

delivered pursuant hereto.

WHEREAS, the Company and certain affiliated debtors filed a plan of reorganization 

pursuant to Chapter 11 of the United States Bankruptcy Code, on June 16, 2017, which was 

confirmed by the United States Bankruptcy Court for the Eastern District of Virginia on [●], 

2017 (including all exhibits, schedules and supplements thereto and as amended from time to 

time, the “Plan”); and 

WHEREAS, the Plan provides that the Company will enter into a registration rights 

agreement with each Holder (as defined below) and any Affiliates or Related Funds thereof that 

receive New Gymboree Common Shares; and

WHEREAS, the Company and the Holders are entering into this Agreement in 

furtherance of the aforesaid provisions of the Plan.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this 

Agreement, and for other good and valuable consideration, the receipt and adequacy of which are 

hereby acknowledged, the Company and each of the Holders agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined herein that are 

defined in the Plan have the meanings given such terms in the Plan. As used in this Agreement, 

the following terms shall have the following meanings:

“Advice” has the meaning set forth in Section 16(c).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly 

controlling, controlled by, or under common control with, such Person as of the date on which, 

or at any time during the period for which, the determination of affiliation is being made 

(including any Related Funds of such Person). For purposes of this definition, the term “control” 

(including the correlative meanings of the terms “controlled by” and “under common control 

with”), as used with respect to any Person, means the possession, directly or indirectly, of the 

power to direct or cause the direction of the management policies of such Person, whether 

through the ownership of voting securities, by contract or otherwise. 

“Agreement” has the meaning set forth in the Recitals.

“Automatic Shelf Registration Statement” means an “automatic shelf registration 

statement” as defined in Rule 405 promulgated under the Securities Act, as such definition may 

be amended from time to time.

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“beneficially own” (and related terms such as “beneficial ownership” and “beneficial 

owner”) shall have the meaning given to such term in Rule 13d-3 under the Exchange Act, and 

any Person’s beneficial ownership of securities shall be calculated in accordance with the 

provisions of such Rule.

“Board” means the Board of Directors of the Company or any authorized committee 

thereof.

“Bought Deal” has the meaning set forth in Section 8(a).

“Business Day” means any day, other than a Saturday or Sunday or a day on which 

commercial banks in New York City are authorized or required by law to be closed.

“Commission” means the Securities and Exchange Commission.

“Company” has the meaning set forth in the Preamble and includes the Company’s

successors by merger, acquisition, reorganization or otherwise.

“Counsel to the Holders” means (i) with respect to any Demand Registration, the counsel 

selected by the Holders of a majority of the Registrable Securities initially requesting such 

Demand Registration and (ii) with respect to any Underwritten Takedown or Piggyback 

Offering, the counsel selected by the Majority Holders.

“Demand Registration” has the meaning set forth in Section 5(a).

“Demand Registration Request” has the meaning set forth in Section 5(a).

“Effective Date” means the date that a Registration Statement filed pursuant to this 

Agreement is first declared effective by the Commission.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules 

and regulations promulgated thereunder. 

“Form S-1” means Form S-1 under the Securities Act, or any other form hereafter 

adopted by the Commission for the general registration of securities under the Securities Act.

“Form S-3” means Form S-3 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-3.

“Form S-4” means Form S-4 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-4.

“Form S-8” means Form S-8 under the Securities Act, or any other form hereafter 

adopted by the Commission having substantially the same usage as Form S-8.

“FINRA” has the meaning set forth in Section 10.

“Grace Period” has the meaning set forth in Section 7(a)(B).

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“Holder” or “Holders” means any party to the Backstop Commitment Agreement that is 

also a party signatory to this Agreement, other than the Company, and any additional parties 

identified on the signature pages of any joinder agreement executed and delivered pursuant to 

this Agreement. A Person shall cease to be a Holder hereunder at such time as it ceases to hold 

any Registrable Securities.

“Indemnified Party” has the meaning set forth in Section 12(c).

“Indemnifying Party” has the meaning set forth in Section 12(c).

“Initial Shelf Expiration Date” has the meaning set forth in Section 2(f).

“Initial Shelf Participation Trigger Date” has the meaning set forth in Section 2(a).

“Initial Shelf Registration Statement” has the meaning set forth in Section 2(a).

“Lockup Period” has the meaning set forth in Section 11(a). 

“Losses” has the meaning set forth in Section 12(a).

“Majority Holders” means, with respect to any Underwritten Offering, the holders of a 

majority of the Registrable Securities to be included in such Underwritten Offering held by all 

Holders that have made the request requiring the Company to conduct such Underwritten 

Offering (but not including any Holders that have exercised “piggyback” rights hereunder to be 

included in such Underwritten Offering).

“New Gymboree Common Shares” means the common shares of the Company to be 

issued pursuant to the Plan.

“Other Holder” has the meaning set forth in Section 8(b).

“Person” means an individual or corporation, partnership, trust, incorporated or 

unincorporated association, joint venture, limited liability company, joint stock company, 

government (or an agency or subdivision thereof) or other entity of any kind.

“Piggyback Notice” has the meaning set forth in Section 8(a).

“Piggyback Offering” has the meaning set forth in Section 8(a).

“Plan” has the meaning set forth in the Recitals.

“Plan Effective Date” shall mean the date on which the Plan becomes effective.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, 

without limitation, an investigation or partial proceeding, such as a deposition), whether 

commenced or threatened.

“Prospectus” means the prospectus included in a Registration Statement (including, 

without limitation, a prospectus that includes any information previously omitted from a 

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prospectus filed as part of an effective registration statement in reliance upon Rule 430A 

promulgated under the Securities Act), as amended or supplemented by any prospectus 

supplement, with respect to the terms of the offering of any portion of the Registrable Securities 

covered by a Registration Statement, and all other amendments and supplements to the 

Prospectus, including post-effective amendments, and all material incorporated by reference or 

deemed to be incorporated by reference in such Prospectus.

“Registrable Securities” means, collectively, (a) as of the Plan Effective Date, all New 

Gymboree Common Shares issued to any Holder or to any Affiliate or Related Fund of any 

Holder, either directly or pursuant to a joinder or assignment and any additional New Gymboree 

Common Shares acquired by any Holder, Affiliate or Related Fund of any Holder in open market 

or other purchases and issued or issuable to any Holder, Affiliate or Related Fund of any Holder, 

after the Plan Effective Date and (b) any additional New Gymboree Common Shares paid, issued 

or distributed in respect of any such securities by way of a stock dividend, stock split or 

distribution, or in connection with a combination of securities, and any security into which such 

New Gymboree Common Shares shall have been converted or exchanged in connection with a 

recapitalization, reorganization, reclassification, merger, consolidation, exchange, distribution or 

otherwise; provided, however, that as to any Registrable Securities, such securities shall cease to 

constitute Registrable Securities upon the earliest to occur of: (i) the date on which such 

securities are disposed of pursuant to an effective Registration Statement or (ii) the date on 

which such securities are disposed of pursuant to Rule 144 (or any similar provision then in 

effect) promulgated under the Securities Act; provided further, however, that Registrable 

Securities shall not otherwise cease to constitute Registrable Securities due solely to the fact that 

such securities may be sold without restriction by the Commission.

“Registration Statement” means any one or more registration statements of the Company 

filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant 

to the provisions of this Agreement (including, without limitation, any Shelf Registration 

Statement), amendments and supplements to such registration statements, including posteffective amendments, all exhibits and all material incorporated by reference or deemed to be 

incorporated by reference in such Registration Statements.

“Related Fund” means (i) any investment funds or other entities who are advised by the 

same investment advisor and (ii) any investment advisor with respect to an investment fund or 

entity it advises.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Rule 144A” means Rule 144A promulgated by the Commission pursuant to the 

Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation 

hereafter adopted by the Commission having substantially the same effect as such rule.

“Rule 158” means Rule 158 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

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“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities 

Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter 

adopted by the Commission having substantially the same effect as such rule.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and 

regulations promulgated thereunder.

“Selling Stockholder Questionnaire” means a questionnaire reasonably adopted by the 

Company from time to time.

“Shelf Registration Statement” means a Registration Statement filed with the 

Commission in accordance with the Securities Act for the offer and sale of Registrable Securities 

by Holders on a continuous or delayed basis pursuant to Rule 415.

“Significant Holder” means any Holder who holds at least 5.0% of the New Gymboree 

Common Shares (or any securities convertible into or exchangeable or exercisable for such New 

Gymboree Common Shares).

“Trading Day” means a day during which trading in the New Gymboree Common Shares 

occurs in the Trading Market, or if the New Gymboree Common Shares are not listed on a 

Trading Market, a Business Day.

“Trading Market” means whichever of the New York Stock Exchange, the NYSE MKT, 

the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital 

Market, OTC Bulletin Board, or OTC Markets Group marketplace on which the New Gymboree 

Common Shares are listed or quoted for trading on the date in question.

“Transfer” has the meaning set forth in Section 14.

“Underwritten Offering” means an offering of Registrable Securities under a Registration 

Statement in which the Registrable Securities are sold to an underwriter for reoffering to the 

public.

“Underwritten Takedown” has the meaning set forth in Section 2(h).

2. Initial Shelf Registration. 

(a) The Company shall prepare a Shelf Registration Statement (as may be amended 

from time to time, the “Initial Shelf Registration Statement”), and shall include in the Initial 

Shelf Registration Statement the Registrable Securities of each Holder who shall request 

inclusion therein of some or all of their Registrable Securities by checking the appropriate box 

on the signature page of such Holder hereto or by written notice to the Company no later, 

provided that such notice may not be delivered earlier than 30[ ] days after the Plan Effective 

Date. (the “Initial Shelf Participation Trigger Date”). The Company shall file the Initial Shelf 

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Registration Statement with the Commission on or prior to the [60]1th60th day following the 

Plan EffectiveInitial Shelf Participation Trigger Date; provided, however, that the Company 

shall not be required to file or cause to be declared effective the Initial Shelf Registration 

Statement unlessuntil 60 days after Holders constituting at least [ ] percent ([ ]%) of all 

Registrable Securities properly request the inclusion in the Initial Shelf Registration Statement 

of Registrable Securities constituting at least fifteen percent (15%) of allsuch Registrable 

Securities, and such Holders otherwise timely comply with the requirements of this Agreement 

with respect to the inclusion of such Registrable Securities in the Initial Shelf Registration 

Statement.

(b) The Company shall include in the Initial Shelf Registration Statement all 

Registrable Securities whose inclusion has been timely requested as aforesaid; provided, 

however, that the Company shall not be required to include an amount of Registrable Securities 

in excess of the amount as may be permitted to be included in such Registration Statement 

under the rules and regulations of the Commission and the applicable interpretations thereof by 

the staff of the Commission.

(c) [Upon the request of any Holder whose Registrable Securities are not included 

in the Initial Shelf Registration Statement at the time of such request, the Company shall 

amend the Initial Shelffile a new Registration Statement to include the Registrable Securities of 

such Holder; provided that the Company as well as all previously registered Registrable 

Securities under Section 2 (for the avoidance of doubt, any such request shall not be required to 

amend the Initial Shelfconstitute a Demand Registration Statement more than once every fiscal 

quarter of the Company.] Request (as defined below)).

(d) Within seven (7) days after receiving a request pursuant to Section 2(c), the 

Company shall give written notice of such request to all other Holders of Registrable Securities 

and shall include in such amendmentNew Registration Statement all such Registrable 

Securities with respect to which the Company has received written requests for inclusion 

therein within twenty (20) days after the Company’s giving of such notice, provided that such 

Registrable Securities are not already covered by an existing and effective Registration 

Statement that may be utilized for the offer and sale of the Registrable Securities requested to 

be registered in the manner so requested.

