**Exhibit 10.3(b)**

 

Execution Copy

 

 

 

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**VARIETAL DISTRIBUTION HOLDINGS, LLC**

 

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**LIMITED LIABILITY COMPANY AGREEMENT**

 

Dated as of June 29, 2007

 

THE COMPANY INTERESTS REPRESENTED BY THIS LIMITEDLIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATESSECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY OTHER APPLICABLE SECURITIESLAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSEDOF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OREXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ONTRANSFERABILITY SET FORTH HEREIN.

 

THE COMPANY INTERESTS REPRESENTED BY THIS LIMITEDLIABILITY COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ONTRANSFER SPECIFIED IN THE SECURITYHOLDERS AGREEMENT, DATED ON OR ABOUT THE DATESET FORTH ABOVE, AS AMENDED OR MODIFIED FROM TIME TO TIME, AMONG THE ISSUER(THE “COMPANY”) AND CERTAIN INVESTORS, AND THE COMPANY RESERVES THE RIGHT TOREFUSE THE TRANSFER OF SUCH INTERESTS UNTIL SUCH CONDITIONS HAVE BEEN FULFILLEDWITH RESPECT TO ANY TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BYTHE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.

 

 

 

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**TABLE OF CONTENTS**

 
|                                                       |       |                                                                      |       | **Page**   |
|------------------------------------------------------------|------------|---------------------------------------------------------------------------|------------|------------|
|                                                       |       |                                                                      |       |       |
| **ARTICLE I CERTAIN DEFINITIONS**                          | ** ** | **1**                                                                     |
| ** **                                                 | ** ** | ** **                                                                | ** ** | ** ** |
| **ARTICLE II ORGANIZATIONAL MATTERS**                      | ** ** | **8**                                                                     |
| Section  2.1                                               |       | Formation                                                                 |       | 8          |
| Section  2.2                                               |       | The  Certificate                                                          |       | 8          |
| Section  2.3                                               |       | Name                                                                      |       | 8          |
| Section  2.4                                               |       | Purpose  and Powers                                                       |       | 8          |
| Section  2.5                                               |       | Merger                                                                    |       | 8          |
| Section  2.6                                               |       | Foreign  Qualification                                                    |       | 9          |
| Section  2.7                                               |       | Principal  Office; Registered Office                                      |       | 9          |
| Section  2.8                                               |       | Term                                                                      |       | 9          |
| Section  2.9                                               |       | No  State-Law Partnership                                                 |       | 9          |
| Section  2.10                                              |       | No UBTI;  Effectively Connected Income or Commercial Activity             |       | 9          |
| ** **                                                 | ** ** | ** **                                                                |
| **ARTICLE III UNITS; CAPITAL ACCOUNTS**                    | ** ** | **10**                                                                    |
| Section  3.1                                               |       | Unitholders                                                               |       | 10         |
| Section  3.2                                               |       | Unitholder  Meetings                                                      |       | 11         |
| Section  3.3                                               |       | Action of  Unitholders by Written Consent or Telephone Conference         |       | 13         |
| Section  3.4                                               |       | Issuance  of Additional Units and Interests                               |       | 14         |
| Section  3.5                                               |       | Incentive  Units                                                          |       | 14         |
| Section  3.6                                               |       | Capital  Accounts                                                         |       | 16         |
| Section  3.7                                               |       | Negative  Capital Accounts                                                |       | 17         |
| Section  3.8                                               |       | No  Withdrawal                                                            |       | 17         |
| Section  3.9                                               |       | Loans  From Unitholders                                                   |       | 17         |
|                                                       |       |                                                                      |       |       |
| **ARTICLE IV DISTRIBUTIONS; REDEMPTIONS AND  ALLOCATIONS** | ** ** | **17**                                                                    |
| Section  4.1                                               |       | Distributions                                                             |       | 17         |
| Section  4.2                                               |       | Allocations                                                               |       | 20         |
| Section  4.3                                               |       | Special  Allocations                                                      |       | 20         |
| Section  4.4                                               |       | Tax  Allocations                                                          |       | 21         |
| Section  4.5                                               |       | Indemnification  and Reimbursement for Payments on Behalf of a Unitholder |       | 22         |
| Section  4.6                                               |       | Transfer  of Capital Accounts                                             |       | 22         |
| Section  4.7                                               |       | Certain  Repurchases and Redemptions                                      |       | 22         |
|                                                       |       |                                                                      |       |       |
| **ARTICLE V BOARD OF MANAGERS; OFFICERS**                  | ** ** | **23**                                                                    |
| Section  5.1                                               |       | Management  by the Board of Managers                                      |       | 23         |
| Section  5.2                                               |       | Composition  and Election of the Board of Managers                        |       | 24         |
| Section  5.3                                               |       | Board  Meetings and Actions by Written Consent                            |       | 25         |
| Section  5.4                                               |       | Committees;  Delegation of Authority and Duties                           |       | 27         |

 

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| Section  5.5                                                  |       | Officers                                              |       | 27         |
|---------------------------------------------------------------|------------|-------------------------------------------------------|------------|------------|
|                                                          |       |                                                  |       |       |
| **ARTICLE VI GENERAL RIGHTS AND OBLIGATIONS OF  UNITHOLDERS** | ** ** | **28**                                                |
| Section  6.1                                                  |       | Limitation  of Liability                              |       | 28         |
| Section  6.2                                                  |       | Lack of  Authority                                    |       | 29         |
| Section  6.3                                                  |       | No Right  of Partition                                |       | 29         |
| Section  6.4                                                  |       | Unitholders  Right to Act                             |       | 29         |
| Section  6.5                                                  |       | Investment  Opportunities; Conflicts of Interest      |       | 29         |
| Section  6.6                                                  |       | Transactions  Between the Company and the Unitholders |       | 30         |
|                                                          |       |                                                  |       |       |
| **ARTICLE VII EXCULPATION AND INDEMNIFICATION**               | ** ** | **30**                                                |
| Section  7.1                                                  |       | Exculpation                                           |       | 30         |
| Section  7.2                                                  |       | Right to  Indemnification                             |       | 31         |
| Section  7.3                                                  |       | Advance  Payment                                      |       | 31         |
| Section  7.4                                                  |       | Indemnification  of Employees and Agents              |       | 31         |
| Section  7.5                                                  |       | Appearance  as a Witness                              |       | 32         |
| Section  7.6                                                  |       | Nonexclusivity  of Rights                             |       | 32         |
| Section  7.7                                                  |       | Insurance                                             |       | 32         |
| Section  7.8                                                  |       | Savings  Clause                                       |       | 32         |
|                                                          |       |                                                  |       |       |
| **ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS**       | ** ** | **32**                                                |
| Section  8.1                                                  |       | Records  and Accounting                               |       | 32         |
| Section  8.2                                                  |       | Fiscal  Year                                          |       | 33         |
| Section  8.3                                                  |       | Tax  Information                                      |       | 33         |
| Section  8.4                                                  |       | Transmission  of Communications                       |       | 33         |
| Section  8.5                                                  |       | Company  Funds                                        |       | 33         |
|                                                          |       |                                                  |       |       |
| **ARTICLE IX TAXES**                                          | ** ** | ** **                                            | ** ** | **33**     |
| Section  9.1                                                  |       | Tax  Returns                                          |       | 33         |
| Section  9.2                                                  |       | Tax  Elections                                        |       | 33         |
| Section  9.3                                                  |       | Tax  Matters Partner                                  |       | 33         |
| Section  9.4                                                  |       | Code  Section 83 Safe Harbor Election                 |       | 34         |
|                                                          |       |                                                  |       |       |
| **ARTICLE X TRANSFER OF COMPANY INTERESTS**                   | ** ** | **34**                                                |
| Section  10.1                                                 |       | Transfers  by Unitholders                             |       | 34         |
| Section  10.2                                                 |       | Effect of  Assignment                                 |       | 35         |
| Section  10.3                                                 |       | Restriction  on Transfer                              |       | 35         |
| Section  10.4                                                 |       | Transfer  Fees and Expenses                           |       | 36         |
| Section  10.5                                                 |       | Void  Transfers                                       |       | 36         |
|                                                          |       |                                                  |       |       |
| **ARTICLE XI ADMISSION OF UNITHOLDERS**                       | ** ** | **36**                                                |
| ** **                                                    | ** ** | ** **                                            | ** ** | ** ** |
| Section  11.1                                                 |       | Substituted  Unitholders                              |       | 36         |
| Section  11.2                                                 |       | Additional  Unitholders                               |       | 36         |
| Section  11.3                                                 |       | Derivative  Securities                                |       | 36         |
|                                                          |       |                                                  |       |       |
| **ARTICLE XII WITHDRAWAL AND RESIGNATION OF  UNITHOLDERS**    | ** ** | **37**                                                |
| Section  12.1                                                 |       | Withdrawal  and Resignation of Unitholders            |       | 37         |

 

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| Section  12.2                                |       | Withdrawal  of a Unitholder                         |   | 37     |
|----------------------------------------------|------------|-----------------------------------------------------|--------|--------|
|                                         |       |                                                |   |   |
| **ARTICLE XIII DISSOLUTION AND LIQUIDATION** | ** ** | **37**                                              |
| Section  13.1                                |       | Dissolution                                         |   | 37     |
| Section  13.2                                |       | Liquidation  and Termination                        |   | 37     |
| Section  13.3                                |       | Cancellation  of Certificate                        |   | 38     |
| Section  13.4                                |       | Reasonable  Time for Winding Up                     |   | 38     |
| Section  13.5                                |       | Return of  Capital                                  |   | 38     |
| Section  13.6                                |       | Reserves  Against Distributions                     |   | 38     |
|                                         |       |                                                |   |   |
| **ARTICLE XIV VALUATION**                    | ** ** | **39**                                              |
| Section  14.1                                |       | Fair  Market Value                                  |   | 39     |
|                                         |       |                                                |   |   |
| **ARTICLE XV GENERAL PROVISIONS**            | ** ** | **39**                                              |
| Section  15.1                                |       | Power of  Attorney                                  |   | 39     |
| Section  15.2                                |       | Amendments                                          |   | 40     |
| Section  15.3                                |       | Title to  the Company’s Assets                 |   | 40     |
| Section  15.4                                |       | Remedies                                            |   | 40     |
| Section  15.5                                |       | Successors  and Assigns                             |   | 41     |
| Section  15.6                                |       | Severability                                        |   | 41     |
| Section  15.7                                |       | Change in  Business Form                            |   | 41     |
| Section  15.8                                |       | Opt-in to  Article 8 of the Uniform Commercial Code |   | 41     |
| Section  15.9                                |       | Notice to  Unitholder of Provisions                 |   | 42     |
| Section  15.10                               |       | Counterparts                                        |   | 42     |
| Section  15.11                               |       | Consent  to Jurisdiction                            |   | 42     |
| Section 15.12                                |       | Descriptive  Headings; Interpretation               |   | 42     |
| Section  15.13                               |       | Applicable  Law                                     |   | 42     |
| Section  15.14                               |       | Mutual  Waiver of Jury Trial                        |   | 43     |
| Section  15.15                               |       | Addresses  and Notices                              |   | 43     |
| Section  15.16                               |       | Creditors                                           |   | 44     |
| Section  15.17                               |       | Waiver                                              |   | 44     |
| Section  15.18                               |       | Further  Action                                     |   | 44     |
| Section  15.19                               |       | Entire  Agreement                                   |   | 44     |
| Section  15.20                               |       | Electronic  Delivery                                |   | 44     |
| Section  15.21                               |       | Survival                                            |   | 45     |

 

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**VARIETALDISTRIBUTION HOLDINGS, LLCLIMITED LIABILITY COMPANY AGREEMENT**

 

**THIS LIMITED LIABILITY COMPANYAGREEMENT**, dated as of June 29, 2007, is entered into byand among Varietal Distribution Holdings, LLC (the “Company”) and theUnitholders.

 

NOW, THEREFORE, in consideration of the mutualcovenants contained herein and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties hereto,intending to be legally bound, hereby agree as follows:

 

# **ARTICLEI**

# ** **

# **CERTAINDEFINITIONS**

# ** **

Capitalized terms used but not otherwise definedherein shall have the following meanings:

 

“Additional MDCP Manager” shall have themeaning set forth in Section 5.2(a).

 

“Additional Unitholder” means a Person admittedto the Company as a Unitholder pursuant to Section 11.2.

 

“Additional Securities” shall have the meaningset forth in Section 3.4.

 

“Adjusted Capital Account Deficit” means withrespect to any Capital Account as of the end of any Taxable Year, the amount bywhich the balance in such Capital Account is less than zero. For this purpose,such Person’s Capital Account balance shall be

 

#### (i)            reducedfor any items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4),(5), and (6), and

####  

#### (ii)           increasedfor any amount such Person is obligated to contribute or is treated as beingobligated to contribute to the Company pursuant to Treasury Regulation Section1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or1.704-2(g)(1) and 1.704-2(i) (relating to Minimum Gain).

####  

“Affiliate” of any particular Person means anyother Person controlling, controlled by, or under common control with suchparticular Person, where “control” means the possession, directly orindirectly, of the power to direct the management and policies of a Personwhether through the ownership of voting securities, by contract, or otherwise.

 

“Agreement” means this Limited LiabilityCompany Agreement, as amended or modified from time to time in accordance withthe terms hereof.

 

“Assumed Tax Rate” shall have the meaning setforth in Section 4.1(b).

 

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“Board” means the Board of Managers establishedpursuant to Sections 5.1 and 5.2.

 

“Book Value” means, with respect to anyproperty of the Company, the Company’s adjusted basis for federal income taxpurposes, adjusted from time to time to reflect the adjustments required orpermitted by Treasury Regulation Section 1.704-1(b)(2)(iv)(d)-(g).

 

“Capital Account” means the capital accountmaintained for a Unitholder pursuant to Section 3.6.

 

“Capital Contributions” means the Fair MarketValue of property that a Unitholder contributes or is deemed to havecontributed to the Company with respect to any Unit pursuant to Sections 3.1or 3.4.

 

“Certificate” means the Company’s Certificateof Formation as filed with the Secretary of State of Delaware.

 

“Class A Common Unit” means a Unit representinga fractional part of the interest of a Unitholder in Profits, Losses andDistributions and having the rights and obligations specified with respect tothe Class A Common Units in this Agreement.

 

“Class A Preferred Unit” means a Unitrepresenting a fractional part of the interest of a Unitholder in Profits,Losses and Distributions and having the rights and obligations specified withrespect to the Class A Preferred Units in this Agreement.

 

“Class A Preferred Unpaid Yield” of any Class APreferred Unit means, as of any date, an amount equal to the excess, if any, of(a) the aggregate Class A Preferred Yield accrued on such Class A PreferredUnit for all periods prior to such date (including partial periods), over (b)the aggregate amount of prior Distributions made by the Company that constitutepayment of Class A Preferred Yield on such Class A Preferred Unit.

 

“Class A Preferred Unreturned Capital” of anyClass A Preferred Unit means, as of any date, the aggregate CapitalContributions made or deemed to be made in exchange for such Class A PreferredUnit reduced by all Distributions made by the Company that constitute a returnof Class A Preferred Unreturned Capital under Section 4.1(a)(ii).

 

“Class A Preferred Yield” means, with respectto each Class A Preferred Unit, the amount accruing on such Class A PreferredUnit on a daily basis, at the rate of 8% per annum, compounded on the last dayof each calendar quarter, on (a) the Class A Preferred Unreturned Capital ofsuch Class A Preferred Unit plus (b) the Class A Preferred Unpaid Yield thereonfor all prior quarterly periods. In calculating the amount of any Distributionto be made during a period, the portion of the Class A Preferred Yield withrespect to such Class A Preferred Unit for the portion of the quarterly periodelapsing before such Distribution is made shall be taken into account indetermining the amount of such Distribution.

 

“Class B Common Unit” means a Unit representinga fractional part of the interest of a Unitholder in Profits, Losses andDistributions and having the rights and obligations specified with respect tothe Class B Common Units in this Agreement.

 

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“Code” means the United States Internal RevenueCode of 1986, as amended. Such term shall be deemed to include any futureamendments to the Code and any corresponding provisions of succeeding Codeprovisions.

 

“Common Unitholder” means a holder of CommonUnits.

 

“Common Units” means Class A Common Units andClass B Common Units.

 

“Company” means Varietal Distribution Holdings,LLC, a Delaware limited liability company.

 

“Company Income Amount” shall have the meaningset forth in Section 4.1(b).

 

“Conversion” shall have the meaning set forthin Section 15.7.

 

“Delaware Act” means the Delaware LimitedLiability Company Act, 6 Del. L. § 18-101, *etseq*., as it may be amended from time to time, and any successor tothe Delaware Act.

 

“Distribution” means each distribution made bythe Company to a Unitholder, whether in cash, property or securities of theCompany and whether by liquidating distribution or otherwise; providedthat any recapitalization, exchange, conversion, repurchase or redemption ofsecurities of the Company, and any subdivision (by Unit split or otherwise) orany combination (by reverse Unit split or otherwise) of any outstanding Unitsshall not be deemed a Distribution.

 

“Executive Manager” shall have the meaning setforth in Section 5.2(a).

 

“Fair Market Value” means, with respect to anyasset or equity interest, its fair market value determined according to ArticleXIV.

 

“Fiscal Year” means the Company’s annualaccounting period established pursuant to Section 8.2.

 

“Governmental Entity” means the United Statesof America or any other nation, any state or other political subdivisionthereof, or any entity exercising executive, legislative, judicial, regulatoryor administrative functions of government or any agency or department orsubdivision of any governmental authority, including the United States federalgovernment or any state or local government.

 

“Grossed-Up Amount” has the meaning set forthin Section 4.1(a).

 

“Incentive Unit Grant Agreement” has themeaning set forth in Section 3.5.

 

“Investor Managers” shall have the meaning setforth in Section 5.2(a).

 

“Liquidation Value” shall mean, with respect toa Unit, the amount of cash that would be distributed to a Unitholder in respectof such Unit if the Company sold all of its assets for an amount of cash equalto their Fair Market Value and distributed the proceeds pursuant to Sections4.1 and 13.2.

 

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“Losses” means items of loss and deduction ofthe Company determined according to Section 3.6(b).

 

“Management Services Agreement” means thatcertain Management Services Agreement, dated on or about the date hereof, byand between Madison Dearborn Partners V-B, L.P., a Delaware limited partnershipand an Affiliate of MDP, and CDRV Investors, Inc., a Delaware corporation (tobe renamed VWR Funding, Inc.), which is a Subsidiary of the Company.

 

“Management Unit Purchase Agreement” means anyManagement Unit Purchase Agreement entered into from time to time among theCompany, any Subsidiary of the Company and/or an employee of the Company or itsSubsidiaries, as the same may be amended from time to time pursuant to theterms thereof (including, without limitation, any other agreements designatedas Management Unit Purchase Agreements for the sale of equity securitiesbetween the Company and any employees or other service providers of the Companyor its Subsidiaries and any Incentive Unit Agreements, all as approved by theBoard).

 

“Management Unitholder” means each Executive(as defined in the Securityholders Agreement).

 

“Manager” means any person designated to serveas a member of the Board pursuant to Section 5.2 of this Agreement, butdoes not include any person who has ceased to be a member of the Board.

 

“MDCP-A” means Madison Dearborn CapitalPartners V-A, L.P., a Delaware limited partnership.

 

“MDCP-A Manager” shall have the meaning setforth in Section 5.2(a).

 

“MDCP-C” means Madison Dearborn CapitalPartners V-C, L.P., a Delaware limited partnership.

 

“MDCP-C Manager” shall have the meaning setforth in Section 5.2(a).

 

“MDCP Co-Invest 1” means MDCP Co-Investors (Varietal),L.P., a Delaware limited partnership.

 

“MDCP-Co-Invest 1 Manager” shall have themeaning set forth in Section 5.2(a).

 

“MDCP Co-Invest 2” means MDCP Co-Investors(Varietal-2), L.P., a Delaware limited partnership.

 

“MDCP Executive” means Madison Dearborn CapitalPartners V Executive-A, L.P., a Delaware limited partnership.

 

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“MDP” means MDCP-A, MDCP-C, MDCP Executive,MDCP Co-Invest 1 and MDCP Co-Invest 2.

 

“MDP LLC” means Madison Dearborn Partners, LLC,a Delaware limited liability company.

 

“MDP Purchase Agreement” means that certainUnit Purchase Agreement, dated as of the date hereof, by and among MDP, MDCPCo-Investors (Varietal), L.P. and the Company, as amended from time to time inaccordance with its terms.

 

“Minimum Gain” means the partnership minimumgain determined pursuant to Treasury Regulation Section 1.704-2(d).

 

“Notice” shall have the meaning set forth in Section9.4.

 

“Officers” means each person designated as anofficer of the Company to whom authority and duties have been delegatedpursuant to Section 5.5, subject to any resolution of the Boardappointing such person as an officer or relating to such appointment.

 

“Other Business” shall have the meaning setforth in Section 6.5(c).

 

“Other Unitholder” means each Unitholder otherthan a Management Unitholder; provided that the Company shall beentitled to designate or, upon admission of a Substituted Unitholder orAdditional Unitholder, refuse to designate a Unitholder as an “OtherUnitholder.”

 

“Participating Class B Common Unit” means, withrespect to any Distribution pursuant to Section 4.1(a)(iii), a Class BCommon Unit that has a Participation Threshold that is less than the amountdetermined by dividing (a) the sum of (i) the amount of such Distributionpursuant to Section 4.1(a)(iii) and (ii) the sum of the ParticipationThresholds of all outstanding Class B Common Units (including the ParticipatingClass B Common Unit) that have an equal or lesser Participation Threshold to suchClass B Common Unit by (b) the sum of (i) the number of outstanding Class ACommon Units and (ii) the number of outstanding Class B Common Units that havean equal or lesser Participation Threshold to such Class B Common Unit.

 

“Participating Common Unit” means, with respectto any Distribution pursuant to Section 4.1(a)(iii), a Class A Common Unit or aParticipating Class B Common Unit.

 

“Participating Threshold” means, with respectto each outstanding Class B Common Unit, an amount determined in accordancewith Section 3.5.

 

“Person” means an individual, a partnership, acorporation, a limited liability company, an association, a joint stockcompany, a trust, a joint venture, an unincorporated organization, any otherbusiness entity, or a Governmental Entity.

 

“Proceeding” has the meaning set forth in Section7.2.

 

“Profits” means items of income and gain of theCompany determined according to Section 3.6(b).

 

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“Regulatory Allocations” has the meaning setforth in Section 4.3(e).

 

“Related Persons” shall have the meaning setforth in Section 6.5(c).

 

“Required Interest” means, as of a given time,a majority of the Class A Common Units outstanding at such time.

 

“Reserve Amount” shall have the meaning set forthin Section 4.1(a).

 

“Securities Act” means the Securities Act of1933, as amended, and applicable rules and regulations thereunder, and anysuccessor to such statute, rules, or regulations.

 

“Securities Exchange Act” means the SecuritiesExchange Act of 1934, as amended, and applicable rules and regulationsthereunder, and any successor to such statute, rules, or regulations.

 

“Securityholders Agreement” means theSecurityholders Agreement, dated as of the date hereof, by and among theCompany, MDP and the other Persons party thereto from time to time, as the samemay be amended from time to time pursuant to the terms thereof.

 

“Subsidiary” means, with respect to any Person,any corporation, limited liability company, partnership, association, or businessentity of which (i) if a corporation, a majority of the total voting power ofshares of stock entitled (without regard to the occurrence of any contingency)to vote in the election of directors, managers, or trustees thereof is at thetime owned or controlled, directly or indirectly, by that Person or one or moreof the other Subsidiaries of that Person or a combination thereof, or (ii) if alimited liability company, partnership, association, or other business entity(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the timeowned or controlled, directly or indirectly, by that Person or one or moreSubsidiaries of that Person or a combination thereof. For purposes hereof, aPerson or Persons shall be deemed to have a majority ownership interest in alimited liability company, partnership, association, or other business entity(other than a corporation) if such Person or Persons shall be allocated amajority of limited liability company, partnership, association, or otherbusiness entity gains or losses or shall be or control any managing director orgeneral partner of such limited liability company, partnership, association, orother business entity. For purposes hereof, references to a “Subsidiary”of any Person shall be given effect only at such times that such Person has oneor more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary”refers to a Subsidiary of the Company.

 

“Substituted Unitholder” means a Person that isadmitted as a Unitholder to the Company pursuant to Section 11.1.

 

“Tax” or “Taxes” means any federal,state, local, or foreign income, gross receipts, franchise, estimated,alternative minimum, add-on minimum, sales, use, transfer, registration, valueadded, excise, natural resources, severance, stamp, occupation, premium,windfall profit, environmental, customs, duties, real property, personalproperty, capital stock, social security, unemployment, disability, payroll,license, employee, or other withholding, or other tax, of any kind whatsoever,including any interest, penalties, or additions to tax or additional amounts inrespect of the foregoing.

 

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“Tax Distribution” has the meaning set forth inSection 4.1(b).

 

“Tax Matters Partner” has the meaning set forthin Section 9.3.

 

“Taxable Year” means the Company’s Fiscal Yearunless the Board determines otherwise in compliance with applicable laws.

 

“Transaction Documents” means this Agreement,the Securityholders Agreement and all other agreements, instruments,certificates, and other documents to be entered into or delivered by anyUnitholder in connection with the transactions contemplated to occur pursuantto this Agreement, the Securityholders Agreement and any side agreementsrelated to the foregoing.

 

“Transfer” means any sale, transfer,assignment, pledge, mortgage, exchange, hypothecation, grant of a securityinterest or other direct or indirect disposition or encumbrance of an interest(including, without limitation, by operation of law) or the acts thereof, butexplicitly excluding conversions or exchanges of one class of Unit to or foranother class of Unit. The terms “Transferee,” “Transferred,” andother forms of the word “Transfer” shall have correlative meanings.

 

“Treasury Regulations” means the income taxregulations promulgated under the Code and effective as of the date hereof. Suchterm shall be deemed to include any future amendments to such regulations andany corresponding provisions of succeeding regulations.

 

“Unit” means an interest of a Unitholder inProfits, Losses and Distributions representing a fractional part of theinterests of all Unitholders in Profits, Losses and Distributions and shallinclude Class A Preferred Units and Common Units; provided that anyclass or group of Units issued shall have the relative rights, powers, andduties set forth in this Agreement and the interest in Profits, Losses andDistributions represented by such class or group of Units shall be determinedin accordance with such relative rights, powers, and duties set forth in thisAgreement.

 

“Unvested Common Units” means, as of any giventime, any Common Units that are subject to vesting or a similar forfeitureprovision pursuant to any Management Unit Purchase Agreement and which have notyet vested or are still subject to a similar forfeiture provision in accordancewith the terms of such Management Unit Purchase Agreement.

 

“Unit Ownership Ledger” meaning set forth in Section3.1(b).

 

“Unitholder” means any owner of one or moreUnits as reflected on the Company’s books and records, and any person admitted to the Company as anAdditional Unitholder or Substituted Unitholder; but only for so long as suchperson is shown on the Company’s books and records as the owner of one or moreUnits. The Unitholders shall constitute the “members” (as that term is definedin the Delaware Act) of the Company.

 

“Vested Common Units” means all Common Unitsother than Unvested Common Units.

 

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**ARTICLE II**

 

**ORGANIZATIONAL MATTERS**

 

**Section 2.1            Formation**. The Company has been organized as aDelaware limited liability company by the filing with the Secretary of State ofthe State of Delaware of the Certificate under and pursuant to the Delaware Actand shall be continued in accordance with this Agreement. The rights andliabilities of the Unitholders shall be determined pursuant to the DelawareAct, this Agreement and the Securityholders Agreement. To the extent that therights or obligations of any Unitholder are different by reason of anyprovision of this Agreement or the Securityholders Agreement than they would bein the absence of such provision, this Agreement and the SecurityholdersAgreement, to the extent not prohibited by the Delaware Act, shall control overthe Delaware Act, and the provisions of the Securityholders Agreement shallcontrol over this Agreement. This Agreement and the Securityholders Agreementtogether shall constitute the “limited liability agreement” for purposes of theDelaware Act.