(e) The Initial Shelf Registration Statement shall be on Form S-1; provided, 

however, that, if the Company becomes eligible to register the Registrable Securities for resale 

by the Holders on Form S-3 (including without limitation a Form S-3 filed as an Automatic 

Shelf Registration Statement), the Company shall be entitled to amend the Initial Shelf 

Registration Statement to a Shelf Registration Statement on Form S-3 or file a Shelf 

Registration Statement on Form S-3 in substitution of the Initial Shelf Registration Statement 

as initially filed.

(f) The Company shall use its reasonable best efforts to cause the Initial Shelf 

Registration Statement to be declared effective by the Commission as promptly as practicable, 

and shall use its reasonable best efforts to keep such Initial Shelf Registration Statement 

 

1

Subject to continuing discussion.

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continuously effective, and not subject to any stop order, injunction or other similar order or 

requirement of the Commission, until the earlier of (i) the date the Company (A) is eligible to 

register the Registrable Securities for resale by Holders on Form S-3 and (B) has filed such 

Registration Statement with the Commission and which is effective and (ii) the date that all 

Registrable Securities covered by the Initial Shelf Registration Statement shall cease to be 

Registrable Securities (such earlier date, the “Initial Shelf Expiration Date”). In the event of 

any stop order, injunction or other similar order or requirement of the Commission relating to 

the Initial Shelf Registration Statement, if any Registrable Securities covered by the Initial 

Shelf Registration Statement remain unsold, the period during which the Initial Shelf 

Registration Statement shall be required to remain effective will be extended by the number of 

days during which such stop order, injunction or similar order or requirement is in effect.

(g) If the Initial Shelf Registration Statement is on Form S-1, then for so long as 

any Registrable Securities covered by the Initial Shelf Registration Statement remain unsold, 

the Company will file any supplements to the Prospectus or post-effective amendments

required to be filed by applicable law in order to incorporate into such Prospectus any Current 

Reports on Form 8-K necessary or required to be filed by applicable law, any Quarterly 

Reports on Form 10-Q or any Annual Reports on Form 10-K filed by the Company with the 

Commission, or any other information necessary so that (i) the Initial Shelf Registration 

Statement shall not include any untrue statement of material fact or omit to state any material 

fact required to be stated therein or necessary to make the statements therein not misleading, 

and (ii) the Company complies with its obligations under Item 512(a)(1) of Regulation S-K; 

provided, however, that these obligations remain subject to the Company’s rights under Section 

7 of this Agreement. 

(h) Upon the demand of one or more Holders, the Company shall facilitate a 

“takedown” of Registrable Securities in the form of an Underwritten Offering (each, an 

“Underwritten Takedown”), in the manner and subject to the conditions described in Section 6

of this Agreement, provided that (i) the number of securities included in such “takedown” shall 

equal at least twenty-five percent (25%) of all Registrable Securities at such time and (ii) the 

Registrable Securities requested to be sold by the Holders in such “takedown” shall have an 

anticipated aggregate gross offering price (before deducting underwriting discounts and 

commission) of at least $75 million. 

3. Subsequent Shelf Registration Statements

(a) After (i) the Effective Date of the Initial Shelf Registration Statement and prior 

to the Initial Shelf Expiration Date and (ii) for so long as any Registrable Securities remain 

outstanding, the Company shall use its best efforts to (A) ensure that it will be eligible to 

register the Registrable Securities on Form S-3 after the Initial Shelf Expiration Date, and (B) 

meet the requirements of General Instruction VII of Form S-1 after the Initial Shelf Expiration 

Date. 

(b) After the Initial Shelf Expiration Date and for so long as any Registrable 

Securities remain outstanding, the Company shall use its best efforts to (A) be eligible and/or 

to maintain its eligibility to register the Registrable Securities on Form S-3, and (B) meet the 

requirements of General Instruction VII of Form S-1. 

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(c) After the Initial Shelf Expiration Date and for so long as any Registrable 

Securities remain outstanding, if there is not an effective Registration Statement which 

includes the Registrable Securities that are currently outstanding, the Company shall (i) if the 

Company is eligible to register the Registrable Securities on Form S-3, promptly file a Shelf 

Registration Statement on Form S-3 and use its reasonable best efforts to cause such 

Registration Statement to be declared effective or (ii) promptly file a Shelf Registration 

Statement on Form S-1 and use its reasonable best efforts to cause such Registration Statement 

to be declared effective and for so long as any Registrable Securities covered by such Shelf 

Registration on Form S-1 remain unsold, the Company will file any supplements to the 

Prospectus or post-effective amendments required to be filed by applicable law in order to 

incorporate into such Prospectus any Current Reports on Form 8-K necessary or required to be 

filed by applicable law, any Quarterly Reports on Form 10-Q or any Annual Reports on Form 

10-K filed by the Company with the Commission, or any other information necessary so that 

(x) such Shelf Registration shall not include any untrue statement of material fact or omit to 

state any material fact required to be stated therein or necessary in order to make the statements 

therein not misleading, and (y) the Company complies with its obligations under Item 

512(a)(1) of Regulation S-K; provided, however, that these obligations remain subject to the 

Company’s rights under Section 7 of this Agreement.

4. Quotation on OTC Market

(a) Until and unless (x) the New Gymboree Common Shares are listed on a national 

securities exchange or (y) the New Gymboree Common Shares may be sold by any and all 

Holders without restriction by the Commission pursuant to a Registration Statement in an atthe-market offering, the Company shall use its reasonable best efforts to cause the New 

Gymboree Common Shares to be quoted on any of the OTCBB, OTCQX or OTCQB markets 

as promptly as practicable after the Plan Effective Date and shall thereafter use its reasonable 

best efforts to maintain such quotation.

5. Demand Registration

(a) At any time and from time to time beginning one hundred eighty (180)[ ( )]

days after the Plan Effective Date, any Holder or group of Holders may request in writing 

(“Demand Registration Request”) that the Company effect the registration of all or part of such 

Holder’s or Holders’ Registrable Securities with the Commission under and in accordance with 

the provisions of the Securities Act (a “Demand Registration”). The Company will file a 

Registration Statement covering such Holder’s or Holders’ Registrable Securities requested to be 

registered, on or prior to (x) the 60th day following a Demand Registration Request (if no Initial 

Shelf Registration Statement has been filed and declared effective) or (y) the 30th day following 

a Demand Registration Request (if an Initial Shelf Registration Statement has been filed and 

declared effective), and shall use its reasonable best efforts to cause such Registration Statement 

to be declared effective, as promptly as practicable after receipt of such request; provided, 

however, that the Company will not be required to file a Registration Statement pursuant to this 

Section 5(a):

(A) unless (i) the number of Registrable Securities requested to be registered 

on such Registration Statement equals at least (x) [ ] percent ([ ]%) of all Registrable 

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Securities at such time (if no Initial Shelf Registration Statement has been filed and 

declared effective) or (y) twenty-five percent (25%) of all Registrable Securities at such 

time or(if an Initial Shelf Registration Statement has been filed and declared effective) 

and (ii) the Registrable Securities requested to be sold by the Holders pursuant to such 

Registration Statement have an anticipated aggregate gross offering price (before 

deducting underwriting discounts and commission) of at least $2550 million; 

(B) if the Registrable Securities requested to be registered are already covered 

by an existing and effective Registration Statement and such Registration Statement may 

be utilized for the offer and sale of the Registrable Securities requested to be registered;

(C) if a registration statement filed by the Company shall have previously 

been initially declared effective by the Commission within the one hundred eighty (180) 

days preceding the date such Demand Registration Request is made; and

(D) if the number of Demand Registration Requests previously made pursuant 

to this Section 5(a) shall exceed five (5); provided, however, that a Demand Registration 

Request shall not be considered made for purposes of this clause (D) unless the requested 

Registration Statement has been declared effective by the Commission for more than 

75% of the full amount of Registrable Securities for which registration has been 

requested.

(b) A Demand Registration Request shall specify (i) the then-current name and 

address of such Holder or Holders, (ii) the aggregate number of Registrable Securities requested 

to be registered, (iii) the total number of Registrable Securities then beneficially owned by such 

Holder or Holders, and (iv) the intended means of distribution. If at the time the Demand 

Registration Request is made the Company appears, based on public information available to 

such Holder or Holders, eligible to use Form S-3 for the offer and sale of the Registrable 

Securities, the Holder or Holders making such request may request that the registration be in the 

form of a Shelf Registration Statement (for the avoidance of doubt, the Company shall not be 

under the obligation to file a Shelf Registration on Form S-3 if, upon the advice of its counsel, it 

is not eligible to make such a filing).

(c) The Company may satisfy its obligations under Section 5(a) hereof by amending 

(to the extent permitted by applicable law) any registration statement previously filed by the 

Company under the Securities Act, so that such amended registration statement will permit the 

disposition (in accordance with the intended methods of disposition specified as aforesaid) of all 

of the Registrable Securities for which a Demand Registration Request has been properly made 

under Section 5(b) hereof. If the Company so amends a previously filed registration statement, it 

will be deemed to have effected a registration for purposes of Section 5(a) hereof; provided, 

however, that the Effective Date of the amended registration statement, as amended pursuant to 

this Section 5(c), shall be the “the first day of effectiveness” of such Registration Statement for 

purposes of determining the period during which the Registration Statement is required to be 

maintained effective in accordance with Section 5(e) hereof.

(d) Within seven (7) days after receiving a Demand Registration Request, the 

Company shall give written notice of such request to all other Holders of Registrable Securities 

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and shall, subject to the provisions of Section 6(c) in the case of an Underwritten Offering, 

include in such registration all such Registrable Securities with respect to which the Company 

has received written requests for inclusion therein within twenty (20) days after the Company’s 

giving of such notice, provided that such Registrable Securities are not already covered by an 

existing and effective Registration Statement that may be utilized for the offer and sale of the 

Registrable Securities requested to be registered in the manner so requested.

(e) The Company will use its reasonable efforts to keep a Registration Statement that 

has become effective as contemplated by this Section 5 continuously effective, and not subject to 

any stop order, injunction or other similar order or requirement of the Commission:

(A) in the case of a Registration Statement other than a Shelf Registration 

Statement, until all Registrable Securities registered thereunder have been sold pursuant 

to such Registration Statement, but in no event later than two hundred seventy (270) days 

from the Effective Date of such Registration Statement; and

(B) in the case of a Shelf Registration Statement, until the earlier of: (x) three 

(3) years following the Effective Date of such Shelf Registration Statement; and (y) the 

date that all Registrable Securities covered by such Shelf Registration Statement shall 

cease to be Registrable Securities;

provided, however, that in the event of any stop order, injunction or other similar order or 

requirement of the Commission relating to any Shelf Registration Statement, if any Registrable 

Securities covered by such Shelf Registration Statement remain unsold, the period during which 

such Shelf Registration Statement shall be required to remain effective will be extended by the 

number of days during which such stop order, injunction or similar order or requirement is in 

effect; provided further, however, that if any Shelf Registration Statement was initially declared 

effective on Form S-3 and, prior to the date determined pursuant to Section 5(e)(B), the 

Company becomes ineligible to use Form S-3, the period during which such Shelf Registration 

Statement shall be required to remain effective will be extended by the number of days during 

which the Company did not have an effective Registration Statement covering unsold 

Registrable Securities initially registered on such Shelf Registration Statement.

(f) The Holder or Holders making a Demand Registration Request may, at any time 

prior to the Effective Date of the Registration Statement relating to such registration, revoke their 

request for the Company to effect the registration of all or part of such Holder’s or Holders’ 

Registrable Securities by providing a written notice to the Company. If, pursuant to the 

preceding sentence, the entire Demand Registration Request is revoked, then, at the option of the 

Holder or Holders who revoke such request, either (i) such Holder or Holders shall reimburse the 

Company for all of its reasonable and documented out-of-pocket expenses incurred in the 

preparation, filing and processing of the Registration Statement, which out-of-pocket expenses, 

for the avoidance of doubt, shall not include overhead expenses and which requested registration 

shall not count as one of the permitted Demand Registration Requests hereunder or (ii) the 

requested registration that has been revoked will be deemed to have been effected for purposes 

of Section 5(a).

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(g) If a Registration Statement filed pursuant to this Section 5 is a Shelf Registration 

Statement, then upon the demand of one or more Holders, the Company shall facilitate a 

“takedown” of Registrable Securities in the form of an Underwritten Offering, in the manner and 

subject to the conditions described in Section 6 of this Agreement, provided that (i) the number 

of securities included in such “takedown” shall equal at least twenty-five percent (25%) of all 

Registrable Securities at such time or (ii) the Registrable Securities requested to be sold by the 

Holders in such “takedown” shall have an anticipated aggregate offering price (before deducting 

underwriting discounts and commission) of at least $75 million.

6. Procedures for Underwritten Offerings. The following procedures shall govern 

Underwritten Offerings pursuant to Section 2(h) or Section 5(g), whether in the case of an 

Underwritten Takedown or otherwise.

(a) (i) The Majority Holders shall select one or more investment banking firm(s) of 

national standing to be the managing underwriter or underwriters for any Underwritten Offering 

pursuant to a Demand Registration Request or an Underwritten Takedown with the consent of 

the Company, which consent shall not be unreasonably withheld, conditioned or delayed and (ii) 

the Company shall select one or more investment banking firms of national standing to be the 

managing underwriter or underwriters for any other Underwritten Offering with the consent of 

the Majority Holders, which consent shall not be unreasonably withheld, conditioned or delayed.

(b) All Holders proposing to distribute their securities through an Underwritten 

Offering, as a condition for inclusion of their Registrable Securities therein, shall agree to enter 

into an underwriting agreement with the underwriters; provided, however, that the underwriting 

agreement is in customary form and reasonably acceptable to the Majority Holders and provided

further, however, that no Holder of Registrable Securities included in any Underwritten Offering 

shall be required to make any representations or warranties to the Company or the underwriters 

(other than representations and warranties regarding (i) such Holder’s ownership of its 

Registrable Securities to be sold or transferred, (ii) such Holder’s power and authority to effect 

such transfer and (iii) such matters pertaining to compliance with securities laws as may be 

reasonably requested). 

(c) If the managing underwriter or underwriters for an Underwritten Offering 

pursuant to a Demand Registration or an Underwritten Takedown advises the Holders that the 

total amount of Registrable Securities or other New Gymboree Common Shares permitted to be 

registered is such as to materially adversely affect the success of such Underwritten Offering, the 

number of Registrable Securities or other New Gymboree Common Shares to be registered on 

such Registration Statement will be reduced as follows: first, the Company shall reduce or 

eliminate the securities of the Company to be included by any Person other than a Holder or the 

Company; second, the Company shall reduce or eliminate any securities of the Company to be 

included by the Company; and third, the Company shall reduce the number of Registrable 

Securities to be included by Holders on a pro rata basis based on the total number of Registrable 

Securities requested by the Holders to be included in the Underwritten Offering.

(d) Within three (3) days after receiving a request for an Underwritten Offering 

constituting a “takedown” from a Shelf Registration Statement, the Company shall give written 

notice of such request to all other Holders, and subject to the provisions of Section 6(c) hereof, 

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include in such Underwritten Offering all such Registrable Securities with respect to which the 

Company has received written requests for inclusion therein within seven (7) days after the 

Company’s giving of such notice; provided, however, that such Registrable Securities are

covered by an existing and effective Shelf Registration Statement that may be utilized for the 

offering and sale of the Registrable Securities requested to be registered.

(e) The Company will not be required to undertake an Underwritten Offering 

pursuant to Section 2(h) or Section 5(g):

(A) If the Company has undertaken an Underwritten Offering, whether for its 

own account or pursuant to this Agreement, within the one hundred eighty (180) days 

preceding the date of the request to the Company for such Underwritten Offering; and

(B) if the number of Underwritten Offerings previously made pursuant to 

Section 2(h) or Section 5(g) in the immediately preceding twelve (12)-month period shall 

exceed three (3); provided that an Underwritten Offering shall not be considered made 

for purposes of this clause (B) unless the offering has resulted in the disposition by the 

Holders of at least 75% of the amount of Registrable Securities requested to be included. 

7. Grace Periods.

(a) Notwithstanding anything to the contrary herein—

(A) the Company shall be entitled to postpone the filing or effectiveness of, or, 

at any time after a Registration Statement has been declared effective by the Commission, 

suspend the use of, a Registration Statement (including the Prospectus included therein) 

if in the good faith judgment of the Board, such registration, offering or use would 

reasonably be expected to materially affect in an adverse manner or materially interfere 

with any bona fide material financing of the Company or any material transaction under 

consideration by the Company or would require the disclosure of information that has not 

been, and is not otherwise required to be, disclosed to the public and the premature 

disclosure of which would materially affect the Company in an adverse manner; provided 

however, that in the event such Registration Statement relates to a Demand Registration 

Request or an Underwritten Offering pursuant to Section 2(h) or Section 5(g), then the 

Holders initiating such Demand Registration Request or such Underwritten Offering shall 

be entitled to withdraw the Demand Registration Request or request for the Underwritten 

Offering and, if such request is withdrawn, it shall not count against the limits imposed 

pursuant to Section 5(a)(D) or Section 6(e)(B) and the Company shall pay all registration 

expenses in connection with such registration; and

(B) at any time after a Registration Statement has been declared effective by 

the Commission and there is no duty to disclose under applicable law, the Company may 

delay the disclosure of material non-public information concerning the Company if the 

disclosure of such information at the time would, in the good faith judgment of the 

Board, adversely affect the Company (the period of a postponement or suspension as 

described in clause (A) and/or a delay described in this clause (B), a “Grace Period”).

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(b) The Company shall promptly (i) notify the Holders in writing of the existence of 

the event or material non-public information giving rise to a Grace Period (provided that the 

Company shall not disclose the content of such material non-public information to any Holder, 

without the express consent of such Holder) or the need to file a post-effective amendment, as 

applicable, and the date on which such Grace Period will begin, (ii) use reasonable best efforts to 

terminate a Grace Period as promptly as practicable and (iii) notify the Holders in writing of the 

date on which the Grace Period ends.

(c) The duration of any one Grace Period shall not exceed thirty (30) days, and the 

aggregate of all Grace Periods in total during any three hundred sixty-five (365) day period 

shall not exceed forty-five (45) days. For purposes of determining the length of a Grace Period, 

the Grace Period shall be deemed to begin on and include the date the Holders receive the 

notice referred to in clause (i) of Section 7(b) and shall end on and include the later of the date 

the Holders receive the notice referred to in clause (iii) of Section 7(b) and the date referred to 

in such notice. In the event the Company declares a Grace Period, the period during which the 

Company is required to maintain the effectiveness of an Initial Shelf Registration Statement or 

a Registration Statement filed pursuant to a Demand Registration Request shall be extended by 

the number of days during which such Grace Period is in effect.

8. Piggyback Registration

(a) If at any time, and from time to time, the Company proposes to—

(A) file a registration statement under the Securities Act with respect to an 

underwritten offering of New Gymboree Common Shares of the Company or any 

securities convertible or exercisable into New Gymboree Common Shares (other than 

with respect to a registration statement (i) on Form S-8 or any successor form thereto, (ii) 

on Form S-4 or any successor form thereto or (iii) another form not available for 

registering the Registrable Securities for sale to the public), whether or not for its own 

account; or 

(B) conduct an underwritten offering constituting a “takedown” of a class of 

New Gymboree Common Shares or any securities convertible or exercisable into New 

Gymboree Common Shares registered under a shelf registration statement previously 

filed by the Company;

the Company shall give written notice (the “Piggyback Notice”) of such proposed filing or 

underwritten offering to the Holders at least ten (10) Business Days before the anticipated filing 

date (provided that in the case of a “bought deal,” “registered direct offering” or “overnight 

transaction” (a “Bought Deal”), such Piggyback Notice shall be given not less than two (2) 

Business Days prior to the expected date of commencement of marketing efforts. Such notice 

shall include the number and class of securities proposed to be registered or offered, the 

proposed date of filing of such registration statement or the conduct of such underwritten 

offering, any proposed means of distribution of such securities, any proposed managing 

underwriter of such securities and a good faith estimate by the Company of the proposed 

maximum offering price of such securities as such price is proposed to appear on the front cover 

page of such registration statement (or, in the case of an Underwritten Offering, would appear on 

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the front cover page of a registration statement), and shall offer the Holders the opportunity to 

register such amount of Registrable Securities as each Holder may request on the same terms and 

conditions as the registration of the Company’s and/or the holders of other securities of the 

Company securities, as the case may be (a “Piggyback Offering”). Subject to Section 8(b), the 

Company will include in each Piggyback Offering all Registrable Securities for which the 

Company has received written requests for inclusion within seven (7) Business Days after the 

date the Piggyback Notice is given (provided that in the case of a Bought Deal, such written 

requests for inclusion must be received within two (2) Business Days after the date the 

Piggyback Notice is given); provided, however, that in the case of the filing of a registration 

statement, such Registrable Securities are not otherwise registered pursuant to an existing and 

effective Shelf Registration Statement under this Agreement, but in such case, the Company 

shall include such Registrable Securities in such underwritten offering if the Shelf Registration 

Statement may be utilized for the offering and sale of the Registrable Securities requested to be 

offered; provided further, however, that in the case of an underwritten offering in the form of a 

“takedown” under a shelf registration statement, such Registrable Securities are covered by an 

existing and effective Shelf Registration Statement that may be utilized for the offering and sale 

of the Registrable Securities requested to be offered. 

(b) The Company will cause the managing underwriter or underwriters of the 

proposed offering to permit the Holders that have requested Registrable Securities to be 

included in the Piggyback Offering to include all such Registrable Securities on the same terms 

and conditions as any similar securities, if any, of the Company. Notwithstanding the 

foregoing, if the managing underwriter or underwriters of such underwritten offering advises 

the Company and the selling Holders in writing that, in its view, the total amount of securities 

that the Company, such Holders and any other holders entitled to participate in such offering 

(“Other Holders”) propose to include in such offering is such as to materially adversely affect 

the success of such underwritten offering, then:

(A) if such Piggyback Offering is an underwritten primary offering by the 

Company for its own account, the Company will include in such Piggyback Offering: (i) 

first, all securities to be offered by the Company; (ii) second, up to the full amount of 

securities requested to be included in such Piggyback Offering by the Holders; and (iii) 

third, up to the full amount of securities requested to be included in such Piggyback 

Offering by all Other Holders;

(B) if such Piggyback Offering is an underwritten secondary offering for the 

account of Other Holders exercising “demand” rights (including pursuant to a Demand 

Registration Request), the Company will include in such registration: (i) first, all 

securities of the Other Holders exercising “demand” rights (including pursuant to a 

Demand Registration Request) requested to be included therein; (ii) second, up to the full 

amount of securities requested to be included in such Piggyback Offering by the Holders 

entitled to participate therein, allocated pro rata among such Holders on the basis of the 

amount of securities requested to be included therein by each such Holder; (iii) third, up 

to the full amount of securities proposed to be included in the registration by the 

Company; and (iv) fourth, up to the full amount of securities requested to be included in 

such Piggyback Offering by the Other Holders entitled to participate therein, allocated 

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pro rata among such Other Holders on the basis of the amount of securities requested to 

be included therein by each such Other Holder;

such that, in each case, the total amount of securities to be included in such Piggyback Offering 

is the full amount that, in the view of such managing underwriter, can be sold without materially 

adversely affecting the success of such Piggyback Offering.