 

**Section 2.2            TheCertificate**. The Certificatewas filed with the Secretary of State of the State of Delaware on April 13,2007. The Unitholders hereby agree to execute, file and record all such othercertificates and documents, including amendments to the Certificate, and to dosuch other acts as may be appropriate to comply with all requirements for theformation, continuation and operation of a limited liability company, theownership of property, and the conduct of business under the laws of the Stateof Delaware and any other jurisdiction in which the Company may own property orconduct business.

 

**Section 2.3            Name**. The name of the Company shall be VarietalDistribution Holdings, LLC. The Board may change the name of the Company at anytime and from time to time. Notification of any such change shall be given toall Unitholders. The Company’s business may be conducted under its name and/orany other name or names deemed advisable by the Board.

 

**Section 2.4            Purposeand Powers**. The purpose andbusiness of the Company shall be to engage in any lawful act or activity whichmay be conducted by a limited liability company formed pursuant to the DelawareAct and engaging in all activities necessary or incidental to the foregoing.Notwithstanding anything herein to the contrary, nothing set forth herein shallbe construed as authorizing the Company to possess any purpose or power, or todo any act or thing, forbidden by law to a limited liability company organizedunder the laws of the State of Delaware. The Company shall have any and allpowers necessary or desirable to carry out the purposes and business of theCompany, to the extent that the same may be lawfully exercised by limitedliability companies under the Delaware Act.

 

**Section 2.5            Merger**. Subject to the provisions of thisAgreement, the Company may, with the approval of the Board and MDP and withoutthe need for any further act, vote or approval of any Unitholder, merge with,or consolidate into, another limited liability company (organized under thelaws of Delaware or any other state), a corporation (organized under the lawsof Delaware or any other state) or other business entity (as defined in Section18-209(a) of the Delaware Act), regardless of whether the Company or such otherentity is the survivor. If a merger is used as a means of effecting the intentof Section 15.7 of this Agreement, then the provisions of that Sectionshall apply to such transaction.

 

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**Section 2.6            ForeignQualification**. Prior to theCompany’s conducting business in any jurisdiction other than Delaware, theCompany shall comply, to the extent procedures are available and those mattersare reasonably within the control of the Company, with all requirementsnecessary to qualify the Company as a foreign limited liability company in thatjurisdiction. At the request of the Board or any Officer, each Unitholder shallexecute, acknowledge, swear to and deliver all certificates and otherinstruments conforming with this Agreement that are necessary or appropriate toqualify, continue and terminate the Company as a foreign limited liabilitycompany in all such jurisdictions in which the Company may conduct business.

 

**Section 2.7            PrincipalOffice; Registered Office**. Theprincipal office of the Company shall be located at such place as the Board mayfrom time to time designate, and all business and activities of the Companyshall be deemed to have occurred at its principal office. The Company maymaintain offices at such other place or places as the Board deems advisable.Notification of any such change shall be given to all Unitholders. Theregistered office of the Company required by the Delaware Act to be maintainedin the State of Delaware shall be the office of the initial registered agentnamed in the Certificate or such other office (which need not be a place ofbusiness of the Company) as the Board may designate from time to time in themanner provided by law. The registered agent of the Company in the State ofDelaware shall be the initial registered agent named in the Certificate or suchother Person or Persons as the Board may designate from time to time in themanner provided by law.

 

**Section 2.8            Term**. The term of the Company commenced upon thefiling of the Certificate in accordance with the Delaware Act and shallcontinue in existence until termination and dissolution thereof in accordancewith the provisions of Article XIII.

 

**Section 2.9            NoState-Law Partnership**. TheUnitholders intend that the Company not be a partnership (including, withoutlimitation, a limited partnership) or joint venture, and that no Unitholder bea partner or joint venturer of any other Unitholder by virtue of this Agreement(except for tax purposes as set forth in the next succeeding sentence of this Section2.9), and neither this Agreement nor any other document entered into by theCompany or any Unitholder relating to the subject matter hereof shall beconstrued to suggest otherwise. The Unitholders intend that the Company shallbe treated as a partnership for federal and, if applicable, state or localincome tax purposes, and that each Unitholder and the Company shall file alltax returns and shall otherwise take all tax and financial reporting positionsin a manner consistent with such treatment.

 

**Section 2.10         NoUBTI; Effectively Connected Income or Commercial Activity**. The Company shall not engage in anytransaction which would cause (or create any significant risk of causing) theUnitholders or any of their direct or indirect limited partners which areexempt from income taxation under Section 501(a) of the Code to recognizeunrelated business taxable income as defined in Section 512 and Section 514 ofthe Code. The Company shall not engage in, or directly (or indirectly, throughone or more Persons treated as flow-through entities for U.S. federal incometax purposes) invest in any Person that is treated as a flow-through entity forU.S. federal income tax purposes that engages in, (a) any “commercial activity”as defined in Section 892(a)(2)(i) of the Code or any activity that wouldcreate a significant risk of causing the Company to be treated as engaged in a“commercial activity” or (b) transactions which will cause 

 

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(or create any significant risk of causing)the Company to incur income that is effectively connected with a “trade orbusiness within the United States” as defined in Section 864(b) of the Code.

 

**ARTICLE III**

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**UNITS; CAPITAL ACCOUNTS**

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**Section 3.1            Unitholders**.

 

(a)           Unitholders in General. EachUnitholder’s interest in the Company, including such Unitholder’s interest inProfits, Losses and Distributions of the Company and the right to vote oncertain matters as provided in this Agreement, shall be represented by theUnits owned by such Unitholder. The ownership of Units shall entitle eachUnitholder to allocations of Profits and Losses and other items anddistributions of cash and other property as set forth in Article IVhereof. A Substituted Unitholder that acquires Units from another Unitholder inan acquisition permitted by this Agreement shall be deemed to have made theCapital Contributions in respect of such Units that the predecessor Unitholdermade or was deemed to have made. Any reference in this Agreement to a Capital Contributionof, or Distribution to, a Substituted Unitholder shall include any CapitalContributions or Distributions previously made by or to the former Unitholderon account of the interest of such former Unitholder transferred to suchSubstituted Unitholder. The Board may if it so determines issue certificates tothe Unitholders representing the Units held by each Unitholder.

 

(b)           Unit Ownership Ledger. The Companyshall create and maintain a ledger (the “Unit Ownership Ledger”) setting forththe name of each Unitholder, the number of each class of Units held by eachsuch Unitholder, and the amount of the Capital Contribution made for each classof Units. Each Person acquiring Units on the date hereof pursuant to a writtenagreement between the Company and such Person shall be admitted to the Companyas a Unitholder and the Capital Contribution made in respect of Class A CommonUnits acquired on the date here shall be $1.00 per unit and the CapitalContribution made in respect of Class A Preferred Units acquired on the datehereof shall be $1,000.00 per unit. Upon any change in the number or ownershipof outstanding Units (whether upon an issuance of Units, a transfer of Units, acancellation of Units or otherwise), the Company shall amend and update the UnitOwnership Ledger and shall deliver a copy of such updated ledger to each holderof Units upon request. Absent manifest error, the ownership interests recordedon the Unit Ownership Ledger shall be conclusive record of the Units that havebeen issued and are outstanding. Notwithstanding anything to the contrarycontained in this Agreement, with respect to any Unitholder that holds lessthan 2% of the issued and outstanding Class A Common Units, except to theextent otherwise determined by the Board or the Company’s chief executiveofficer from time to time in its or his discretion, such Unitholder shall onlyhave the right to obtain a version of the Unit Ownership Ledger that containsthe information to be set forth thereon for such Unitholder and that containsthe information to be set forth thereon for all other Unitholders in a summaryformat that includes that total amount of outstanding Units and CapitalContributions for each class held by Unitholders that are institutionalinvestors and by Unitholders that are not institutional investors in a formatas approved from time to time by the Board; provided that the Company’s chiefexecutive officer may obtain a full version of the Unit Ownership Ledger.

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### (c)           Representations and Warranties ofUnitholders. Each Unitholder hereby represents and warrants to the Company andacknowledges that:  (i) such Unitholderhas knowledge and experience in financial and business matters and is capableof evaluating the merits and risks of an investment in the Company and makingan informed investment decision with respect thereto; (ii) such Unitholder hasreviewed and evaluated all information necessary to assess the merits and risksof his, her or its investment in the Company and has had answered to suchUnitholder’s satisfaction any and all questions regarding such information;(iii) such Unitholder is able to bear the economic and financial risk of aninvestment in the Company for an indefinite period of time; (iv) suchUnitholder is acquiring interests in the Company for investment only and notwith a view to, or for resale in connection with, any distribution to thepublic or public offering thereof; (v) the interests in the Company have notbeen registered under the securities laws of any jurisdiction and cannot bedisposed of unless they are subsequently registered and/or qualified underapplicable securities laws and the provisions of this Agreement have beencomplied with; (vi) to the extent applicable, the execution, delivery andperformance of this Agreement have been duly authorized by such Unitholder anddo not require such Unitholder to obtain any consent or approval that has notbeen obtained and do not contravene or result in a default under any provisionof any law or regulation applicable to such Unitholder or other governingdocuments or any agreement or instrument to which such Unitholder is a party orby which such Unitholder is bound; (vii) the determination of such Unitholderto purchase interests in the Company has been made by such Unitholderindependent of any other Unitholder and independent of any statements oropinions as to the advisability of such purchase, which may have been made orgiven by any other Unitholder or by any agent or employee of any otherUnitholder; and (viii) this Agreement is valid, binding and enforceable againstsuch Unitholder in accordance with its terms.

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**Section 3.2            UnitholderMeetings**.

 

### (a)           Voting ofUnitholders. A quorum shall be present at a meeting of Unitholders if theUnitholders holding the Required Interest are represented at the meeting inperson or by proxy. With respect to any matter, other than a matter for whichthe affirmative vote of the holders of a specified portion of all Unitholdersentitled to vote is required by the Delaware Act or by this Agreement, theaffirmative vote of the Unitholders holding the Required Interest at a meetingof Unitholders at which a quorum is present shall be the act of theUnitholders.

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### (b)           Place. Allmeetings of the Unitholders shall be held at the principal place of business ofthe Company or at such other place within or without the State of Delaware asshall be specified or fixed in the notices or waivers of notice thereof; providedthat any or all Unitholders may participate in any such meeting by means ofconference telephone or similar communications equipment pursuant to Section3.3(d).

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### (c)           Adjournment.Notwithstanding the other provisions of the Certificate or this Agreement, thechairman of the meeting or the Unitholders holding the Required Interest shallhave the power to adjourn such meeting from time to time, without any noticeother than announcement at the meeting of the time and place of the holding ofthe adjourned meeting. If such meeting is adjourned by the Unitholders, suchtime and place shall be determined by a vote of the Unitholders holding theRequired Interest. Upon the resumption of such adjourned 

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### meeting, anybusiness may be transacted that might have been transacted at the meeting asoriginally called.

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### (d)           Meetings.Meetings of the Unitholders for any proper purpose or purposes may be called atany time by any member of the Board or the Unitholders holding the RequiredInterest. If not otherwise stated in or fixed in accordance with the remainingprovisions hereof, the record date for determining Unitholders entitled to calla meeting is the date any Unitholder first signs the notice of that meeting.Only business within the purpose or purposes described in the notice (or waiverthereof) required by this Agreement may be conducted at a meeting of theUnitholders.

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### (e)           Notice. Awritten or printed notice stating the place, day and hour of the meeting and,in the case of a special meeting, the purpose or purposes for which the meetingis called, shall be delivered to each Unitholder holding Common Units and toeach other Unitholder entitled to vote at such meeting not less than five ormore than 30 days before the date of the meeting, either personally, by mail orby facsimile, by or at the direction of the Board or the Unitholders callingthe meeting. If mailed, any such notice shall be deemed to be delivered whendeposited in the United States mail, addressed to the Unitholder at its addressprovided for in the Company’s books and records, or to such other address or tothe attention of such other person as the recipient party has specified byprior written notice to the sending party.

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### (f)            Record Date.Unless otherwise determined by the Board, the date on which notice of a meetingof Unitholders is mailed or the date on which the resolution of the Boarddeclaring a distribution is adopted, as the case may be, shall be the recorddate for the determination of the Unitholders entitled to notice of or to voteat such meeting (including any adjournment thereof) or the Unitholders entitledto receive such distribution.

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### (g)           Required Interest.Except as otherwise expressly provided for in this Agreement, all matters to bevoted on pursuant to this Agreement shall require the vote of Unitholdersholding the Required Interest, which vote shall only be valid and binding if anotice of the meeting at which such vote is taken is given in accordance with Section3.2(e).

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### (h)           Proxies. AUnitholder may vote either in person or by proxy executed in writing by theUnitholder. An e-mail transmission or a photographic, photostatic, facsimile orsimilar reproduction of a writing executed by the Unitholder shall be treatedas an execution in writing for purposes of this Section 3.2(h).Proxies for use at any meeting of Unitholders or in connection with the takingof any action by written consent pursuant to Section 3.3 shall be filedwith the Secretary of the Company, before or at the time of the meeting orexecution of the written consent as the case may be. All proxies shall bereceived and taken charge of and all ballots shall be received and canvassed bythe Secretary of the Company, who shall decide all questions concerning thequalification of voters, the validity of the proxies and the acceptance orrejection of votes, unless an inspector or inspectors shall have been appointedby the chairman of the meeting, in which event such inspector or inspectorsshall decide all such questions. No proxy shall be valid after 11 months fromthe date of its execution unless otherwise provided in the proxy. A proxy shallbe revocable unless the proxy form conspicuously states that the proxy isirrevocable and the proxy is coupled with an interest. Should a proxy designatetwo or more Persons to act as proxies, unless that instrument shall provide tothe contrary, a majority of such 

 

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### Persons present atany meeting at which their powers thereunder are to be exercised shall have andmay exercise all the powers of voting or giving consents thereby conferred, orif only one be present, then such powers may be exercised by that one; or, ifan even number attend and a majority do not agree on any particular issue, theCompany shall not be required to recognize such proxy with respect to suchissue if such proxy does not specify how the Units that are the subject of suchproxy are to be voted with respect to such issue.

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### (i)            Conduct ofUnitholder Meetings. All meetings of the Unitholders shall be presided overby the chairman of the meeting, who shall be a Manager designated from time totime by the holders of the Required Interest or, at any time when no Manager isso designated to be chairman, the Executive Manager. The chairman of anymeeting of Unitholders shall determine the order of business and the procedureat the meeting, including such regulation of the manner of voting and theconduct of discussion as seem to him in order.