(c) If at any time after giving the Piggyback Notice and prior to the time sales of 

securities are confirmed pursuant to the Piggyback Offering, the Company determines for any 

reason not to register or delay the registration of the Piggyback Offering, the Company may, at 

its election, give notice of its determination to all Holders, and in the case of such a 

determination, will be relieved of its obligation to register any Registrable Securities in 

connection with the abandoned or delayed Piggyback Offering, without prejudice.

(d) Any Holder of Registrable Securities requesting to be included in a Piggyback 

Offering may withdraw its request for inclusion by giving written notice to the Company of its 

intention to withdraw from that registration, at least three (3) Business Days prior to the 

anticipated Effective Date of the Registration Statement filed in connection with such Piggyback 

Offering, or in the case of a Piggyback Offering constituting a “takedown” off of a shelf 

registration statement, at least three (3) Business Days prior to the anticipated date of the filing 

by the Company under Rule 424 of a supplemental prospectus (which shall be the preliminary 

supplemental prospectus, if one is used in the “takedown”) with respect to such offering; 

provided, however, that (i) the Holder’s request be made in writing and (ii) the withdrawal will 

be irrevocable and, after making the withdrawal, a Holder will no longer have any right to 

include its Registrable Securities in that Piggyback Offering.

9. Registration Procedures. If and when the Company is required to effect any 

registration under the Securities Act as provided in Sections 2(a), 5(a), 6 or 8 of this Agreement, 

the Company shall use its reasonable best efforts to:

(a) prepare and file with the Commission the requisite Registration Statement 

to effect such registration and thereafter use its reasonable best efforts to cause such 

Registration Statement to become and remain effective, subject to the limitations 

contained herein;

(b) prepare and file with the Commission such amendments and supplements 

to such Registration Statement and the Prospectus used in connection therewith as may 

be necessary to keep such Registration Statement effective and to comply with the 

provisions of the Securities Act and the Exchange Act with respect to the disposition of 

all Registrable Securities covered by such Registration Statement until such time as all of 

such Registrable Securities have been disposed of in accordance with the method of 

disposition set forth in such Registration Statement, subject to the limitations contained 

herein;

(c) (i) before filing a Registration Statement or Prospectus or any amendments 

or supplements thereto, at the Company’s expense, furnish to the Holders whose 

securities are covered by the Registration Statement copies of all such documents, other 

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than documents that are incorporated by reference into such Registration Statement or 

Prospectus, proposed to be filed and such other documents reasonably requested by such 

Holders (which may be furnished by email), and afford Counsel to the Holders a 

reasonable opportunity to review and comment on such documents; and (ii) in connection 

with the preparation and filing of each such Registration Statement pursuant to this 

Agreement, (A) upon reasonable advance notice to the Company, give each of the 

foregoing such reasonable access to all financial and other records, corporate documents 

and properties of the Company as shall be necessary, in the reasonable opinion of 

Counsel to the Holders and such underwriters, to conduct a reasonable due diligence 

investigation for purposes of the Securities Act and Exchange Act, and (B) upon 

reasonable advance notice to the Company and during normal business hours, provide 

such reasonable opportunities to discuss the business of the Company with its officers, 

directors, employees and the independent public accountants who have certified its 

financial statements as shall be necessary, in the reasonable opinion of Counsel to the 

Holders and such underwriters, to conduct a reasonable due diligence investigation for 

purposes of the Securities Act and the Exchange Act;

(d) notify each selling Holder of Registrable Securities, promptly after the 

Company receives notice thereof, of the time when such Registration Statement has been 

declared effective or a supplement to any Prospectus forming a part of such Registration 

Statement has been filed;

(e) with respect to any offering of Registrable Securities, furnish to each 

selling Holder of Registrable Securities, and the managing underwriters for such 

Underwritten Offering, if any, without charge, such number of copies of the applicable 

Registration Statement, each amendment and supplement thereto, the Prospectus included 

in such Registration Statement (including each preliminary Prospectus, final Prospectus, 

and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or 

Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” 

as such term is defined under Rule 433 promulgated under the Securities Act), all 

exhibits and other documents filed therewith and such other documents as such seller or 

such managing underwriters may reasonably request including in order to facilitate the 

disposition of the Registrable Securities owned by such seller, and upon request, a copy 

of any and all transmittal letters or other correspondence to or received from, the 

Commission or any other governmental authority relating to such offer;

(f) (i) register or qualify all Registrable Securities covered by such 

Registration Statement under such other securities or Blue Sky laws of such states or 

other jurisdictions of the United States of America as the Holders covered by such 

Registration Statement shall reasonably request in writing, (ii) keep such registration or 

qualification in effect for so long as such Registration Statement remains in effect and 

(iii) take any other action that may be necessary or reasonably advisable to enable such 

Holders to consummate the disposition in such jurisdictions of the securities to be sold by 

such Holders, except that the Company shall not for any such purpose be required to 

qualify generally to do business as a foreign corporation in any jurisdiction wherein it 

would not but for the requirements of this subsection (f) be obligated to be so qualified, 

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to subject itself to taxation in such jurisdiction or to consent to general service of process 

in any such jurisdiction;

(g) cause all Registrable Securities included in such Registration Statement to 

be registered with or approved by such other federal or state governmental agencies or 

authorities as necessary upon the opinion of counsel to the Company or Counsel to the 

Holders of Registrable Securities included in such Registration Statement to enable such 

Holder or Holders thereof to consummate the disposition of such Registrable Securities in 

accordance with their intended method of distribution thereof;

(h) with respect to any Underwritten Offering, obtain and, if obtained, furnish 

to each Holder that is named as an underwriter in such Underwritten Offering and each 

other underwriter thereof, a signed

(A) opinion of outside counsel for the Company (including a 

customary 10b-5 statement), dated the date of the closing under the underwriting 

agreement and addressed to the underwriters, reasonably satisfactory (based on 

the customary form and substance of opinions of issuers’ counsel customarily 

given in such an offering) in form and substance to such underwriters, if any, and

(B) “comfort” letter, dated the date of the underwriting agreement and 

another dated the date of the closing under the underwriting agreement and 

addressed to the underwriters and signed by the independent public accountants 

who have certified the Company’s financial statements included or incorporated 

by reference in such registration statement, reasonably satisfactory (based on the 

customary form and substance of “cold comfort” letters of issuers’ independent 

public accountant customarily given in such an offering) in form and substance to 

such Holder and such underwriters, if any, 

in each case, covering substantially the same matters with respect to such 

Registration Statement (and the Prospectus included therein) and, in the case of 

the accountants’ comfort letter, with respect to events subsequent to the date of 

such financial statements, as are customarily covered in opinions of issuer’s 

counsel and in accountants’ comfort letters delivered to underwriters in such types 

of offerings of securities;

(i) notify each Holder of Registrable Securities included in such Registration 

Statement at any time when a Prospectus relating thereto is required to be delivered under 

the Securities Act, upon discovery that, or upon the happening of any event as a result of 

which, the Prospectus included in such Registration Statement, as then in effect, includes 

an untrue statement of a material fact or omits to state a material fact necessary in order 

to make the statements therein, in the light of the circumstances under which they were 

made, not misleading and for which the Company chooses to suspend the use of the 

Registration Statement and Prospectus in accordance with the terms of this Agreement, 

and, at the written request of any such Holder, promptly prepare and furnish to it a 

reasonable number of copies of a supplement to or an amendment of such Prospectus as 

may be necessary so that, as thereafter delivered to the purchasers of such securities, such 

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Prospectus, as supplemented or amended, shall not include an untrue statement of a 

material fact or omit to state a material fact necessary in order to make the statements 

therein, in the light of the circumstances under which they were made, not misleading;

(j) notify the Holders of Registrable Securities included in such Registration 

Statement promptly of any request by the Commission for the amending or 

supplementing of such Registration Statement or Prospectus or for additional 

information;

(k) advise the Holders of Registrable Securities included in such Registration 

Statement promptly after the Company receives notice or obtains knowledge of any order 

suspending the effectiveness of a registration statement relating to the Registrable 

Securities at the earliest practicable moment and promptly use its reasonable best efforts 

to obtain the withdrawal;

(l) otherwise comply with all applicable rules and regulations of the 

Commission and any other governmental agency or authority having jurisdiction over the 

offering of Registrable Securities, and make available to its stockholders, as soon as 

reasonably practicable, an earnings statement covering the period of at least twelve (12) 

months, but not more than eighteen (18) months, beginning with the first (1st) full 

calendar month after the Effective Date of such Registration Statement, which earnings 

statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 

and which requirement will be deemed satisfied if the Company timely files complete 

and accurate information on Form 10-Q and 10-K and Current Reports on Form 8-K 

under the Exchange Act and otherwise complies with Rule 158;

(m) provide and cause to be maintained a transfer agent and registrar for the 

Registrable Securities included in a Registration Statement no later than the Effective 

Date thereof;

(n) enter into such agreements (including an underwriting agreement in 

customary form) and take such other actions as the Holders beneficially owning a 

majority of the Registrable Securities included in a Registration Statement or the 

underwriters, if any, shall reasonably request in order to expedite or facilitate the 

disposition of such Registrable Securities, including customary indemnification; and 

provide reasonable cooperation, including causing at least one (1) executive officer and a 

senior financial officer to attend and participate in “road shows” and other information 

meetings organized by the underwriters, if any, as reasonably requested; provided, 

however, that the Company shall have no obligation to participate in more than three (3) 

“road shows” in any twelve (12)-month period and such participation shall not 

unreasonably interfere with the business operations of the Company;

(o) if requested by the managing underwriter(s) or the Holders beneficially 

owning a majority of the Registrable Securities being sold in connection with an 

Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective 

amendment such information relating to the plan of distribution for such shares of 

Registrable Securities provided to the Company in writing by the managing underwriters 

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and the Holders of a majority of the Registrable Securities being sold and that is required 

to be included therein relating to the plan of distribution with respect to such Registrable 

Securities, including without limitation, information with respect to the number of 

Registrable Securities being sold to such underwriters, the purchase price being paid 

therefor by such underwriters and with respect to any other terms of the Underwritten 

Offering of the Registrable Securities to be sold in such offering, and make any required 

filings with respect to such information relating to the plan of distribution as soon as 

practicable after notified of the information; 

(p) cooperate with the Holders of Registrable Securities included in a 

Registration Statement and the managing underwriter(s), if any, to facilitate the timely 

preparation and delivery of certificates representing Registrable Securities to be sold and 

not bearing any restrictive legends, and enable such Registrable Securities to be in such 

share amounts and registered in such names as the managing underwriters, or, if none, the 

Holders beneficially owning a majority of the Registrable Securities being offered for 

sale, may reasonably request at least three (3) Business Days prior to any sale of 

Registrable Securities to the underwriters; 

(q) cause all Registrable Securities included in a Registration Statement to be 

listed on a national securities exchange on which similar securities issued by the 

Company are then listed, if at all; and

(r) otherwise use its reasonable best efforts to take all other steps necessary to 

effect the registration of such Registrable Securities contemplated hereby.

In addition, at least fifteen (15) Trading Days prior to the first anticipated filing date of a 

Registration Statement for any registration under this Agreement, the Company will notify each 

Holder of the information the Company requires from that Holder, including any update to or 

confirmation of the information contained in the Selling Stockholder Questionnaire, if any, 

which shall be completed and delivered to the Company promptly upon request and, in any 

event, within five (5) Trading Days prior to the applicable anticipated filing date. Each Holder 

further agrees that it shall not be entitled to be named as a selling security-holder in the 

Registration Statement or use the Prospectus for offers and resales of Registrable Securities at 

any time, unless such Holder has returned to the Company a completed and signed Selling 

Stockholder Questionnaire and a response to any requests for further information as described in 

the previous sentence and, if an Underwritten Offering, entered into an underwriting agreement 

with the underwriters in accordance with Section 6(b). If a Holder of Registrable Securities 

returns a Selling Stockholder Questionnaire or a request for further information, in either case, 

after its respective deadline, the Company shall be permitted to exclude such Holder from being 

a selling security holder in the Registration Statement or any pre-effective or post-effective 

amendment thereto. Each Holder acknowledges and agrees that the information in the Selling 

Stockholder Questionnaire or request for further information as described in this Section 9 will 

be used by the Company in the preparation of the Registration Statement and hereby consents to 

the inclusion of such information in the Registration Statement.