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### (j)            Voting Rights.Subject to the restrictions set forth in this Agreement, in any mattersubmitted to the holders of Common Units for a vote, each holder of CommonUnits shall be entitled to one vote for each Common Unit owned. In any mattersubmitted to the holders of Class A Preferred Units for a vote, each holder ofClass A Preferred Units shall be entitled to one vote for each Class APreferred Unit owned. Except as otherwise required by this Agreement or law,the Unitholders shall not have the right to vote on any matter except to theextent provided in Sections 3.2(a) or (g) hereof.

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**Section 3.3            Actionof Unitholders by Written Consent or Telephone Conference**.

 

### (a)           Written Consentin Lieu of Meeting. Any action required or permitted to be taken at anymeeting of Unitholders may be taken without a meeting, without prior notice andwithout a vote, if a consent or consents in writing, setting forth the actionso taken, shall be signed by the Unitholder or Unitholders holding not lessthan the minimum percentages of Units that would be necessary to take suchaction at a meeting at which all Unitholders entitled to vote on the actionwere present and voted. Every written consent shall bear the date of signatureof each Unitholder who signs the consent. No written consent shall be effectiveto take the action that is the subject to the consent unless, within 60 daysafter the date of the earliest dated consent delivered to the Company in themanner required by this Section 3.3(a), a consent or consentssigned by the Unitholder or Unitholders holding not less than the minimum Unitsthat would be necessary to take the action that is the subject of the consentare delivered to the Company by delivery to its registered office, itsprincipal place of business or the chief executive officer in each case, inaccordance with Section 15.15. Any such delivery to the Company’sprincipal place of business shall be addressed to the chief executive officer.An e-mail transmission or a photographic, photostatic, facsimile or similarreproduction of a writing signed by a Unitholder shall be regarded as signed bythe Unitholder for purposes of this Section 3.3(a). Prompt notice of thetaking of any action by Unitholders without a meeting by less than unanimouswritten consent shall be given to those Unitholders who did not consent inwriting to the action.

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### (b)           Record Date forWritten Consent in Lieu of Meeting. The record date for determiningUnitholders entitled to consent to action in writing without a meeting shall bethe first date on which a signed written consent setting forth the action takenor proposed to be taken is delivered to the Company by delivery to itsregistered office, its principal place of business, or 

 

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### the chiefexecutive officer, in each case, in accordance with Section 15.15. Anysuch delivery to the Company’s principal place of business shall be addressedto the chief executive officer.

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### (c)           Filings. Ifany action by Unitholders is taken by written consent, any certificate ordocuments filed with the Secretary of State of Delaware as a result of thetaking of the action shall state, in lieu of any statement required by theDelaware Act concerning any vote of Unitholders, that written consent has beengiven in accordance with the provisions of the Delaware Act and that anywritten notice required by the Delaware Act has been given.

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### (d)           TelephoneConference. Unitholders may participate in and hold a meeting by means ofconference telephone or similar communications equipment by means of which allPersons participating in the meeting can hear each other, and participation insuch meeting shall constitute attendance and presence in person at suchmeeting, except where a Person participates in the meeting for the expresspurpose of objecting to the transaction of any business on the ground that themeeting is not lawfully called or convened.

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**Section 3.4            Issuanceof Additional Units and Interests**.Subject to compliance with the provisions of this Agreement and theSecurityholders Agreement, the Board shall have the right to cause the Companyto issue or sell to any Person (including Unitholders and Affiliates) any ofthe following (which for purposes of this Agreement shall be “AdditionalSecurities”):  (i) additional Unitsor other interests in the Company (including other classes or series thereofhaving different rights), (ii) obligations, evidences of indebtedness, or othersecurities or interests convertible or exchangeable into Units or otherinterests in the Company, and (iii) warrants, options, or other rights to purchaseor otherwise acquire Units or other interests in the Company. Subject to theprovisions of this Agreement, the Board shall determine the terms andconditions governing the issuance of such Additional Securities, including thenumber and designation of such Additional Securities, the preference (withrespect to distributions, liquidations, or otherwise) over any other Units andany required or deemed contributions in connection therewith. Any Person whoacquires Units may be admitted to the Company as a Unitholder pursuant to theterms of Section 11.2 hereof. If any Person acquires additional Units orother interests in the Company or is admitted to the Company as an additionalUnitholder, the Unit Ownership Ledger shall be amended to reflect suchadditional issuance and/or Unitholder, as the case may be.

 

**Section 3.5            IncentiveUnits**.

 

### (a)           The Company mayissue Class B Common Units to existing or new employees, officers, directors,other service providers or consultants of the Company or its Subsidiaries (each,a “Management Unitholder”) pursuant to written agreements approved bythe Board (each such agreement, regardless of its actual title, as amended,modified and waived from time to time in accordance with its terms, is referredto herein as an “Incentive Unit Grant Agreement”). The Company may makethe Class B Common Units and any issuance thereof and any Incentive Unit GrantAgreement subject to the terms and conditions of any equity or unit incentiveplan, as the same may be amended or modified from time to time in accordancewith its terms, as may have been adopted by the Company or its Subsidiaries onor before the date of such issuance or Incentive Unit Grant Agreement. On thedate of each grant of Class B Common Units to a Management Unitholder who is,or as a result of such grant becomes, a holder of Class 

 

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### B Common Unitspursuant to a grant made under an Incentive Unit Grant Agreement or similaragreement, the Board shall establish an initial “Participation Threshold”amount with respect to each Class B Common Unit granted on such date. Unlessotherwise determined by the Board, the Participation Threshold with respect toa Class B Common Unit shall be equal to or greater than the Liquidation Value ofa Class A Common Unit on the date of grant of such Class B Common Unit. TheBoard may designate a series number for each subset of Class B Common Unitsconsisting of Class B Common Units having the same Participation Threshold,which Participation Threshold differs from the Participation Thresholds of allClass B Common Units not included in such subset. If the Board elects to sodesignate Class B Common Units, then the first Class B Common Unit issued on orafter the date hereof shall be designated a “Series 1 Class B Common Unit.”  Each Class B Common Unit’s ParticipationThreshold shall be adjusted after the grant of such Class B Common Unit in thefollowing manner:

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#### (i)            In the event of anyDistribution pursuant to Section 4.1(a)(iii), the ParticipationThreshold of each Class B Common Unit outstanding at the time of suchDistribution shall be reduced (but not below zero) by the amount that eachClass A Common Unit receives in such Distribution (with such reductionoccurring immediately after the determination of the portion of suchDistribution, if any, that such Class B Common Unit is entitled to receive).For this purpose, Distributions shall include Tax Distributions made pursuantto Section 4.1(b) only (i) to the extent such Tax Distributions aremade as a result of the recognition of the built-in gain in any asset thatexisted at the time the relevant Class B Common Unit was issued or (ii) tothe extent that the relevant Class B Common Unit is not also entitled to a TaxDistribution with respect to the item or tier of taxable income giving rise tothe Tax Distribution. For this purpose, the Tax Distribution that arises fromthe recognition of the built-in gain in an asset may be bifurcated between theTax Distribution that relates to the built-in gain that existed at the time therelevant Class B Common Unit was issued and the Tax Distribution that relatesto any additional gain in the asset that accrued since the time the relevantClass B Common Unit was issued. In order to preserve the economic resultsintended by this Agreement, the Board may, in its reasonable discretion,determine whether any Tax Distribution or portion of any Tax Distributionshould reduce the Participation Threshold of a Class B Common Unit.

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#### (ii)           In the event of anyCapital Contribution with respect to outstanding Class A Common Units thatoccurs after the issuance of a series of Class B Common Units, theParticipation Threshold of each Class B Common Unit outstanding at the time ofsuch Capital Contribution shall be increased by the amount contributed withrespect to each Class A Common Unit.

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#### (iii)          If the Company atany time subdivides (by any Unit split or otherwise) the Class A Common Unitsinto a greater number of Units, the Participation Threshold of each Class BCommon Unit outstanding immediately prior to such subdivision shall beproportionately reduced, and if the Company at any time combines (by reverseUnit split or otherwise) the Class A Common Units into a smaller number ofUnits, the Participation Threshold of each Class B Common Unit outstandingimmediately prior to such combination shall be proportionately increased.

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#### (iv)          No adjustment shallbe made in connection with (A) any redemption or repurchase by the Company orany Unitholder of any Units or any forfeiture by 

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#### any Unitholder ofany Units or (B) any Capital Contribution by any Unitholder in exchange fornewly issued Units.

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### (b)           The ParticipationThresholds of each Unitholder’s Class B Common Units shall be set forth on theUnit Ownership Ledger, and Unit Ownership Ledger shall be amended from time totime by the Company as necessary to reflect any adjustments to theParticipation Thresholds of outstanding Class B Common Units required pursuantto this Section 3.5.

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### (c)           Notwithstandinganything in this Section 3.5 to the contrary, the Board shall have thepower to amend the provisions of this Section 3.5 and Section 4.1(a)to achieve the economic results intended by this Agreement, including that(A) each Class A Common Unit has identical entitlement to distributionsunder Section 4.1(a) and (B) the Class B Common Units are profitsinterests when issued for United States federal income tax purposes.

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**Section 3.6            CapitalAccounts**.

 

### (a)           The Company shallmaintain a separate Capital Account for each Unitholder according to the rulesof Treasury Regulation Section 1.704-1(b)(2)(iv). For this purpose, the Companymay (in the discretion of the Board), upon the occurrence of the eventsspecified in Treasury Regulation Section 1.704-1(b)(2)(iv)(f), increase ordecrease the Capital Accounts in accordance with the rules of such regulationand Treasury Regulation Section 1.704-1(b)(2)(iv)(g) to reflect a revaluationof the Company’s property. Without limiting the foregoing, each Unitholder’sCapital Account shall be adjusted:

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#### (i)            by adding anyadditional Capital Contributions made by such Unitholder in consideration forthe issuance of Units;

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#### (ii)           by deducting anyamounts paid to such Unitholder in connection with the redemption or otherrepurchase by the Company of Units;

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#### (iii)          by adding anyProfits allocated in favor of such Unitholder and subtracting any Lossesallocated in favor of such Unitholder; and

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#### (iv)          by deducting anydistributions paid in cash or other assets to such Unitholder by the Company.

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### (b)           For purposes ofcomputing the amount of any item of the Company’s income, gain, loss, ordeduction to be allocated pursuant to Article IV and to be reflected inthe Capital Accounts, the determination, recognition, and classification of anysuch item shall be the same as its determination, recognition, andclassification for federal income tax purposes (including any method ofdepreciation, cost recovery, or amortization used for this purpose); providedthat:

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#### (i)            The computation ofall items of income, gain, loss, and deduction shall include those itemsdescribed in Code Section 705(a)(l)(B) or Code Section 705(a)(2)(B) andTreasury Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the factthat such items are not includable in gross income or are not deductible forfederal income tax purposes.

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#### (ii)           If the Book Valueof any of the Company’s property is adjusted pursuant to Treasury RegulationSection 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall betaken into account as gain or loss from the disposition of such property.

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#### (iii)          Items of income,gain, loss, or deduction attributable to the disposition of the Company’sproperty having a Book Value that differs from its adjusted basis for taxpurposes shall be computed by reference to the Book Value of such property.

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#### (iv)          Items ofdepreciation, amortization, and other cost recovery deductions with respect tothe Company’s property having a Book Value that differs from its adjusted basisfor tax purposes shall be computed by reference to the property’s Book Value inaccordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g).

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#### (v)           To the extent anadjustment to the adjusted tax basis of any asset of the Company pursuant toCode Sections 732(d), 734(b) or 743(b) is required, pursuant to TreasuryRegulation Section 1.704-1(b)(2)(iv)(m), to be taken into account indetermining Capital Accounts, the amount of such adjustment to the Capital Accountsshall be treated as an item of gain (if the adjustment increases the basis ofthe asset) or loss (if the adjustment decreases such basis).

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**Section 3.7            NegativeCapital Accounts**. No Unitholdershall be required to pay to any other Unitholder or the Company any deficit ornegative balance which may exist from time to time in such Unitholder’s CapitalAccount (including upon and after dissolution of the Company).

 

**Section 3.8            NoWithdrawal**. No Person shall beentitled to withdraw any part of such Person’s Capital Contributions or CapitalAccount or to receive any Distribution from the Company, except as expresslyprovided herein or in the other agreements referred to herein.

 

**Section 3.9            LoansFrom Unitholders**. Loans byUnitholders to the Company shall not be considered Capital Contributions. Ifany Unitholder shall loan funds to the Company, the making of such loans shallnot result in any increase in the amount of the Capital Account of suchUnitholder. The amount of any such loans shall be a debt of the Company to suchUnitholder and shall be payable or collectible in accordance with the terms andconditions upon which such loans are made.

 

**ARTICLE IV**

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**DISTRIBUTIONS; REDEMPTIONS AND ALLOCATIONS**

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**Section 4.1            Distributions**.

 

### (a)           DistributionsGenerally. Except as otherwise set forth in this Section 4.1, andsubject to the provisions of Section 18-607 of the Delaware Act, the Board maymake Distributions at any time or from time to time. All Distributions shall bemade only in the following order and priority:

 

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#### (i)            First, tothe Unitholders holding Class A Preferred Units, an amount equal to theaggregate Class A Preferred Unpaid Yield (in the proportion that eachUnitholder’s share of Class A Preferred Unpaid Yield bears to the aggregateClass A Preferred Unpaid Yield) until each such Unitholder has receivedDistributions in respect of such Unitholder’s Class A Preferred Units in anamount equal to the aggregate Class A Preferred Unpaid Yield on such Unitholder’soutstanding Class A Preferred Units as of the time of such Distribution, and noDistribution or any portion thereof may be made pursuant to Sections 4.1(a)(ii)or (iii) below until the entire amount of the Class A Preferred UnpaidYield on the outstanding Class A Preferred Units as of the time of suchDistribution (as limited by the next occurring proviso below) has been paid infull; provided that no Distribution shall be made pursuant to this Section4.1(a)(i) in respect of a Class A Preferred Unit to the extent suchDistribution, when combined with all previous Distributions made pursuant tothis Section 4.1(a)(i), would exceed the aggregate amount by whichProfits of the Company exceed Losses of the Company since the date of issuanceof such Class A Preferred Unit (for this purpose unless otherwise determined bythe Board, to the extent that any Class A Preferred Unit is issued after thedate hereof, Profits and Losses of the Company with respect to that Unit shallbe determined as if the Company had written up its assets under Treasury Reg.§1.704-1(b)(2)(iv)(*f*) inconnection with the issuance of such Class A Preferred Unit).