10. Registration Expenses. All fees and expenses incident to the Company’s 

performance of or compliance with its obligations under this Agreement (excluding any 

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underwriting discounts, fees or selling commissions or broker or similar commissions or fees 

(which shall be borne by participating Holders on a pro rata basis), or transfer taxes of any 

Holder) shall be borne by the Company whether or not any Registrable Securities are sold 

pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence 

shall include, without limitation, (i) all registration and filing fees and expenses (including, 

without limitation, fees and expenses (A) with respect to filings required to be made with any 

Trading Market on which the New Gymboree Common Shares are then listed for trading, if any, 

(B) with respect to compliance with applicable state securities or Blue Sky laws (including, 

without limitation, fees and disbursements of counsel for the Company, any Underwriters or 

Holders in connection with Blue Sky qualifications or exemptions of the Registrable Securities 

and determination of the eligibility of the Registrable Securities for investment under the laws of 

such jurisdictions as requested by the Holders) and (C) if not previously paid by the Company in 

connection with an issuer filing, with respect to any filing that may be required to be made by 

any broker through which a Holder intends to make sales of Registrable Securities with the 

Financial Industry Regulatory Authority (“FINRA”) pursuant to FINRA Rule 5110, so long as 

the broker is receiving no more than a customary brokerage commission in connection with such 

sale, (ii) all expenses of any Persons in preparing or assisting in preparing, word processing, 

printing and distributing any Registration Statement, any Prospectus, any free writing prospectus 

and any amendments or supplements thereto, any underwriting agreements, securities sales 

agreements or other similar agreements and any other documents relating to the performance of 

and compliance with this Agreement (including, without limitation, expenses of printing 

certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses 

is reasonably requested by the Holders of a majority of the Registrable Securities included in the 

Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) reasonable fees 

and disbursements of counsel for the Company, (v) the reasonable fees and expenses incurred in 

connection with any road show for Underwritten Offerings, (vi) Securities Act liability 

insurance, if the Company so desires such insurance, (vii) all rating agency fees, if any, and any 

fees associated with making the Registrable Securities eligible for trading through The 

Depository Trust Company, and (viii) fees and expenses of all other Persons retained by the 

Company in connection with the consummation of the transactions contemplated by this 

Agreement. In addition, the Company will pay the reasonable fees and disbursements of the 

Counsel to the Holders, including, for the avoidance of doubt, any expenses of Counsel to the 

Holders in connection with the filing or amendment of any Registration Statement, Prospectus or 

free writing prospectus hereunder or any Underwritten Offering.

11. Lockups.

(a) [In connection with any Underwritten Takedown or underwritten 

registration pursuant to a Demand Registration Request or other underwritten public offering of 

equity securities by the Company, except with the written consent of the underwriters managing 

such offering, no Significant Holder who participates in such offering shall effect any public sale 

or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any 

securities convertible into or exchangeable or exercisable for such securities, without prior 

written consent from the Company, during the seven (7) days prior to and the sixty ([(60])-)-day 

period beginning on the date of closing of such offering (the “Lockup Period”), except as part of 

such offering, provided, that such Lockup Period restrictions are applicable on substantially 

similar terms to the Company and all of its and its subsidiaries’ executive officers and directors; 

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provided that nothing herein will prevent any such Significant Holder from making a distribution 

of Registrable Securities to any of its partners, members or stockholders thereof or a transfer of 

Registrable Securities to an Affiliate or Related Fund that is otherwise in compliance with the 

applicable securities laws, so long as such distributees or transferees, as applicable, agree to be 

bound by the restrictions set forth in this Section 11(a). Each Significant Holder agrees to 

execute a lock-up agreement in favor of the Company’s underwriters to such effect and, in any 

event, that the Company’s underwriters in any relevant offering shall be third party beneficiaries 

of this Section 11(a). The provisions of this Section 11(a) will no longer apply to a Holder once 

such Holder ceases to hold Registrable Securities.]2

(b) In connection with any Underwritten Offering, the Company shall not 

effect any public sale or distribution of equity securities of the Company, or any securities 

convertible into or exchangeable or exercisable for such securities, without prior written consent 

from the Majority Holders, during the Lockup Period, except as part of such offering, provided, 

that such Lockup Period restrictions are applicable on substantially similar terms to the Majority 

Holders. The Company agrees to execute a lock-up agreement in favor of the underwriters in 

any relevant offering to such effect and, in any event, that the underwriters in any relevant 

offering shall be third party beneficiaries of this Section 11(b). Notwithstanding the foregoing, 

the Company may effect a public sale or distribution of securities of the type described above 

and during the periods described above if such sale or distribution is made pursuant to 

registrations on Form S-4 or Form S-8 or as part of any registration of securities of offering and 

sale to employees, directors or consultants of the company and its subsidiaries pursuant to any 

employee stock plan or other employee benefit plan arrangement.

12. Indemnification.

(a) Indemnification by the Company. The Company shall, notwithstanding any 

termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers, 

directors, agents, partners, members, investment manager, managers, stockholders, Affiliates and 

employees of each of them, each Person who controls any such Holder (within the meaning of 

Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, 

partners, members, investment manager, managers, stockholders, agents and employees of each 

such controlling Person, to the fullest extent permitted by applicable law, from and against any 

and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs 

of preparation and investigation and reasonable attorneys’ fees) and expenses (collectively, 

“Losses”), to which any of them may become subject, that arise out of or are based upon (i) any 

untrue or alleged untrue statement of a material fact contained in any Registration Statement, any 

Prospectus or any form of prospectus or in any amendment or supplement thereto or in any 

preliminary prospectus or (ii) any omission or alleged omission to state a material fact required 

to be stated therein or necessary to make the statements therein (in the case of any Prospectus or 

form of prospectus or supplement thereto, in the light of the circumstances under which they 

were made) not misleading, except to the extent, but only to the extent, that (A) such untrue 

statements, alleged untrue statements, omissions or alleged omissions are based upon 

information regarding such Holder furnished in writing to the Company by such Holder 

expressly for use therein, or to the extent that such information relates to such Holder or such 

 

2 TBD

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Holder’s proposed method of distribution of Registrable Securities and was provided by such 

Holder expressly for use in the Registration Statement, such Prospectus or such form of 

Prospectus or in any amendment or supplement thereto, or (B) in the case of an occurrence of an 

event of the type specified in Section 9(i), related to the use by a Holder of an outdated or 

defective Prospectus after the Company has notified such Holder in writing that the Prospectus is 

outdated or defective and prior to the receipt by such Holder of the Advice contemplated and 

defined in Section 16(c) below, but only if and to the extent that following the receipt of the 

Advice, the misstatement or omission giving rise to such Loss would have been corrected. Such 

indemnity shall remain in full force and effect regardless of any investigation made by or on 

behalf of an Indemnified Party (as defined in Section 12(c)), shall survive the transfer of the 

Registrable Securities by the Holders, and shall be in addition to any liability which the 

Company may otherwise have.

(b) Indemnification by Holders. Each Holder shall, severally and not jointly, 

indemnify and hold harmless the Company, its respective directors, officers, agents and 

employees, each Person who controls the Company (within the meaning of Section 15 of the 

Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or 

employees of such controlling Persons, to the fullest extent permitted by applicable law, from 

and against all Losses, as incurred, arising out of or based upon any untrue or alleged untrue 

statement of a material fact contained in any Registration Statement, any Prospectus, or any form 

of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or 

arising out of or relating to any omission or alleged omission of a material fact required to be 

stated therein or necessary to make the statements therein (in the case of any Prospectus, or any 

form of prospectus or supplement thereto, in the light of the circumstances under which they 

were made) not misleading (i) to the extent, but only to the extent, that such untrue statements or 

omissions are based upon information regarding such Holder furnished in writing to the 

Company by such Holder expressly for use therein or (ii) to the extent, but only to the extent, 

that such information relates to such Holder or such Holder’s proposed method of distribution of 

Registrable Securities and was provided by such Holder expressly for use in a Registration 

Statement, such Prospectus or such form of Prospectus or in any amendment or supplement 

thereto or (iii) in the case of an occurrence of an event of the type specified in Section 9(i), to the 

extent, but only to the extent, related to the use by such Holder of an outdated or defective 

Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated 

or defective and prior to the receipt by such Holder of the Advice contemplated in Section 16(c), 

but only if and to the extent that following the receipt of the Advice the misstatement or 

omission giving rise to such Loss would have been corrected. In no event shall the liability of 

any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds 

received by such Holder upon the sale of the Registrable Securities giving rise to such 

indemnification obligation. Such indemnity shall remain in full force and effect regardless of 

any investigation made by or on behalf of an Indemnified Party (as defined in Section 12(c)), 

shall survive the transfer of the Registrable Securities by the Holders, and shall be in addition to 

any liability which the Holder may otherwise have. 

(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or 

asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such 

Indemnified Party shall promptly notify the Person from whom indemnity is sought (the 

“Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the 

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defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified 

Party and the payment of all reasonable fees and expenses incurred in connection with the 

defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not 

relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except 

(and only) to the extent that such failure shall have materially and adversely prejudiced the 

Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such 

Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel 

shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party 

has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed 

promptly to assume the defense of such Proceeding and to employ counsel reasonably 

satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any 

such Proceeding (including any impleaded parties) include both such Indemnified Party and the 

Indemnifying Party, and such Indemnified Party shall have been advised by counsel that in the 

reasonable judgment of such counsel a conflict of interest exists if the same counsel were to 

represent such Indemnified Party and the Indemnifying Party; provided, that the Indemnifying 

Party shall not be liable for the reasonable and documented fees and expenses of more than one 

separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall 

not be liable for any settlement of any such Proceeding effected without its written consent, 

which consent shall not be unreasonably withheld, delayed or conditioned. No Indemnifying 

Party shall, without the prior written consent of the Indemnified Party, effect any settlement of 

any pending Proceeding in respect of which any Indemnified Party is a party, unless such 

settlement includes an unconditional release of such Indemnified Party from all liability on 

claims that are the subject matter of such Proceeding.

Subject to the terms of this Agreement, all reasonable and documented fees and expenses 

of the Indemnified Party (including reasonable and documented fees and expenses to the extent 

incurred in connection with investigating or preparing to defend such Proceeding in a manner not 

inconsistent with this Section 12(c)) shall be paid to the Indemnified Party, as incurred, with 

reasonable promptness after receipt of written notice thereof to the Indemnifying Party; 

provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that 

portion of such fees and expenses applicable to such actions for which such Indemnified Party is 

finally judicially determined to not be entitled to indemnification hereunder. The failure to 

deliver written notice to the Indemnifying Party within a reasonable time of the commencement 

of any such action shall not relieve such Indemnifying Party of any liability to the Indemnified 

Party under this Section 12, except to the extent that the Indemnifying Party is materially and 

adversely prejudiced in its ability to defend such action.

(d) Contribution. If a claim for indemnification under Section 12(a) or (b) is 

unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any 

Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall 

contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in 

such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and 

Indemnified Party in connection with the actions, statements or omissions that resulted in such 

Losses as well as any other relevant equitable considerations. The relative fault of such 

Indemnifying Party and Indemnified Party shall be determined by reference to, among other 

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things, whether any action in question, including any untrue or alleged untrue statement of a 

material fact or omission or alleged omission of a material fact, has been taken or made by, or 

relates to information supplied by, such Indemnifying Party or Indemnified Party, and the 

parties’ relative intent, knowledge, access to information and opportunity to correct or prevent 

such action, statement or omission.

The parties hereto agree that it would not be just and equitable if contribution pursuant to 

this Section 12(d) were determined by pro rata allocation or by any other method of allocation 

that does not take into account the equitable considerations referred to in the immediately 

preceding paragraph. Notwithstanding the provisions of this Section 12(d), no Holder shall be 

required to contribute, in the aggregate, any amount in excess of the amount by which the net 

proceeds actually received by such Holder from the sale of the Registrable Securities subject to 

the Proceeding exceeds the amount of any damages that such Holder has otherwise been required 

to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No 

person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 

Securities Act) shall be entitled to contribution from any Person who was not guilty of such 

fraudulent misrepresentation.

13. Section 4(a)(7), Rule 144 and Rule 144A; Other Exemptions. With a view to 

making available to the Holders of Registrable Securities the benefits of Rule 144 and 

Rule 144A and other rules and regulations of the Commission that may at any time permit a 

Holder of Registrable Securities to sell securities of the Company without registration, until such 

time as when no Registrable Securities remain outstanding, the Company covenants that it will 

(i) if it is subject to the reporting requirement of Section 13 or 15(d) of the Exchange Act, file in 

a timely manner all reports and other documents required, if any, to be filed by it under the 

Securities Act and the Exchange Act and the rules and regulations adopted thereunder, or (ii) if it 

is not subject to the reporting requirement of Section 13 or 15(d) of the Exchange Act, make 

available information necessary to comply with Section 4(a)(7) of the Securities Act and 

Rule 144 and Rule 144A, if available with respect to resales of the Registrable Securities under 

the Securities Act, at all times, all to the extent required from time to time to enable such Holder 

to sell Registrable Securities without registration under the Securities Act within the limitation of 

the exemptions provided by (x) Section 4(a)(7) of the Securities Act and Rule 144 and 

Rule 144A (if available with respect to resales of the Registrable Securities), as such rules may 

be amended from time to time, or (y) any other rules or regulations now existing or hereafter 

adopted by the Commission. Upon the reasonable request of any Holder of Registrable 

Securities, the Company will deliver to such Holder a written statement as to whether it has 

complied with such information requirements, and, if not, the specific reasons for noncompliance.

14. Transfer of Registration Rights. Any Holder may freely assign its rights 

hereunder on a pro rata basis in connection with any sale, transfer, assignment, or other 

conveyance (any of the foregoing, a “Transfer”) of Registrable Securities to any transferee or 

assignee; provided, that all of the following additional conditions are satisfied: (a) such Transfer 

is effected in accordance with applicable securities laws; (b) such transferee or assignee agrees in 

writing to become subject to the terms of this Agreement; and (c) the Company is given written 

notice by such Holder of such Transfer, stating the name and address of the transferee or 

assignee and identifying the Registrable Securities with respect to which such rights are being 

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transferred or assigned and provide the amount of any other capital stock of the Company

beneficially owned by such transferee or assignee; provided further, that (i) any rights assigned 

hereunder shall apply only in respect of the Registrable Securities that are Transferred and not in 

respect of any other securities that the transferee or assignee may hold and (ii) any Registrable 

Securities that are Transferred may cease to constitute Registrable Securities following such 

Transfer in accordance with the terms of this Agreement.

15. Further Assurances. Each of the parties hereto shall execute all such further 

instruments and documents and take all such further action as any other party hereto may 

reasonably require in order to effectuate the terms and purposes of this Agreement.

16. Miscellaneous.

(a) Remedies. Any Person having rights under any provision of this Agreement 

shall be entitled to enforce such rights specifically to recover damages caused by reason of any 

breach of any provision of this Agreement and to exercise all other rights granted by law. The 

parties hereto agree and acknowledge that money damages may not be an adequate remedy for 

any breach of the provisions of this Agreement and that any party may in its sole discretion apply 

to any court of law or equity of competent jurisdiction (without posting any bond or other 

security) for specific performance and for other injunctive relief in order to enforce or prevent 

violation of the provisions of this Agreement.

(b) Compliance. Each Holder covenants and agrees that it will comply with the 

prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption 

therefrom is available) in connection with sales of Registrable Securities pursuant to any 

Registration Statement and shall sell the Registrable Securities only in accordance with a method 

of distribution described in each Registration Statement.

(c) Discontinued Disposition. By its acquisition of Registrable Securities, each 

Holder agrees that, upon receipt of a notice from the Company of the occurrence of a Grace 

Period or any event of the kind described in Section 9(i), such Holder will forthwith discontinue 

disposition of such Registrable Securities under a Registration Statement until it is advised in 

writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have 

been supplemented or amended) may be resumed. The Company may provide appropriate stop 

orders to enforce the provisions of this paragraph.

(d) Preservation of Rights. The Company shall not grant any registration rights to 

third parties which are more favorable than or inconsistent with the rights granted hereunder 

unless any such more favorable rights are concurrently added to the rights granted hereunder.

(e) No Inconsistent Agreements. The Company shall not hereafter enter into any 

agreement with respect to its securities which is inconsistent with or violates the rights granted to 

the Holders in this Agreement. 

(f) Amendments and Waivers. The provisions of this Agreement, including the 

provisions of this sentence, may not be amended, modified or supplemented, or waived unless 

the same shall be in writing and signed by the Company and Holders holding at least a majority 

of the then outstanding Registrable Securities; provided, however, that any party may give a 

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waiver as to itself; provided further, however, that no amendment, modification, supplement, or 

waiver that disproportionately and adversely affects, alters, or changes the interests of any 

Holder shall be effective against such Holder without the prior written consent of such Holder; 

provided further, however, that the definition of “Holders” in Section 1 and the provisions of 

Section 2(c) may not be amended, modified or supplemented, or waived unless in writing and 

signed by all the signatories to this Agreement; and provided further, that the waiver of any 

provision with respect to any Registration Statement or offering may be given by Holders 

holding at least a majority of the then outstanding Registrable Securities entitled to participate in 

such offering or, if such offering shall have been commenced, having elected to participate in 

such offering. Notwithstanding the foregoing, a waiver or consent to depart from the provisions 

hereof with respect to a matter that relates exclusively to the rights of certain Holders and that 

does not directly or indirectly affect the rights of other Holders may be given by Holders of a 

majority of the Registrable Securities to which such waiver or consent relates; provided, 

however, that the provisions of this sentence may not be amended, modified, or supplemented 

except in accordance with the provisions of the immediately preceding sentence. No waiver of 

any terms or conditions of this Agreement shall operate as a waiver of any other breach of such 

terms and conditions or any other term or condition, nor shall any failure to enforce any 

provision hereof operate as a waiver of such provision or of any other provision hereof. No 

written waiver hereunder, unless it by its own terms explicitly provides to the contrary, shall be 

construed to effect a continuing waiver of the provisions being waived and no such waiver in any 

instance shall constitute a waiver in any other instance or for any other purpose or impair the 

right of the party against whom such waiver is claimed in all other instances or for all other 

purposes to require full compliance with such provision. The failure of any party to enforce any 

provision of this Agreement shall not be construed as a waiver of such provision and shall not 

affect the right of such party thereafter to enforce each provision of this Agreement in 

accordance with its terms. 

(g) Notices. Any notice or other communication required or which may be given 

hereunder shall be in writing and shall be sent by certified or regular mail, by private national 

courier service (return receipt requested, postage prepaid), by personal delivery, by electronic 

mail or by facsimile transmission. Such notice or communication shall be deemed given (i) if 

mailed, two days after the date of mailing, (ii) if sent by national courier service, one Business 

Day after being sent, (iii) if delivered personally, when so delivered, (iv) if sent by electronic 

mail, on the Business Day such electronic mail is transmitted, or (v) if sent by facsimile 

transmission, on the Business Day such facsimile is transmitted, in each case as follows: 

(A) If to the Company:

The Gymboree Corporation

500 Howard Street

San Francisco, California 94105

Attn: Kimberly MacMillan

Facsimile: (415) 278-7562

Email: kimberly_macmillan@gymboree.com

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with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

300 North LaSalle

Chicago, Illinois 60654

Attn: Steven Serajeddini

 Craig Garvey

Facsimile: (312) 862-2200

E-mail: steven.serajeddini@kirkland.com

craig.garvey@kirkland.com

(B) If to the Holders (or to any of them), at their addresses as they appear in 

the records of the Company or the records of the transfer agent or registrar, if any, for the 

New Gymboree Common Shares.

If any time period for giving notice or taking action hereunder expires on a day 

which is a Saturday, Sunday or legal holiday in the State of New York or the jurisdiction in 

which the Company’s principal office is located, the time period shall automatically be extended 

to the Business Day immediately following such Saturday, Sunday or legal holiday.

(h) Successors and Assigns. This Agreement shall be binding upon and inure to the 

benefit of and be enforceable by the parties hereto and their respective successors and assigns 

(including any trustee in bankruptcy). In addition, and whether or not any express assignment 

shall have been made, the provisions of this Agreement which are for the benefit of the Holders 

of Registrable Securities (or any portion thereof) as such shall be for the benefit of and 

enforceable by any subsequent holder of any Registrable Securities (or of such portion thereof); 

provided, that such subsequent holder of Registrable Securities shall be required to execute a 

joinder to this Agreement in form and substance reasonably satisfactory to the Company, 

agreeing to be bound by its terms. No assignment or delegation of this Agreement by the 

Company, or any of the Company’s rights, interests or obligations hereunder, shall be effective 

against any Holder without the prior written consent of such Holder.

(i) Execution and Counterparts. This Agreement may be executed simultaneously 

in two or more counterparts, any one of which need not contain the signatures of more than one 

party, but all such counterparts taken together shall constitute one and the same Agreement.

(j) Delivery by Facsimile. This Agreement, the agreements referred to herein, and

each other agreement or instrument entered into in connection herewith or therewith or 

contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and 

delivered by means of a facsimile machine or other electronic means, shall be treated in all 

manner and respects as an original agreement or instrument and shall be considered to have the 

same binding legal effect as if it were the original signed version thereof delivered in person. At 

the request of any party hereto or to any such agreement or instrument, each other party hereto or 

thereto shall re-execute original forms thereof and deliver them to all other parties. No party 

hereto or to any such agreement or instrument shall raise the use of a facsimile machine or other 

electronic means to deliver a signature or the fact that any signature or agreement or instrument 

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was transmitted or communicated through the use of a facsimile machine or other electronic 

means as a defense to the formation or enforceability of a contract and each such party forever 

waives any such defense.

(k) Governing Law; Venue. This Agreement shall be governed by, and construed 

in accordance with, the laws of the State of New York, without giving effect to any choice of law 

or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) 

to the extent such rules or provisions would cause the application of the laws of any jurisdiction 

other than the State of New York. Each of the parties to this Agreement consents and agrees that 

any action to enforce this Agreement or any dispute, whether such dispute arises in law or equity, 

arising out of or relating to this Agreement, shall be brought exclusively in the United States 

District Court for the Southern District of New York or any New York State Court sitting in New 

York City. The parties hereto consent and agree to submit to the exclusive jurisdiction of such 

courts. Each of the parties to this Agreement waives and agrees not to assert in any such dispute, 

to the fullest extent permitted by applicable law, any claim that (i) such party and such party’s 

property is immune from any legal process issued by such courts or (ii) any litigation or other 

proceeding commenced in such courts is brought in an inconvenient forum. The parties hereby 

agree that mailing of process or other papers in connection with any such action or proceeding to 

an address provided in writing by the recipient of such mailing, or in such other manner as may 

be permitted by law, shall be valid and sufficient service thereof and hereby waive any 

objections to service in the manner herein provided. 