####  

#### (ii)           Second, tothe Unitholders holding Class A Preferred Units, an amount equal to theaggregate Class A Preferred Unreturned Capital with respect to such Units (inthe proportion that each Unitholder’s share of Class A Preferred UnreturnedCapital with respect to such Class A Preferred Units bears to the aggregateamount of Class A Preferred Unreturned Capital with respect to all Class APreferred Units) until each such Unitholder has received Distributions inrespect of such Unitholder’s Class A Preferred Units in an amount equal to theaggregate Class A Preferred Unreturned Capital with respect to suchUnitholder’s Class A Preferred Units as of the time of such Distribution (atwhich time such Class A Preferred Unit shall be deemed redeemed and cancelledin full without any further action on the part of the Company or any Unitholderor otherwise), and no Distribution or any portion thereof may be made pursuantto Section 4.1(a)(iii) below until the entire amount of Class APreferred Unreturned Capital with respect to the outstanding Class A PreferredUnits as of the time of such Distribution has been paid in full.

####  

#### (iii)          Third, allremaining amounts shall be distributed to the Unitholders holding ParticipatingCommon Units immediately prior to such Distribution as follows:  with respect to each Class A Common Unit, anamount equal to the amount determined by dividing the Grossed-Up Amount by thenumber of Participating Common Units, and, with respect to each ParticipatingClass B Common Unit, an amount equal to the excess of the (A) the amountdetermined by dividing the Grossed-Up Amount by the number of ParticipatingCommon Units over (B) the Participation Threshold with respect to suchParticipating Class B Common Unit. For purposes of this Agreement, “Grossed-UpAmount” means, with respect to any Distribution pursuant to this Section4.1(a)(iii), the sum of (a) the amount of the Distribution pursuant to thisSection 4.1(a)(iii) and (b) the sum of the Participation Thresholds ofall Participating Class B Common Units.

####  

Notwithstanding theforegoing, the portion of any Distribution that would otherwise be made withrespect to any Unvested Common Unit shall not be distributed with 

 

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respect to such Unvested Common Unit (providedthat Tax Distributions shall be made with respect to Unvested Common Unitspursuant to Section 4.1(b)), but shall instead be retained by theCompany and a “Reserve Amount” shall be created on the books and recordsof the Company with respect to such Unvested Common Unit (or the Reserve Amountwith respect to such Unvested Common Unit shall be increased, if a ReserveAmount already exists with respect to such Unvested Common Unit) in an amountequal to the amount so retained by the Company in respect of such UnvestedCommon Unit. The Reserve Amount created (or increased) for each Unvested CommonUnit shall be treated as Distributed for purposes of this Section 4.1(a)and shall be treated as an amount the holder of such Unvested Common Unit isentitled to receive for purposes of Section 4.2. If such Unvested CommonUnit subsequently becomes a Vested Common Unit, the Reserve Amount attributableto such Unvested Common Unit shall be distributed (in connection with the firstDistribution that is not a Tax Distribution that occurs after such vesting)without interest to the holder of such Common Unit, and if such Unvested CommonUnit is repurchased or forfeited, the Reserve Amount attributable to suchUnvested Common Unit shall be cancelled and no longer treated as an amount theholder of such Unvested Common Unit is entitled to receive for purposes of Section4.2.

 

### (b)           Tax Distributions.Notwithstanding any other provision herein to the contrary, so long as theCompany is treated as a partnership for federal and state income tax purposes,the Company shall distribute to the Unitholders in respect of their Units, inthe proportions specified herein, to the extent that funds are legallyavailable therefor and would not be prohibited under any credit facility towhich the Company or any Subsidiary is a party, for each Fiscal Year an amount(any such amount, a “Tax Distribution”) in cash equal to the product of:(i) the Company Income Amount for the Fiscal Year, multiplied by (ii)the Assumed Tax Rate for such Fiscal Year. The “Company Income Amount”for a Fiscal Year shall be an amount, if positive, equal to the net taxableincome of the Company for such Fiscal Year, minus any net taxable loss of theCompany for any prior Fiscal Year not previously taken into account forpurposes of this Section 4.2 to the extent such loss would be availableunder the Code to offset income of the Unitholders (or, as appropriate, thedirect or indirect partners or members of the Unitholders) determined as ifincome and loss from the Company was the only income and loss of theUnitholders (or, as appropriate, the direct or indirect partners or members ofthe Unitholders) in such Fiscal Year and all prior Fiscal Years. The “AssumedTax Rate” for a Fiscal Year shall be equal to the sum of the highestmarginal federal, state, and local income tax rates applicable to anyUnitholder residing in the United States or its partners or members, asdetermined by the Board based on the information available to it (taking intoaccount the character of the Company’s income and the deductibility of stateand local taxes for federal income tax purposes). Such Tax Distributions shallbe made to Unitholders on an estimated basis each quarter as determined by theBoard. The Board shall be entitled to adjust subsequent Tax Distributions up ordown to reflect any variation between such estimated quarterly Tax Distributionsand the Tax Distributions that would have been computed under this Section4.1(b) based on subsequent Tax information. Tax Distributions shall be madeto the Unitholders in the proportion that the amount of the Company’s taxableincome allocated to such Unitholder pursuant to this Article IV for such FiscalYear (net of any taxable losses previously allocated to such Holder that aretaken into account in determining the Company Income Amount for such FiscalYear) bears to the Company’s total taxable income allocated to all Unitholderspursuant to this Article IV for such Fiscal Year (net of any taxable lossespreviously allocated to all Unitholder that are taken into account indetermining the Company Income Amount for such

 

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### Fiscal Year). TaxDistributions shall be considered advances on Distributions to Unitholdersunder Section 4.1(a).

###  

### (c)           Persons ReceivingDistributions. Each Distribution shall be made to the Persons shown on theCompany’s books and records as Unitholders as of the date of such Distribution;provided, however, that any transferor and transferee of Units maymutually agree as to which of them should receive payment of any Distributionunder Section 4.1. In the event that restrictions on transfer or changein beneficial ownership of Units set forth herein or in the SecurityholdersAgreement have been breached, the Company may withhold distributions in respectof the affected Units until such breach has been cured.

###  

### (d)           Distributions ofIn Kind Property. If the Company distributes property in kind that wascontributed to the Company (or received in a tax-free exchange for propertycontributed to the Company), the Company shall, if possible, distribute (and bedeemed to distribute) such property to the Unitholder who contributed suchproperty, to the extent that such Unitholder is entitled to receive aDistribution at such time under the economic priorities set out in this Section4.1.

###  

**Section 4.2            Allocations**. Except as otherwise provided in Section4.3, Profits and Losses for any Fiscal Year shall be allocated among theUnitholders in such a manner that, as of the end of such Fiscal Year, the sumof (i) the Capital Account of each Unitholder, (ii) such Unitholder’s share ofMinimum Gain (as determined according to Treasury Regulation Section1.704-2(g)), and (iii) such Unitholder’s partner nonrecourse debt minimum gain(as defined in Treasury Regulation Section 1.704-2(i)(2)) shall be equal to therespective net amounts, positive or negative, which would be distributed tothem, determined as if the Company were to (i) liquidate the assets of theCompany for an amount equal to their Book Value, and (ii) distribute theproceeds of liquidation pursuant to Section 13.2.

 

**Section 4.3            SpecialAllocations**.

 

### (a)           Losses attributableto partner nonrecourse debt (as defined in Treasury Regulation Section1.704-2(b)(4)) shall be allocated in the manner required by Treasury RegulationSection 1.704-2(i). If there is a net decrease during a Fiscal Year in partnernonrecourse debt minimum gain (as defined in Treasury Regulation Section1.704-2(i)(3)), Profits for such Fiscal year (and, if necessary, for subsequentFiscal Years) shall be allocated to the Unitholders in the amounts and of suchcharacter as determined according to, and subject to the exceptions containedin, Treasury Regulation Section 1.704-2(i)(4).

###  

### (b)           If there is a netdecrease in Minimum Gain during any Fiscal Year, each Unitholder shall beallocated Profits for such Fiscal Year (and, if necessary, for subsequentFiscal Years) in the amounts and of such character as determined according to,and subject to the exceptions contained in, Treasury Regulation Section1.704-2(f). This Section 4.3(b) is intended to be a minimum gainchargeback provision that complies with the requirements of Treasury RegulationSection 1.704-2(f), and shall be interpreted in a manner consistent therewith.

###  

### (c)           If any Unitholderthat unexpectedly receives an adjustment, allocation, or distribution describedin Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an

###  

### 20

### 

###  

### Adjusted CapitalAccount Deficit as of the end of any Taxable Year, computed after theapplication of Sections 4.3(a) and 4.3(b) but before theapplication of any other provision of this Article IV, then Profits for suchTaxable Year shall be allocated to such Unitholder in proportion to, and to theextent of, such Adjusted Capital Account Deficit. This Section 4.3(c) isintended to be a qualified income offset provision as described in TreasuryRegulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a mannerconsistent therewith.

###  

### (d)           Profits and Lossesshall be allocated in a manner consistent with the manner that the adjustmentsto the Capital Accounts are required to be made pursuant to Treasury RegulationSection 1.704-1(b)(2)(iv)(j), (k), and (m).

###  

### (e)           The allocations setforth in Sections 4.3(a)-(d) (the “Regulatory Allocations”) areintended to comply with certain requirements of Sections 1.704-1(b) and 1.704-2of the Treasury Regulations. The Regulatory Allocations may not be consistentwith the manner in which the Unitholders intend to allocate Profit and Loss ofthe Company or make distributions by the Company. Accordingly, notwithstandingthe other provisions of this Article IV, but subject to theRegulatory Allocations, income, gain, deduction, and loss shall be reallocatedamong the Unitholders so as to eliminate the effect of the RegulatoryAllocations and thereby cause the respective Capital Accounts of theUnitholders to be in the amounts (or as close thereto as possible) they wouldhave been if Profit and Loss (and such other items of income, gain, deduction,and loss) had been allocated without reference to the Regulatory Allocations.In general, the Unitholders anticipate that this will be accomplished byspecially allocating other Profit and Loss (and such other items of income,gain, deduction, and loss) among the Unitholders so that the net amount of theRegulatory Allocations and such special allocations to each such Unitholder iszero.

###  

**Section 4.4            TaxAllocations**.

 

### (a)           The income, gains,losses, deductions, and credits of the Company will be allocated, for federal,state, and local income tax purposes, among the Unitholders in accordance withthe allocation of such income, gains, losses, deductions, and credits among theUnitholders for computing their Capital Accounts; except that, if any suchallocation is not permitted by the Code or other applicable law, then theCompany’s subsequent income, gains, losses, deductions, and credits will beallocated among the Unitholders so as to reflect as nearly as possible theallocation set forth herein in computing their Capital Accounts.

###  

### (b)           Items of theCompany’s taxable income, gain, loss, and deduction with respect to anyproperty contributed to the capital of the Company shall be allocated among theUnitholders in accordance with Code Section 704(c) so as to take account of anyvariation between the adjusted basis of such property to the Company forfederal income tax purposes and its Book Value, using any method allowed byCode Section 704(c) and the Treasury Regulations thereunder selected by theBoard.

###  

### (c)           If the Book Value ofany asset of the Company is adjusted pursuant to the requirements of TreasuryRegulation Section 1.704-1(b)(2)(iv)(e) or (f) subsequent allocations of itemsof taxable income, gain, loss, and deduction with respect to such asset shalltake account of any variation between the adjusted basis of such asset forfederal income tax purposes and its 

 

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### Book Value in thesame manner as under Code Section 704(c), using any method allowed by CodeSection 704(c) and the Treasury Regulations thereunder selected by the Board.

###  

### (d)           Allocations of taxcredits, tax credit recapture, and any items related thereto shall be allocatedto the Unitholders according to their interests in such items as determined bythe Board taking into account the principles of Treasury Regulation Section1.704-1(b)(4)(ii).

###  

### (e)           Allocations pursuantto this Section 4.4 are solely for purposes of federal, state, and localtaxes and shall not affect, or in any way be taken into account in computing,any Unitholder’s Capital Account or Unit of Profits, Losses, Distributions, orother items of the Company pursuant to any provision of this Agreement.

###  

**Section 4.5            Indemnificationand Reimbursement for Payments on Behalf of a Unitholder**. If the Company is required by law to makeany payment that is specifically attributable to a Unitholder or a Unitholder’sstatus as such (including, but not limited to, federal, state, and localwithholding taxes, personal property taxes, personal property replacementtaxes, and unincorporated business taxes), then such Unitholder shall indemnifythe Company in full for the entire amount paid (including interest, penaltiesand related expenses). The Company may pursue and enforce all rights andremedies it may have against each Unitholder under this Section 4.5,including instituting a lawsuit to collect such indemnification andcontribution with interest calculated at a rate equal to 10% per annum,compounded as of the last day of each year (but not in excess of the highestrate per annum permitted by law) or reducing Distributions which wouldotherwise be made to such Unitholder until the Company has recovered the amountrequired to be indemnified (provided that the amount of any suchreduction shall be deemed to have been distributed to such Unitholder for allpurposes under this Agreement).

 

**Section 4.6            Transferof Capital Accounts**. If aUnitholder transfers an interest in the Company to a new or existingUnitholder, the transferee Unitholder shall succeed to that portion of thetransferor’s Capital Account that is attributable to the transferred interest.

 

**Section 4.7            CertainRepurchases and Redemptions**.Notwithstanding anything to the contrary in this Agreement, the Company may, atits option, exercise its repurchase or redemption rights, if any, and fulfillits repurchase or redemption obligations, if any, to a holder of Units pursuantto this Agreement or any Management Unit Purchase Agreement, in whole or inpart, by distributing to such holder securities issued by VWR Investors, Inc.or any other direct Subsidiary of the Company, so long as VWR Investors, Inc.or such Subsidiary directly or indirectly owns all or substantially all of theassets of the Company on a consolidated basis, with a value equal to theredemption or repurchase price of the Units of such holder to be redeemed orrepurchased; provided that, following such distribution VWR Investors,Inc. or such Subsidiary shall redeem or repurchase such securities from suchholder within one business day following such distribution and the purchase pricefor such redemption or repurchase shall be paid by VWR Investors, Inc. or suchSubsidiary (i) for cash to the extent that the Company would have beenobligated (but for the Company’s exercise of its option under this Section4.7) to pay for such repurchase or redemption in cash and/or (ii) byissuance of a subordinated promissory note to the extent that the Company wouldhave been obligated (but for the Company’s exercise of its option under this Section4.7) to pay for such repurchase or redemption by the issuance of a 

 

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subordinated promissorynote.  Any such subordinated promissorynote issued pursuant to this Section 4.7 shall have substantially thesame terms and conditions as the subordinated promissory note that the Companywas otherwise obligated to issue would have had.  Each holder of Units agrees to take suchactions and to enter into such agreements as the Company may reasonably requestin order to carryout the intent and provisions of this Section 4.7.  The Company and the holder agree to treat anysuch distribution as a distribution of securities of the Subsidiary under CodeSection 731(a).

 

# **ARTICLE V**

# ** **

# **BOARD OF MANAGERS; OFFICERS**

# ** **

**Section 5.1****            Managementby the Board of Managers**.

 

### (a)           No Management byUnitholders.  The Unitholders shallnot manage and control the business and affairs of the Company, except forsituations in which the approval of Unitholders is required by this Agreementor by non-waivable provisions of applicable law.

###  

### (b)           Management by Boardof Managers.  In managing thebusiness and affairs of the Company and exercising their powers, the Managersshall be members of and shall act as a Board of Managers (the “Board”).  The Board may act (A) by resolutions adoptedat a meeting and by written consents pursuant to Section 5.3, (B) bydelegating power and authority to committees pursuant to Section 5.4,and (C) by delegating power and authority to any Officer pursuant to Section5.5(a).  Except as otherwise providedin any other written agreement to which a Manager is a party, each Unitholderacknowledges and agrees that no Manager shall, as a result of being a Manager(as such), be bound to devote all of his or her business time to the affairs ofthe Company, and that he or she and his or her Affiliates do and will continueto engage for their own account and for the accounts of others in otherbusiness ventures.

###  

### (c)           Authority of Boardof Managers.  Except for situationsin which the approval of the Unitholders or any specific Unitholder is requiredby the terms of this Agreement or the Securityholders Agreement and subject tothe provisions of this Section 5.1(b), (i) the Board shall conduct,direct and exercise full control over all activities of the Company, (ii) allmanagement powers over the business and affairs of the Company shall be vestedin the Board and (iii) the Board shall have the power to bind or take anyaction on behalf of the Company, or to exercise in its sole discretion anyrights and powers (including the rights and powers to take certain actions,give or withhold certain consents or approvals, or make certain determinations,opinions, judgments, or other decisions) granted to the Board or the Companyunder this Agreement, or any other agreement, instrument, or other document towhich the Company is a party or by virtue of its holding the equity interestsof any Subsidiary thereof.  The Boardshall be the “manager” of the Company for the purposes of the Delaware Act.

###  

### (d)           Officers.  The management of the business and affairs ofthe Company by the Officers and the exercising of their powers shall beconducted under the supervision of and subject to the approval of the Board.

###  

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**Section 5.2****            Compositionand Election of the Board of Managers**.

 

### (a)           Number andDesignation.  The number of Managerson the Board shall be initially established at five (5), but shall thereafterbe comprised of such number of Managers as to be the number necessary to allowfor the designations provided for pursuant to Section 5.2(a)(i) through(iv) below.  The Board shall at all timesbe comprised of the following persons:

###  

#### (i)            one (1) representativedesignated by MDCP-A from time to time, who shall initially be Timothy P.Sullivan (the “MDCP-A Manager”);

####  

#### (ii)           one (1) representativedesignated by MDCP-C from time to time, who shall initially be Nicholas W.Alexos (the “MDCP-C Manager”);

####  

#### (iii)          one (1) representativedesignated by MDCP-Co-Invest 1 from time to time, who shall initially beTimothy D. Sheehan (the “MDCP-Co-Invest 1 Manager”);

####  

#### (iv)          such number of additionalrepresentatives as are designated by MDP from time to time, who initially shallbe Harry M. Jansen Kraemer (each an “Additional MDCP Manager” andcollectively with the MDCP-A Manager, the MDCP-C Manager and the MDCP Co-Invest1 Manager, the “Investor Managers”); and

####  

#### (v)           the Company’s chiefexecutive officer, who shall initially be John Ballbach (the “ExecutiveManager”).

####  

### (b)           Term.  Members of the Board shall serve from theirdesignation in accordance with the terms hereof until the earlier of theirresignation, death or removal in accordance with the terms hereof.  Members of the Board need not be Unitholdersand need not be residents of the State of Delaware.  A person shall become a member of the Boardeffective upon receipt by the Company at its principal place of business of awritten notice addressed to the Board (or at such later time or upon thehappening of some other event specified in such notice) of such person’sdesignation from the person or persons entitled to designate such manager pursuantto Section 5.2(a) above.  A memberof the Board may resign as such by delivering his, her or its writtenresignation to the Company at the Company’s principal office addressed to theBoard.  Such resignation shall beeffective upon receipt unless it is specified to be effective at some othertime or upon the happening of some other event.

###  

### (c)           Removal.  If an Executive Manager ceases to serve asthe Company’s chief executive officer, such Executive Manager shallautomatically upon such cessation cease to serve as a Manager and as a memberof any committee of the Board.  Theremoval from the Board or any of its committees (with or without cause) of anyInvestor Manager shall be upon (and only upon) the written request of MDP.

###  

### (d)           Vacancies.  In the event that any designee under Section5.2(a) for any reason ceases to serve as a member of the Board, (i) theresulting vacancy on the Board shall be filled by a Person designated by theperson or persons originally entitled to designate such Manager pursuant to Section5.2(a) above or, in the case of the Executive Manager, filled by theCompany’s next elected chief executive officer (provided that, if anyparty fails to designate a person to fill a vacancy on the Board pursuant tothe terms of this Section 5.2 or, in the case of the Executive Manager,no new chief executive officer has been elected, such vacant managership shallremain vacant until such managership is filled pursuant to this Section5.2(d)

###  

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### or MDP determines that such vacancy will notbe filled), and (ii) such designee shall be removed promptly after such timefrom each committee of the Board.

###  

### (e)           Reimbursement.  The Company shall pay all reimbursableout-of-pocket costs and expenses incurred by each member of the Board incurredin the course of their service hereunder, including in connection withattending regular and special meetings of the Board, any board of managers orboard of directors of each of the Company’s Subsidiaries and/or any of theirrespective committees; provided that, so long as the Management ServicesAgreement is in effect, Investor Managers who are employees of MDP LLC shallnot be entitled to reimbursement by the Company of out-of-pocket travelexpenses in connection with attending regular and special meetings of theBoard, any board of managers or board of directors of each of the Company’sSubsidiaries and/or any of their respective committees.

###  

### (f)            Compensation ofManagers.  Except as approved by theholders of the Required Interest, Managers shall receive no compensation forserving in such capacity.

###  

### (g)           Reliance by ThirdParties.  Any Person dealing with theCompany, other than a Unitholder, may rely on the authority of the Board (orany Officer authorized by the Board) in taking any action in the name of theCompany without inquiry into the provisions of this Agreement or complianceherewith, regardless of whether that action actually is taken in accordancewith the provisions of this Agreement. Every agreement, instrument or document executed by the Board (or anyOfficer authorized by the Board) in the name of the Company with respect to anybusiness or property of the Company shall be conclusive evidence in favor ofany Person relying thereon or claiming thereunder that (i) at the time of theexecution or delivery thereof, this Agreement was in full force and effect,(ii) such agreement, instrument or document was duly executed according to thisAgreement and is binding upon the Company and (iii) the Board or such Officerwas duly authorized and empowered to execute and deliver such agreement,instrument or document for and on behalf of the Company.

###  

### (h)           Subsidiary Board ofManagers or Board of Directors.  TheCompany shall at all times, unless otherwise determined by the Board, cause theboard of managers or board of directors of each of the Company’s Subsidiariesto be comprised of the same persons who are then Managers of the Board pursuantto Section 5.2(a) above.

###  

**Section 5.3****            BoardMeetings and Actions by Written Consent**.

 

### (a)           Quorum; Voting.  A majority of the total number of Managersthen serving on the Board (i.e., excluding any vacancies on the Board) must bepresent (including for purposes of actions taken pursuant to Section 5.3(f))in order to constitute a quorum for the transaction of business of the Board,and except as otherwise provided in this Agreement, the act of a majority ofthe Managers present at a meeting of the Board at which a quorum is presentshall be the act of the Board.  When aquorum is once present to commence a meeting of the Board, it is broken if lessthan one Investor Manager shall remain present at such meeting and no furtherbusiness may be transacted at such meeting until such time as a quorum shallagain be present.  If a quorum shall notbe present during a meeting of the Board, the Managers present thereat mayadjourn the meeting from time to time, without notice other than announcementat the meeting, until a quorum shall be present.  A Manager who is present at a meeting of the 

 

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### Board at which action on any matter is takenshall be presumed to have assented to the action unless his dissent shall beentered in the minutes of the meeting or unless he shall file his written dissentto such action with the person acting as secretary of the meeting before theadjournment thereof or shall deliver such dissent to the Company immediatelyafter the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor ofsuch action.

###  

### (b)           Place; Attendance.  Meetings of the Board may be held at suchplace or places as shall be determined from time to time by resolution of theBoard.  At all meetings of the Board,business shall be transacted in such order as shall from time to time bedetermined by resolution of the Board. Attendance of a Manager at a meeting shall constitute a waiver of noticeof such meeting, except where a Manager attends a meeting for the express purposeof objecting to the transaction of any business on the ground that the meetingis not lawfully called or convened.

###  

### (c)           Meeting InConnection With Unitholder Meeting. In connection with any meeting of Unitholders, the Managers may, if aquorum is present, hold a meeting for the transaction of business immediatelyafter and at the same place as such meeting of the Unitholders.  Notice of such meeting at such time and placeshall not be required.

###  

### (d)           Time, Place andNotice.  Regular meetings of theBoard shall be held at such times and places as shall be designated from timeto time by resolution of the Board. Notice of such meetings shall not be required.

###  

### (e)           Special Meetings.  Special meetings of the Board may be calledby any Manager on at least 24 hours’ notice to each other Manager or by theholders of the Required Interest on at least 24 hours’ notice to eachManager.  Any such notice need not statethe purpose or purposes of, nor the business to be transacted at, such meeting,except as may otherwise be required by law or provided for in this Agreement.

###  

### (f)            Action by WrittenConsent or Telephone Conference.  Anyaction permitted or required by the Delaware Act, the Certificate or thisAgreement to be taken at a meeting of the Board or any committee designated bythe Board may be taken without a meeting if a consent in writing, setting forththe action to be taken, is signed by all the Managers or members of suchcommittee, as the case may be.  An e-mailtransmission or a photographic, photostatic, facsimile or similar reproductionof a writing signed by a Manager shall be regarded as signed by the Manager forpurposes of this Section 5.3(f). Such consent shall have the same force and effect as a unanimous vote ata meeting and may be stated as such in any document or instrument filed withthe Secretary of State of Delaware, and the execution of such consent shallconstitute attendance or presence in person at a meeting of the Board or anysuch committee, as the case may be. Subject to the requirements of the Delaware Act, the Certificate or thisAgreement for notice of meetings, unless otherwise restricted by theCertificate, the Managers or members of any committee designated by the Boardmay participate in and hold a meeting of the Board or any committee, as thecase may be, by means of a conference telephone or similar communicationsequipment by means of which all persons participating in the meeting can heareach other, and participation in such meeting shall constitute attendance andpresence in person at such meeting, except where a person participates in themeeting for the express purpose of 

 

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### objecting to the transaction of any businesson the ground that the meeting is not lawfully called or convened.

###  

**Section 5.4****            Committees;Delegation of Authority and Duties**.

 

### (a)           Committees;Generally.  The Board may, from timeto time, designate one or more committees. Any such committee, to the extent provided in the enabling resolution orin the Certificate or this Agreement, shall have and may exercise all of theauthority of the Board.  At every meetingof any such committee, the presence of a majority of all the members thereofshall constitute a quorum, and the affirmative vote of a majority of themembers present shall be necessary for the adoption of any resolution.  The Board may dissolve any committee at anytime, unless otherwise provided in the Certificate or this Agreement.

###  

### (b)           Audit Committee.  The Board may establish an audit committee toselect the Company’s independent accountants and to review the annual audit ofthe Company’s financial statements conducted by such accountants.

###  

### (c)           Delegation;Generally.  The Board may, from timeto time, delegate to one or more Persons (including any Manager or Officer)such authority and duties as the Board may deem advisable in addition to thosepowers and duties set forth in Section 5.1(b) hereof.  The Board also may assign titles (includingchairman, chief executive officer, president, vice president, secretary,assistant secretary, treasurer and assistant treasurer) to any Manager,Unitholder or other individual and may delegate to such Manager, Unitholder orother individual certain authority and duties. Any number of titles may be held by the same Manager, Unitholder orother individual.  Any delegationpursuant to this Section 5.4(c) may be revoked at any time by the Board.

###  

### (d)           Third-party Reliance.  Any Person dealing with the Company, otherthan a Unitholder, may rely on the authority of any Officer in taking anyaction in the name of the Company without inquiry into the provisions of thisAgreement or compliance herewith, regardless of whether that action actually istaken in accordance with the provisions of this Agreement.