(l) Waiver of Jury Trial. Each of the parties to this Agreement hereby agrees to 

waive its respective rights to a jury trial of any claim or cause of action based upon or arising out 

of this Agreement. The scope of this waiver is intended to be all-encompassing of any and all 

disputes that may be filed in any court and that relate to the subject matter of this Agreement, 

including contract claims, tort claims and all other common law and statutory claims. Each party 

hereto acknowledges that this waiver is a material inducement to enter into this Agreement, that 

each has already relied on this waiver in entering into this Agreement, and that each will 

continue to rely on this waiver in their related future dealings. Each party hereto further warrants 

and represents that it has reviewed this waiver with its legal counsel and that it knowingly and 

voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER 

IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR 

IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY 

REFERRING TO THIS SECTION 16(l) AND EXECUTED BY EACH OF THE PARTIES 

HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, 

RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event 

of litigation, this Agreement may be filed as a written consent to a trial by the court.

(m) Severability. Whenever possible, each provision of this Agreement shall be 

interpreted in such manner as to be effective and valid under applicable law, but if any provision 

of this Agreement is held to be invalid, illegal or unenforceable in any respect under any 

applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not 

affect any other provision or the effectiveness or validity of any provision in any other 

jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as 

if such invalid, illegal or unenforceable provision had never been contained herein.

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(n) Descriptive Headings; Interpretation; No Strict Construction. The descriptive 

headings of this Agreement are inserted for convenience only and do not constitute a substantive 

part of this Agreement. Whenever required by the context, any pronoun used in this Agreement 

shall include the corresponding masculine, feminine or neuter forms, and the singular forms of 

nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, 

document, or instrument means such agreement, document, or instrument as amended or 

otherwise modified from time to time in accordance with the terms thereof, and, if applicable, 

hereof. The words “include”, “includes” or “including” in this Agreement shall be deemed to be 

followed by “without limitation”. The use of the words “or,” “either” or “any” shall not be 

exclusive. The parties hereto have participated jointly in the negotiation and drafting of this 

Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be 

construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall 

arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this 

Agreement. All references to laws, rules, regulations and forms in this Agreement shall be 

deemed to be references to such laws, rules, regulations and forms, as amended from time to 

time or, to the extent replaced, the comparable successor thereto in effect at the time. All 

references to agencies, self-regulatory organizations or governmental entities in this Agreement 

shall be deemed to be references to the comparable successors thereto from time to time.

(o) Entire Agreement. This Agreement and any certificates, documents, instruments 

and writings that are delivered pursuant hereto, constitutes the entire agreement and 

understanding of the parties in respect of the subject matter hereof and supersedes all prior 

understandings, agreements or representations by or among the parties, written or oral, to the 

extent they relate in any way to the subject matter hereof.

(p) Termination. The obligations of the Company and of any Holder, other than 

those obligations contained in Section 12 and this Section 16, shall terminate with respect to the 

Company and such Holder as soon as such Holder no longer beneficially owns any Registrable 

Securities.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement 

as of the date first written above.

THE GYMBOREE CORPORATION

By: __________________________

Name:

Title:

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IN WITNESS WHEREOF, the undersigned parties have executed this Registration 

Rights Agreement as of the date first written above.

HOLDERS:

[Holder Name]

By:________________________

Name:

Title:

By checking this box, the Holder signing above hereby requests the inclusion of all of its 

Registrable Securities in the Initial Shelf Registration Statement.

By checking this box, the Holder signing above hereby requests the inclusion of 

_____________________ of its Registrable Securities in the Initial Shelf Registration 

Statement, constituting less than all of its Registrable Securities.

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EXHIBIT H

Members of the New Boards and Section 1129(a)(5) of the Bankruptcy Code Disclosures

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EXHIBIT H

MEMBERS OF THE NEW BOARDS AND

SECTION 1129(A)(5) OF THE BANKRUPTCY CODE DISCLOSURES1

Pursuant to Article IV.J of the Plan and section 1129(a)(5) of the Bankruptcy Code, this 

revised Exhibit H to the Plan Supplement identifies certain members of the New Board of 

Reorganized Gymboree as of the Effective Date.2

Mr. Daniel Griesemer

Mr. Daniel Griesemer has been Chief Executive Officer and President at The Gymboree 

Corporation since May 22, 2017. Mr. Griesemer is an experienced retail executive with an 

established track record of building customer loyalty in an omni-channel environment. He has 

leadership in the specialty-store sector, combined with his operational and financial experience. 

Mr. Griesemer served as the Chief Executive Officer and President of Tilly's, Inc. from February 

21, 2011 to October 7, 2015. Mr. Griesemer served as the President and Chief Executive Officer 

of Coldwater Creek Inc. from October 30, 2007 to September 2009. Mr. Griesemer was 

responsible for its sales, marketing and national retail store expansion plans, as well as all 

distribution center and customer contact center operations. His career spans 24 years in the retail 

apparel industry and joined Coldwater Creek in 2001. Mr. Griesemer served as Executive Vice 

President of Sales and Marketing at Coldwater Creek Inc. from January 2005 to March 2007, 

where he was responsible for all aspects of sales and marketing for its Catalog, Internet and 

Retail sales channels and from April 2004 to January 2005, he served as Executive Vice 

President of Retail. He served as Co-President and Chief Operating Officer of Coldwater Creek 

Inc. from March 28, 2007 to October 30, 2007 and its Senior Vice President of Retail from 

October 2001 to April 2004. Mr. Griesemer began his career with Macy's Stores. Mr. Griesemer 

adapted to the rapidly changing retail marketplace by increasing consumer engagement, 

elevating the customer experience and succeeding in the e-commerce and digital arena. Prior to 

joining Coldwater Creek, from 1989 to 2000, Mr. Griesemer held a number of progressively 

responsible positions with and ultimately served as Divisional Merchandise Manager for Gap 

Inc. and also served with GapKids and Gap Inc.'s International division. From 1983 to 1989, he 

served in a variety of positions at Federated Department Stores. He served as a Director of 

Coldwater Creek Inc. from October 30, 2007 to September 2009. He served as a Director of 

Tilly's, Inc. from February 21, 2011 to October 7, 2015. He holds a Bachelor of Science degree 

in Business Administration from the University of Dayton. Mr. Griesemer attended the executive 

education program at the University of Michigan Ross School of Business.

 

1 Capitalized terms used but undefined herein shall have the meanings ascribed to them in the First Amended 

Joint Chapter 11 Plan of Reorganization of the Gymboree Corporation and Its Debtor Affiliates 

[Docket No. 447] (as amended from time to time, the “Plan”).

2 One (1) additional member of the New Board of Reorganized Gymboree will be selected prior to the Effective 

Date pursuant to the Plan.

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Ms. Shaz Kahng 

Ms. Shaz Kahng currently advises private equity and venture capital firms in the areas of 

retail, footwear, and apparel and serves as a mentor to startups in both the R/GA Westfield Mall 

retail accelerator and the Lazaridis Program. Previously, Ms. Kahng was a board director and 

CMO for OMsignal, a leading smart apparel company. Prior to that, she was president of Lucy 

Activewear, a retailer with 65 stores and over 800 employees where she transformed the 

business. Ms. Kahng introduced numerous strategic, product, marketing, and retail innovations 

and along with her team made the company profitable for the first time in its 12-year history. 

She was one of the few female senior executives at Nike and helped build out Nike’s global 

retail presence and launch Nike+, the chip in the running shoe that “talked” to the iPod nano. 

Ms. Kahng was the Global GM of Nike Cycling, growing revenues 300% and making it 

profitable for the first time. Her last role was as a global director and the number two person 

over the $1 billion Global Women’s Training business. Before Nike, Ms. Kahng was Head of 

Brand Strategy for Wolff Olins, a brand strategy and design firm. Prior to that, Ms. Kahng was a 

managing director at Scient, an Internet business builder that built eLuxury and Sephora.com. 

Before that, she was a partner at Kurt Salmon Associates, a global consulting firm advising the 

world’s leading retail and consumer goods brands. Ms. Kahng achieved record sales and earned 

multiple client awards for outstanding work for a client roster that included Proctor & Gamble, 

Tiffany & Co., Macy’s, Levi Strauss, and The Limited. Ms. Kahng started her career as a 

research scientist for Kraft General Foods. She holds a B.S. in Food Science & Chemistry from 

Cornell University and an MBA in Finance & Marketing from the Wharton School of the 

University of Pennsylvania.

Mr. Ron Beegle 

Mr. Ron Beegle is the founder and chief executive officer of Carriage House Capital 

Advisors, LLC (“Carriage House”). Launched in 2015, the Los Angeles based firm provides 

capital and advisory services to consumer brands and retail companies, as well as private equity 

firms that invest in those industry sectors. Mr. Beegle launched Carriage House prior to his 

retirement as co-founder and operating partner of Goode Partners, LLC, a New York based 

private equity firm that invests primarily in the consumer sector, specifically consumer brands, 

retail companies, and restaurants. Before co-founding Goode Partners, Mr. Beegle was the 

founder and chairman of Global Consumer Retail Investors, a consulting firm that worked 

exclusively for Credit Suisse Private Equity. Prior to becoming involved in private equity, Mr. 

Beegle worked for twenty years in the retail industry, including most recently at Gap Inc., where 

he served first as chief financial officer and then chief operating officer of Banana Republic, 

executive vice president and general manager of Gap Inc. Direct, and finally chief operating 

officer of the company’s flagship Gap division. Mr. Beegle presently serves as a director of 

Aeropostale, Inc. and lead director of Harris Farms, Inc. He is the former non-executive 

chairman of the board of Luxury Optical Holdings, as well as a former board member of Neiman 

Marcus Group and Intermix, Inc. Additionally, Mr. Beegle was a founding director of the USA 

Swimming Foundation and is a former trustee of Allegheny College. Mr. Beegle is a graduate of 

Allegheny College and has an MBA from Stern School of Business at New York University. 

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Mr. Matt Perkal 

Mr. Matt Perkal is a senior analyst at Brigade Capital Management, LP (“Brigade”), 

covering the gaming, retail, and restaurant sectors. Brigade is an SEC-registered investment 

advisor focusing on investing in the global high-yield market. It currently manages 

approximately $18.1 billion in assets specializing in the credit markets, and implements a 

fundamentally driven, “bottom-up” investment process which seeks to achieve long term growth 

of capital independent of the market environment. Prior to joining Brigade, Mr. Perkal worked 

at Deutsche Bank as an analyst in the Leveraged Finance Group. In that capacity, Mr. Perkal 

also spent time on the Leveraged Debt Capital Markets Desk, selling both bank and bond deals. 

Mr. Perkal received a BS in Economics with a concentration in Finance and Accounting from the 

Wharton School of the University of Pennsylvania.

Mr. Brian Hickey

Mr. Brian Hickey serves as a senior analyst on the Senior Corporate Loan team at 

OppenheimerFunds, Inc. (“Oppenheimer”), a global asset management firm with over $240 

billion in assets under management. He currently has analytical responsibilities for the services 

and telecommunications industries. Mr. Hickey’s past industry coverage includes the apparel, 

automotive, chemicals, financials, homebuilding, and paper and packaging industries. Prior to 

joining Oppenheimer in 2009, Mr. Hickey was a vice president at Barclays Capital/Lehman 

Brothers, where he focused on the analysis and valuation of distressed companies. Earlier in his 

career, Mr. Hickey served as a credit analyst at firms including Moody’s, General Motors Asset 

Management, and Fidelity Investments. Mr. Hickey holds a B.A. in Government from 

Dartmouth College and an M.B.A. in Finance and Management from New York University. Mr. 

Hickey is a CFA charterholder.