###  

**Section 5.5****            Officers**.

 

### (a)           Designation andAppointment.  The Board may (but neednot), from time to time, designate and appoint one or more persons as anOfficer of the Company.  No Officer needbe a resident of the State of Delaware, a Unitholder or a Manager.  Any Officers so designated shall have such authorityand perform such duties as the Board may, from time to time, delegate tothem.  The Board may assign titles toparticular Officers.  Unless the Boardotherwise decides, if the title is one commonly used for officers of a businesscorporation formed, the assignment of such title shall constitute thedelegation to such Officer of the authority and duties that are normallyassociated with that office, subject to (i) any specific delegation ofauthority and duties made to such Officer by the Board pursuant to the thirdsentence of this Section 5.5(a) or (ii) any delegation of authority andduties made to one or more Officers pursuant to the terms of Section 5.4(c).  Each Officer shall hold office until suchOfficer’s successor shall be duly designated and shall qualify or until suchOfficer’s death or until 

 

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### such Officer shall resign or shall have beenremoved in the manner hereinafter provided. Any number of offices may be held by the same individual.  The salaries or other compensation, if any,of the Officers and agents of the Company shall be fixed from time to time bythe Board.

###  

### (b)           Resignation;Removal; Vacancies.  Any Officer(subject to any contract rights available to the Company, if applicable) mayresign as such at any time. Such resignation shall be made in writing and shalltake effect at the time specified therein, or if no time be specified, at thetime of its receipt by the Board.  Theacceptance of a resignation shall not be necessary to make it effective, unlessexpressly so provided in the resignation. Any Officer may be removed as such, either with or without cause, by theBoard in its discretion at any time or by the holders of the Required Interestin their discretion at any time; provided, however, that such removalshall be without prejudice to the contract rights, if any, of the individual soremoved.  Designation of an Officer shallnot of itself create contract rights. Any vacancy occurring in any office of the Company may be filled by theBoard and shall remain vacant until filled by the Board.

###  

### (c)           Duties of Officers;Generally.  The Officers, in theperformance of their duties as such, shall owe to the Unitholders duties ofloyalty and due care of the type owed by the officers of a corporation to suchcorporation and its stockholders under the laws of the State of Delaware.

###  

# **ARTICLE VI**

# ** **

# **GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS**

# ** **

**Section 6.1****            Limitationof Liability**.

 

### (a)           Except as otherwiseprovided by applicable law, the debts, obligations, and liabilities of theCompany, whether arising in contract, tort, or otherwise, shall be solely thedebts, obligations, and liabilities of the Company, and no Unitholder shall beobligated personally for any such debt, obligation, or liability of the Companysolely by reason of being a Unitholder of the Company; provided that aUnitholder shall be required to return to the Company any Distribution made toit in clear and manifest accounting or similar error and may be required toprovide indemnification pursuant to an Approved Sale pursuant to Section 5of the Securityholders Agreement or a transfer pursuant to Section 2 ofthe Securityholders Agreement.  Theimmediately preceding sentence shall constitute a compromise to which all Unitholdershave consented within the meaning of the Delaware Act.  Notwithstanding anything contained herein tothe contrary, the failure of the Company to observe any formalities orrequirements relating to the exercise of its powers or management of its businessand affairs under this Agreement or the Delaware Act shall not be grounds forimposing personal liability on the Unitholders for liabilities of the Company.

###  

### (b)           Except as set forth in Section6.1(c) or as otherwise agreed in a separate writing between a Unitholderand the Company with respect to such Unitholder, in no event shall anyUnitholder be required to make any additional Capital Contribution to theCompany or be subject to any form of capital call.

 

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### (c)           In accordance with theDelaware Act and the laws of the State of Delaware, a Unitholder of a limitedliability company may, under certain circumstances, be required to returnamounts previously distributed to such Unitholder.  It is the intent of the Unitholders that nodistribution to any Unitholder pursuant to Article IV hereof shall bedeemed a return of money or other property paid or distributed in violation ofthe Delaware Act.  The payment of anysuch money or distribution of any such property to a Unitholder shall be deemedto be a compromise within the meaning of the Delaware Act, and the Unitholderreceiving any such money or property shall not be required to return to anyPerson any such money or property. However, if any court of competent jurisdiction holds that,notwithstanding the provisions of this Agreement, any Unitholder is obligatedto make any such payment, such obligation shall be the obligation of suchUnitholder and not of any other Unitholder.

###  

**Section 6.2****            Lackof Authority**.  No Unitholder inhis, her, or its capacity as such (other than the members of the Board actingas the Board or an authorized Officer of the Company) has the authority orpower to act for or on behalf of the Company in any manner, to do any act thatwould be (or could be construed as) binding on the Company or to make anyexpenditures on behalf of the Company, and the Unitholders hereby consent tothe exercise by the Board of the powers conferred on it by law and thisAgreement.

 

**Section 6.3****            NoRight of Partition**.  NoUnitholder shall have the right to seek or obtain partition by court decree oroperation of law of any of the Company’s property, or the right to own or useparticular or individual assets of the Company.

 

**Section 6.4****            UnitholdersRight to Act**.  For situationswhich the approval of any Unitholders or class thereof (rather than theapproval of the Board on behalf of the Unitholders) is required, theUnitholders shall act through meetings and written consents as described in Section3.2.

 

**Section 6.5****            InvestmentOpportunities; Conflicts of Interest**.

 

### (a)           Managers.  Subject to the other provisions of thisAgreement or any other agreement to which such Manager is a party, each Managerof the Company (other than a Manager that is also an employee of the Company orany of its Subsidiaries) at any time and from time to time may engage in andown interests in other business ventures of any and every type and description,independently or with others (including ones in competition with the Company)with no obligation to offer to the Company or any other Unitholder, Manager orofficer the right to participate therein.

###  

### (b)           ManagementUnitholders.  Each Unitholder that isan Executive (as defined in the Securityholders Agreement) shall, and shallcause each of its Affiliates to, bring all investment or business opportunitiesto the Company of which any of the foregoing become aware during the period ofhis or her employment with the Company or its Subsidiaries and which theyreasonably believe are within the scope and investment objectives of theCompany or any of its Subsidiaries or are otherwise competitive with thebusiness of the Company or any of its Subsidiaries but only to the extentrequired by the corporate opportunity doctrine as applied to corporationsorganized under the laws of the State of Delaware.

 

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### (c)           Other Unitholders.  The Unitholders expressly acknowledge that,subject to the other express provisions of this Agreement, (A) the Other Unitholdersand their respective Affiliates and stockholders, directors, managers,officers, controlling persons, partners and employees (collectively, “RelatedPersons”) are permitted to have, and may presently or in the future have,investments or other business relationships with entities engaged in thebusiness of the Company or its Subsidiaries (including in areas in which theCompany or any of its Subsidiaries may in the future engage in business), andin related businesses other than through the Company or any of its Subsidiaries(an “Other Business”), (B) the Other Unitholders and their respectiveAffiliates and Related Persons have and may develop a strategic relationshipwith businesses that are and may be competitive with the Company or any of itsSubsidiaries, (C) none of the Other Unitholders or their respective Affiliatesor Related Persons (including their respective representatives serving on theBoard) will be prohibited by virtue of their investments in the Company or itsSubsidiaries or their service on the Board or any board of directors or othergoverning body of any Subsidiary from pursuing and engaging in any suchactivities, (D) none of the Other Unitholders or their respective Affiliates orRelated Persons (including their respective representatives serving on theBoard) will be obligated to present to the Company, or any Unitholder, Manager,or officer or inform any of them of any such opportunity, relationship orinvestment, (E) neither the Company nor any other Unitholder, Manager or officeror Subsidiary of the Company will acquire or be entitled to any interest orparticipation in any Other Business as a result of the participation therein ofany of the Other Unitholders or their respective Affiliates or Related Personsand (F) the involvement of the Other Unitholders or their respective Affiliatesor Related Persons (including their respective representatives serving on theBoard) in any Other Business will not constitute a conflict of interest by suchPersons with respect to the Company, any of its Subsidiaries or itsUnitholders.  No amendment or repeal ofthis Section 6.5 shall apply to or have any effect on the liability oralleged liability of any officer, Manager or Unitholder of the Company for orwith respect to any opportunities of which such officer, Manager or Unitholderbecomes aware prior to such amendment or repeal.

###  

**Section 6.6****            TransactionsBetween the Company and the Unitholders**.  Notwithstanding that it may constitute aconflict of interest, the Unitholders or their Affiliates may engage in anycontract or transaction (including the purchase, sale, lease or exchange of anyproperty or rendering of any service or the establishment of any salary, othercompensation or other terms of employment) with the Company so long as suchcontract or transaction is approved by a majority of the disinterested membersof the Board (even though the disinterested members are less than a quorum) orthe contract or transaction is at arm’s length at the time that it isauthorized or ratified by the Board.  Byits execution hereof, each Unitholder acknowledges and consents to performanceby the Company and/or its Subsidiaries of its obligations under that theManagement Services Agreement, which was entered into with an Affiliate of MDP.

 

# **ARTICLE VII**

# ** **

# **EXCULPATION AND INDEMNIFICATION**

# ** **

**Section 7.1****            Exculpation**.  NoOfficer or Manager shall be liable to any other Officer, Manager, the Companyor to any Unitholder for any loss suffered by the Company or any Unitholderunless such loss is caused by such Person’s gross negligence, willfulmisconduct, violation of law or material breach of this Agreement.  The Officers and Managers shall not be 

 

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liable for errors in judgmentor for any acts or omissions that do not constitute gross negligence, willfulmisconduct, violation of law or material breach of this Agreement.  Any Officer or Manager may consult withcounsel and accountants in respect of the Company’s affairs, and provided suchPerson acts in good faith reliance upon the advice or opinion of such counselor accountants, such Person shall not be liable for any loss suffered by theCompany or any Unitholder in reliance thereon.

 

**Section 7.2****            Rightto Indemnification**.  Subject tothe limitations and conditions as provided in this Article VII, each Person whowas or is made a party or is threatened to be made a party to or is involved inany threatened, pending or completed action, suit or proceeding, whether civil,criminal, administrative, arbitrative (hereinafter a “Proceeding”), orany appeal in such a Proceeding or any inquiry or investigation that could leadto such a Proceeding, by reason of the fact that he or she, or a Person of whomhe or she is the legal representative, is or was a Unitholder, Manager orOfficer, or while a Unitholder, Manager or Officer is or was serving at therequest of the Company as a manager, director, officer, partner, venturer,proprietor, trustee, employee, agent or similar functionary of another foreignor domestic limited liability company, corporation, partnership, joint venture,sole proprietorship, trust, employee benefit plan or other enterprise shall beindemnified by the Company to the fullest extent permitted by the Delaware Act,as the same exist or may hereafter be amended (but, in the case of any suchamendment, only to the extent that such amendment permits the Company toprovide broader indemnification rights than said law permitted the Company toprovide prior to such amendment) against judgments, penalties (including exciseand similar taxes and punitive damages), fines, settlements and reasonableexpenses (including attorneys’ fees) actually incurred by such Person inconnection with such Proceeding, and indemnification under this Article VIIshall continue as to a Person who has ceased to serve in the capacity whichinitially entitled such Person to indemnity hereunder.  The rights granted pursuant to this ArticleVII shall be deemed contract rights, and no amendment, modification orrepeal of this Article VII shall have the effect of limiting or denyingany such rights with respect to actions taken or Proceedings arising prior toany amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this ArticleVII could involve indemnification for negligence or under theories ofstrict liability.

 

**Section 7.3****            AdvancePayment**.  Reasonable expensesincurred by a Person of the type entitled to be indemnified under Section7.2 who was, is or is threatened to be made a named defendant or respondentin a Proceeding shall be paid by the Company in advance of the finaldisposition of the Proceeding upon receipt of an undertaking by or on behalf ofsuch Person to repay such amount if it shall ultimately be determined that heor she is not entitled to be indemnified by the Company.

 

**Section 7.4****            Indemnificationof Employees and Agents**.  TheCompany, by adoption of a resolution of the Board, may indemnify and advanceexpenses to an employee or agent of the Company to the same extent and subjectto the same conditions under which it may indemnify and advance expenses toPersons who are not or were not Managers or Officers but who are or wereserving at the request of the Company as a manager, director, officer, partner,venturer, proprietor, trustee, employee, agent or similar functionary ofanother foreign or domestic limited liability company, corporation,partnership, joint venture, sole proprietorship, trust, employee benefit planor other enterprise against any liability asserted against him and 

 

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incurred by him in such acapacity or arising out of his status as such a Person to the same extent thatit may indemnify and advance expenses to Managers and Officers under this ArticleVII.

 

**Section 7.5****            Appearanceas a Witness**.  Notwithstandingany other provision of this Article VII, the Company shall pay orreimburse reasonable out-of-pocket expenses incurred by a Manager or Officer inconnection with his appearance as a witness or other participation in aProceeding at a time when he is not a named defendant or respondent in theProceeding.

 

**Section 7.6****            Nonexclusivityof Rights**.  The right toindemnification and the advancement and payment of expenses conferred in this ArticleVII shall not be exclusive of any other right which a Manager, Officer orother Person indemnified pursuant to Section 7.2 may have or hereafteracquire under any law (common or statutory), provision of the Certificate orthis Agreement, agreement, vote of Unitholders or disinterested Managers orotherwise.

 

**Section 7.7****            Insurance**.  The Company shall, if available oncommercially reasonable terms, purchase and maintain insurance, or cause itsSubsidiaries to purchase and maintain insurance, at its or their expense, to protectitself and any Person who is or was serving as a Manager, Officer or agent ofthe Company or is or was serving at the request of the Company as a manager,director, officer, partner, venturer, proprietor, trustee, employee, agent orsimilar functionary of another foreign or domestic limited ability company,corporation, partnership, joint venture, sole proprietorship, trust, employeebenefit plan or other enterprise against any expense, liability or loss,whether or not the Company would have the power to indemnify such Personagainst such expense, liability or loss under this Article VII.

 

**Section 7.8****            SavingsClause**.  If this Article VIIor any portion hereof shall be invalidated on any ground by any court ofcompetent jurisdiction, then the Company shall nevertheless indemnify and holdharmless each Manager, Officer or any other Person indemnified pursuant to thisArticle VII as to costs, charges and expenses (including attorneys’fees), judgments, fines and amounts paid in settlement with respect to anyaction, suit or proceeding, whether civil, criminal, administrative orinvestigative to the full extent permitted by any applicable portion of this ArticleVII that shall not have been invalidated and to the fullest extentpermitted by applicable law.