Mr. Eric Sondag 

Mr. Eric Sondag is a partner at Searchlight Capital Partners, LP (“Searchlight”), a private 

investment firm with operations across North America and Europe. Prior to joining Searchlight 

in 2011, Mr. Sondag worked at GTCR Golder Rauner in Chicago, where he worked primarily on 

investments in the media, information services, and consumer industries. He started his career in 

investment banking at Wasserstein Perella in Chicago in 1998. Mr. Sondag is currently 

Chairman of the Board at Cengage Learning, as well as a board member of TouchTunes and 

M&M Food Market. He is also a member of the Board of Advisors for Georgetown University’s 

McDonough School of Business. Mr. Sondag received a BSc from Georgetown University and 

completed the Executive Management Program at INSEAD in Singapore.

On the Effective Date, the officers of the Reorganized Debtors (including the Chief 

Financial Officer and Chief Restructuring Officer) will be the persons currently serving in such 

positions. After the Effective Date, the Reorganized Debtors and the New Board shall have the 

right to (and may) appoint successors in accordance with the New Organizational Documents 

and applicable law.

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EXHIBIT H (a)

Comparison of Members of the New Boards and Section 1129(a)(5) of the Bankruptcy 

Code Disclosures

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EXHIBIT H

MEMBERS OF THE NEW BOARDS and SectionAND

SECTION 1129(aA)(5) OF THE BANKRUPTCY CODE DISCLOSURES1

of the Bankruptcy Code Disclosures

Pursuant to Article IV.J of the Plan and section 1129(a)(5) of the Bankruptcy Code, this 

revised Exhibit H to the Plan Supplement identifies certain members of the New Board of 

Reorganized Gymboree as of the Effective Date.2

As of the Effective Date, the term of the current members of the board of directors of the 

Debtors shall expire, and the New Boards and the officers of each of the Reorganized Debtors 

shall be appointed in accordance with the New Organizational Documents, other constituent 

documents of each Reorganized Debtor, and the Plan. The Reorganized Gymboree Board will 

be composed of seven members as of the Effective Date as follows: (a) Chief Executive Officer 

of the Reorganized Gymboree (who shall be the Chief Executive Officer of The Gymboree 

Corporation immediately prior to the occurrence of the Effective Date); (b) Ron Beegle of 

Carriage House Capital Advisors, LLC; (c) one member selected by Brigade Capital 

Management; (d) one member selected by Oppenheimer Funds, Inc.; (e) one member selected by 

Searchlight Capital Partners; and (f) two members selected by the Required Consenting 

Creditors. Pursuant to section 1129(a)(5) of the Bankruptcy Code, the Debtors will disclose 

before Confirmation the identity, affiliations, and nature of any compensation of any Person 

proposed to serve on the New Boards or any Persons that will serve as an officer of the 

Reorganized Debtors. Each such director and officer shall serve from and after the Effective 

Date pursuant to the terms of the New Organizational Documents and other constituent 

documents of Reorganized Gymboree and the Reorganized Debtors.

EXHIBIT H_48807624_1.DOCXMr. Daniel Griesemer

Mr. Daniel Griesemer has been Chief Executive Officer and President at The Gymboree 

Corporation since May 22, 2017. Mr. Griesemer is an experienced retail executive with an 

established track record of building customer loyalty in an omni-channel environment. He has 

leadership in the specialty-store sector, combined with his operational and financial experience. 

Mr. Griesemer served as the Chief Executive Officer and President of Tilly's, Inc. from February 

21, 2011 to October 7, 2015. Mr. Griesemer served as the President and Chief Executive Officer 

 

1 Capitalized terms used but undefined herein shall have the meanings ascribed to them in the First Amended 

Joint Chapter 11 Plan of Reorganization of the Gymboree Corporation and Its Debtor Affiliates 

[Docket No. 447] (as amended from time to time, the “Plan”).

2 One (1) additional member of the New Board of Reorganized Gymboree will be selected prior to the Effective 

Date pursuant to the Plan.

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1

of Coldwater Creek Inc. from October 30, 2007 to September 2009. Mr. Griesemer was 

responsible for its sales, marketing and national retail store expansion plans, as well as all 

distribution center and customer contact center operations. His career spans 24 years in the retail 

apparel industry and joined Coldwater Creek in 2001. Mr. Griesemer served as Executive Vice 

President of Sales and Marketing at Coldwater Creek Inc. from January 2005 to March 2007, 

where he was responsible for all aspects of sales and marketing for its Catalog, Internet and 

Retail sales channels and from April 2004 to January 2005, he served as Executive Vice 

President of Retail. He served as Co-President and Chief Operating Officer of Coldwater Creek 

Inc. from March 28, 2007 to October 30, 2007 and its Senior Vice President of Retail from 

October 2001 to April 2004. Mr. Griesemer began his career with Macy's Stores. Mr. Griesemer 

adapted to the rapidly changing retail marketplace by increasing consumer engagement, 

elevating the customer experience and succeeding in the e-commerce and digital arena. Prior to 

joining Coldwater Creek, from 1989 to 2000, Mr. Griesemer held a number of progressively 

responsible positions with and ultimately served as Divisional Merchandise Manager for Gap 

Inc. and also served with GapKids and Gap Inc.'s International division. From 1983 to 1989, he 

served in a variety of positions at Federated Department Stores. He served as a Director of 

Coldwater Creek Inc. from October 30, 2007 to September 2009. He served as a Director of 

Tilly's, Inc. from February 21, 2011 to October 7, 2015. He holds a Bachelor of Science degree 

in Business Administration from the University of Dayton. Mr. Griesemer attended the executive 

education program at the University of Michigan Ross School of Business.

Ms. Shaz Kahng 

Ms. Shaz Kahng currently advises private equity and venture capital firms in the areas of 

retail, footwear, and apparel and serves as a mentor to startups in both the R/GA Westfield Mall 

retail accelerator and the Lazaridis Program. Previously, Ms. Kahng was a board director and 

CMO for OMsignal, a leading smart apparel company. Prior to that, she was president of Lucy 

Activewear, a retailer with 65 stores and over 800 employees where she transformed the 

business. Ms. Kahng introduced numerous strategic, product, marketing, and retail innovations 

and along with her team made the company profitable for the first time in its 12-year history. 

She was one of the few female senior executives at Nike and helped build out Nike’s global 

retail presence and launch Nike+, the chip in the running shoe that “talked” to the iPod nano. 

Ms. Kahng was the Global GM of Nike Cycling, growing revenues 300% and making it 

profitable for the first time. Her last role was as a global director and the number two person 

over the $1 billion Global Women’s Training business. Before Nike, Ms. Kahng was Head of 

Brand Strategy for Wolff Olins, a brand strategy and design firm. Prior to that, Ms. Kahng was a 

managing director at Scient, an Internet business builder that built eLuxury and Sephora.com. 

Before that, she was a partner at Kurt Salmon Associates, a global consulting firm advising the 

world’s leading retail and consumer goods brands. Ms. Kahng achieved record sales and earned 

multiple client awards for outstanding work for a client roster that included Proctor & Gamble, 

Tiffany & Co., Macy’s, Levi Strauss, and The Limited. Ms. Kahng started her career as a 

research scientist for Kraft General Foods. She holds a B.S. in Food Science & Chemistry from 

Cornell University and an MBA in Finance & Marketing from the Wharton School of the 

University of Pennsylvania.

Mr. Ron Beegle 

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

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1

Mr. Ron Beegle is the founder and chief executive officer of Carriage House Capital 

Advisors, LLC (“Carriage House”). Launched in 2015, the Los Angeles based firm provides 

capital and advisory services to consumer brands and retail companies, as well as private equity 

firms that invest in those industry sectors. Mr. Beegle launched Carriage House prior to his 

retirement as co-founder and operating partner of Goode Partners, LLC, a New York based 

private equity firm that invests primarily in the consumer sector, specifically consumer brands, 

retail companies, and restaurants. Before co-founding Goode Partners, Mr. Beegle was the 

founder and chairman of Global Consumer Retail Investors, a consulting firm that worked 

exclusively for Credit Suisse Private Equity. Prior to becoming involved in private equity, Mr. 

Beegle worked for twenty years in the retail industry, including most recently at Gap Inc., where 

he served first as chief financial officer and then chief operating officer of Banana Republic, 

executive vice president and general manager of Gap Inc. Direct, and finally chief operating 

officer of the company’s flagship Gap division. Mr. Beegle presently serves as a director of 

Aeropostale, Inc. and lead director of Harris Farms, Inc. He is the former non-executive 

chairman of the board of Luxury Optical Holdings, as well as a former board member of Neiman 

Marcus Group and Intermix, Inc. Additionally, Mr. Beegle was a founding director of the USA 

Swimming Foundation and is a former trustee of Allegheny College. Mr. Beegle is a graduate of 

Allegheny College and has an MBA from Stern School of Business at New York University. 

Mr. Matt Perkal 

Mr. Matt Perkal is a senior analyst at Brigade Capital Management, LP (“Brigade”), 

covering the gaming, retail, and restaurant sectors. Brigade is an SEC-registered investment 

advisor focusing on investing in the global high-yield market. It currently manages 

approximately $18.1 billion in assets specializing in the credit markets, and implements a 

fundamentally driven, “bottom-up” investment process which seeks to achieve long term growth 

of capital independent of the market environment. Prior to joining Brigade, Mr. Perkal worked 

at Deutsche Bank as an analyst in the Leveraged Finance Group. In that capacity, Mr. Perkal 

also spent time on the Leveraged Debt Capital Markets Desk, selling both bank and bond deals. 

Mr. Perkal received a BS in Economics with a concentration in Finance and Accounting from the 

Wharton School of the University of Pennsylvania.

Mr. Brian Hickey

Mr. Brian Hickey serves as a senior analyst on the Senior Corporate Loan team at 

OppenheimerFunds, Inc. (“Oppenheimer”), a global asset management firm with over $240 

billion in assets under management. He currently has analytical responsibilities for the services 

and telecommunications industries. Mr. Hickey’s past industry coverage includes the apparel, 

automotive, chemicals, financials, homebuilding, and paper and packaging industries. Prior to 

joining Oppenheimer in 2009, Mr. Hickey was a vice president at Barclays Capital/Lehman 

Brothers, where he focused on the analysis and valuation of distressed companies. Earlier in his 

career, Mr. Hickey served as a credit analyst at firms including Moody’s, General Motors Asset 

Management, and Fidelity Investments. Mr. Hickey holds a B.A. in Government from 

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

 Document Page 271 of 272
1

Dartmouth College and an M.B.A. in Finance and Management from New York University. Mr. 

Hickey is a CFA charterholder.

Mr. Eric Sondag 

Mr. Eric Sondag is a partner at Searchlight Capital Partners, LLC (“Searchlight”), a 

private investment firm with operations across North America and Europe. Prior to joining 

Searchlight in 2011, Mr. Sondag worked at GTCR Golder Rauner in Chicago, where he worked 

primarily on investments in the media, information services, and consumer industries. He started 

his career in investment banking at Wasserstein Perella in Chicago in 1998. Mr. Sondag is 

currently Chairman of the Board at Cengage Learning, as well as a board member of 

TouchTunes and M&M Food Market. He is also a member of the Board of Advisors for 

Georgetown University’s McDonough School of Business. Mr. Sondag received a BSc from 

Georgetown University and completed the Executive Management Program at INSEAD in 

Singapore.

On the Effective Date, the officers of the Reorganized Debtors (including the Chief 

Financial Officer and Chief Restructuring Officer) will be the persons currently serving in such 

positions. After the Effective Date, the Reorganized Debtors and the New Board shall have the 

right to (and may) appoint successors in accordance with the New Organizational Documents 

and applicable law.

Case 17-32986-KLP Doc 597 Filed 08/31/17 Entered 08/31/17 21:21:23 Desc Main

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