 

# **ARTICLE VIII**

# ** **

# **BOOKS, RECORDS, ACCOUNTING AND REPORTS**

# ** **

**Section 8.1****            Recordsand Accounting**.  The Companyshall keep, or cause to be kept, appropriate books and records with respect tothe Company’s business, including all books and records necessary to provideany information, lists, and copies of documents required to be providedpursuant to Section 8.3 or pursuant to applicable laws.  The unit ledger for the Company and any unitcertificates held by the Company, and the stock or unit ledgers and equity certificatesfor each of its Subsidiaries, shall be maintained at the Chicago offices ofKirkland & Ellis LLP, or at such other place as directed by the holders ofthe Required Interest in writing from time to time hereafter.  All matters concerning (i) the determinationof the relative amount of allocations and distributions among the Unitholderspursuant to Articles III and IV and (ii) accounting proceduresand determinations, and other determinations not specifically and 

 

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expressly provided for by theterms of this Agreement, shall be determined by the Board, whose determinationshall be final and conclusive as to all of the Unitholders absent manifestclerical error.

 

**Section 8.2****            FiscalYear**.  The fiscal year (the “FiscalYear”) of the Company shall constitute the 12-month period ending onDecember 31 of each calendar year, or such other annual accounting period asmay be established by the Board.

 

**Section 8.3****            TaxInformation**.  The Company shalluse commercially reasonable efforts to deliver or cause to be delivered, within75 days after the end of each Fiscal Year, to each Person who was a Unitholderat any time during such Fiscal Year all information regarding the Companynecessary for the preparation of such Person’s United States federal and stateincome tax returns.

 

**Section 8.4****            Transmissionof Communications**.  Each Personthat owns or controls Units on behalf of, or for the benefit of, another Personor Persons shall be responsible for conveying any report, notice, or othercommunication received from the Board to such other Person or Persons.

 

**Section 8.5****            CompanyFunds**.  The Board and Officersmay not commingle the Company’s funds with the funds of any Unitholder orManager.

 

# **ARTICLE IX**

# ** **

# **TAXES**

# ** **

**Section 9.1****            TaxReturns**.  The Company shallprepare and file all necessary federal and state income tax returns, includingmaking the elections described in Section 9.2.  Each Unitholder shall furnish to the Companyall pertinent information in its possession relating to the Company’soperations that is necessary to enable the Company’s income tax returns to beprepared and filed.

 

**Section 9.2****            TaxElections**.  The Board shall beentitled to cause the Company to make any Tax election the Board may deemappropriate and in the best interests of the Unitholders.

 

**Section 9.3****            TaxMatters Partner**. MDCP-A shall be the “tax matters partner” of theCompany pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Partner”).  The Tax Matters Partner shall take such actionas may be necessary to cause each other Unitholder to become a “notice partner”within the meaning of Section 6223 of the Code. The Tax Matters Partner shall inform each other Unitholder of allsignificant matters that may come to its attention in its capacity as TaxMatters Partner by giving notice thereof on or before the fifth business dayafter becoming aware thereof and, within that time, shall forward to each otherUnitholder copies of all significant written communications he may receive inthat capacity.  The Tax Matters Partnermay not take any action contemplated by Sections 6222 through 6232 of the Codewithout the consent of the Board, but this sentence does not authorize the TaxMatters Partner (or any Manager) to take any action left to the determinationof an individual Unitholder under Sections 6222 through 6232 of the Code.

 

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**Section 9.4****            CodeSection 83 Safe Harbor Election**.

 

### (a)           By executing thisAgreement, each Unitholder authorizes and directs the Company to elect to havethe “Safe Harbor” described in the proposed Revenue Procedure set forth inInternal Revenue Service Notice 2005 43 (the “Notice”) apply to anyinterest in the Company transferred to a service provider by the Company on orafter the effective date of such Revenue Procedure in connection with servicesprovided to the Company.  For purposes ofmaking such Safe Harbor election, the Tax Matters Partner is hereby designatedas the “partner who has responsibility for federal income tax reporting” by theCompany and, accordingly, execution of such Safe Harbor election by the TaxMatters Partner constitutes execution of a “Safe Harbor Election” in accordancewith Section 3.03(1) of the Notice.  TheCompany and each Unitholder hereby agrees to comply with all requirements ofthe Safe Harbor described in the Notice, including, without limitation, therequirement that each Unitholder shall prepare and file all federal income taxreturns reporting the income tax effects of each interest in the Company issuedby the Company covered by the Safe Harbor in a manner consistent with therequirements of the Notice.

###  

### (b)           The Company and anyUnitholder may pursue any and all rights and remedies it may have to enforcethe obligations of the Company and the Unitholders (as applicable) under Section9.4(a), including, without limitation, seeking specific performance and/orimmediate injunctive or other equitable relief from any court of competentjurisdiction (without the necessity of showing actual money damages, or postingany bond or other security) in order to enforce or prevent any violation of theprovisions of Section 9.4(a).  AUnitholder’s obligations to comply with the requirements of this Section 9.4shall survive such Unitholder’s ceasing to be a Unitholder of the Companyand/or the termination, dissolution, liquidation and winding up of the Company,and, for purposes of this Section 9.4, the Company shall be treated ascontinuing in existence.

###  

### (c)           Each Unitholderauthorizes the Tax Matters Partner to amend Sections 9.4(a) and 9.4(b)to the extent necessary to achieve substantially the same tax treatment withrespect to any interest in the Company transferred to a service provider by theCompany in connection with services provided to the Company as set forth inSection 4 of the Notice (e.g., to reflect changes from the rules set forth inthe Notice in subsequent Internal Revenue Service guidance), providedthat such amendment is not materially adverse to such Unitholder (as comparedwith the after tax consequences that would result if the provisions of theNotice applied to all interests in the Company transferred to a serviceprovider by the Company in connection with services provided to the Company).

###  

# **ARTICLE X**

# ** **

# **TRANSFER OF COMPANY INTERESTS**

# ** **

**Section 10.1****         Transfersby Unitholders**.

 

### (a)           No Unitholder shallTransfer any interest in any Units except in compliance with this Article X.  Except for Transfers made in compliance withthe Securityholders Agreement and, with respect to a Unitholder subject to aManagement Unit 

 

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### Purchase Agreement, such Management UnitPurchase Agreement, no Unitholder shall Transfer, or offer or agree toTransfer, all or any part of any interest of such Person’s Units without theprior written consent of the Board. With the Board’s consent, a Unitholder mayTransfer all or any part of such Person’s Units, subject to compliance withthis Agreement (including, without limitation, Section 10.1(b)) andany other agreement binding upon such Unitholder which restricts the Transferof Units (including, without limitation, the Securityholders Agreement and theManagement Unit Purchase Agreements).

###  

### (b)           Each transferee ofUnits or other interest in the Company shall, as a condition precedent to suchTransfer, execute a counterpart to this Agreement pursuant to which suchtransferee shall agree to be bound by the provisions of this Agreement.

###  

**Section 10.2****         Effectof Assignment**.

 

### (a)           Any Unitholder whoshall assign any Units or other interest in the Company shall cease to be aUnitholder of the Company with respect to such Units or other interest andshall no longer have any rights or privileges of a Unitholder with respect tosuch Units or other interest.

###  

### (b)           Any Person who acquiresin any manner whatsoever any Units or other interest in the Company,irrespective of whether such Person has accepted and adopted in writing theterms and provisions of this Agreement, shall be deemed by the acceptance ofthe benefits of the acquisition thereof to have agreed to be subject to andbound by all of the terms and conditions of this Agreement that any predecessorin such Units or other interest in the Company of such Person was subject to orby which such predecessor was bound.

###  

**Section 10.3****         Restrictionon Transfer**.  Anything in thisAgreement to the contrary notwithstanding, no Unitholder (other than theInvestors) shall Transfer a Unit (including any Transfer of an interest inProfits, Losses or Distributions) if the Transfer would (i) unless theBoard otherwise consents (such consent not to be unreasonably withheld), causethe aggregate Transfer of Unitholder interests for a given Company taxable yearto exceed 2% of total Unitholder interests (excluding for this purpose, anyTransfer by a Unitholder described in Treasury Reg. §1.7704-1(e), (f) or(g)), (ii) cause the Company to be treated as a publicly tradedpartnership within the meaning of Code §7704 and TreasuryReg. §1.7704-1, or (iii) create a significant risk of causing theresults contemplated by either clause (i) or (ii) above, inthe Board’s sole discretion.  AnyTransfer that violates this Section 10.3 shall be void and the purportedbuyer, assignee, transferee, pledgee, mortgagee, or other recipient shall haveno interest in or rights to Company assets, Profits, Losses or Distributions,and neither the Board nor the Company shall be required to recognize any suchinterest or rights.  If the Board at anytime determines that a Transfer or foreseeable future Transfers of Units wouldor may reasonably be expected to cause the Company or a Subsidiary thereof tobecome required to register or file periodic reports with the United StatesSecurities and Exchange Commission or any other securities regulatory body ororganization in a non-United States jurisdiction, the Board may adopt suchadditional reasonable rules and restrictions, which shall be binding on theUnitholders, regarding Transfers of Units in order to avoid such registrationor reporting requirements.

 

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**Section 10.4****         TransferFees and Expenses**.  Thetransferor and transferee of any Units or other interest in the Company shallbe jointly and severally obligated to reimburse the Company for all reasonableexpenses (including attorneys’ fees and expenses) of any Transfer or proposedTransfer, whether or not consummated.

 

**Section 10.5****         VoidTransfers**.  Any Transfer by anyUnitholder of any Units or other interest in the Company in contravention ofthis Agreement (including, without limitation, the failure of the transferee toexecute a counterpart in accordance with Section 10.1(b)) or which wouldcause the Company to not be treated as a partnership for U.S. federal incometax purposes shall be void and ineffectual and shall not bind or be recognizedby the Company or any other party.  Nopurported assignee shall have any right to any profits, losses or distributionsof the Company.

 

# **ARTICLE XI**

# ** **

# **ADMISSION OF UNITHOLDERS**

# ** **

**Section 11.1****         SubstitutedUnitholders**.  In connection withthe transfer of Units permitted under the terms of this Agreement and the otherTransaction Documents, the transferee shall become a Substituted Unitholder onthe effective date of such Transfer, which effective date shall not be earlierthan the date of compliance with or waiver of the conditions to such Transfer(unless one of the conditions to such Transfer is that Board or Unitholderconsent is required for the admission of such transferee, in which case suchconsent must first be obtained), including executing counterparts of, andbecome a party to, this Agreement and the other Transaction Documents to whichthe transferor Unitholder was a party, and such admission shall be shown on thebooks and records of the Company.

 

**Section 11.2****         AdditionalUnitholders**.  A Person may beadmitted to the Company as an Additional Unitholder only as contemplated under,and in compliance with, the terms of this Agreement, including furnishing tothe Board (a) a letter of acceptance, in form satisfactory to the Board, of allthe terms and conditions of this Agreement, including the power of attorneygranted in Section 15.1, and (b) such other documents or instruments asmay be necessary or appropriate to effect such Person’s admission as aUnitholder (including counterparts or joinders to all applicable TransactionDocuments).  Such admission shall becomeeffective on the date on which the Board determines that such conditions havebeen satisfied and when any such admission is shown on the books and records ofthe Company.

 

**Section 11.3****         DerivativeSecurities**.  Except as set forthin this Agreement, no Person that holds securities (including  options, warrants, or rights) exercisable,exchangeable, or convertible into Units shall have any rights with respect tosuch Units until such Person is actually issued Units upon such exercise,exchange, or conversion and, if such Person is not then a Unitholder, isadmitted as a Unitholder pursuant to Section 11.2.

 

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# **ARTICLE XII**

# ** **

# **WITHDRAWAL AND RESIGNATION OF UNITHOLDERS**

# ** **

**Section 12.1****         Withdrawaland Resignation of Unitholders**. No Unitholder shall have the power or right to withdraw or otherwiseresign or be expelled from the Company prior to the dissolution and winding upof the Company pursuant to Article XII, except as otherwise expresslypermitted by this Agreement or any of the other agreements contemplatedhereby.  Notwithstanding that payment onaccount of a withdrawal may be made after the effective time of such withdrawal,any completely withdrawing Unitholder will not be considered a Unitholder forany purpose after the effective time of such complete withdrawal, and, in thecase of a partial withdrawal, such Unitholder’s Capital Account (andcorresponding voting and other rights) shall be reduced for all other purposeshereunder upon the effective time of such partial withdrawal.

 

**Section 12.2****         Withdrawalof a Unitholder**.  No Unitholdershall have the power or right to withdraw or otherwise resign from the Companyexcept, simultaneous with the Transfer of all of a Unitholder’s Units in aTransfer permitted by this Agreement and, if such Transfer is to a person orentity that is not a Unitholder, the admission of such person or entity as aUnitholder pursuant to Section 11.1.

 

# **ARTICLE XIII**

# ** **

# **DISSOLUTION AND LIQUIDATION**

# ** **

**Section 13.1****         Dissolution**.  The Company shall not be dissolved by theadmission of Additional Unitholders or Substituted Unitholders, or by thedeath, retirement, expulsion, bankruptcy or dissolution of a Unitholder.  The Company shall dissolve, and its affairsshall be wound up upon the first to occur of the following:

 

### (a)           at any time by theBoard with the prior written consent of MDP; or

###  

### (b)           the entry of a decreeof judicial dissolution of the Company under Section 35-5 of the Delaware Actor an administrative dissolution under Section 18-802 of the Delaware Act.

###  

Except asotherwise set forth in this Article XIII, the Company is intended tohave perpetual existence.  The death,retirement, resignation, expulsion, bankruptcy or dissolution of a Unitholderor the occurrence of any other event that terminates the continued membershipof a Unitholder in the Company shall not cause a dissolution of the Company andthe Company shall continue in existence subject to the terms and conditions ofthis Agreement.

 

**Section 13.2****         Liquidationand Termination**.  On dissolutionof the Company, the Board shall act as liquidator or may appoint one or morerepresentatives or Unitholders as liquidator. The liquidators shall proceed diligently to wind up the affairs of theCompany, sell all or any portion of the Company assets for cash or cashequivalents as they deem appropriate, and make final distributions as providedherein and in the Delaware Act.  Thecosts of liquidation shall be borne as an expense of the Company.  Until final distribution, the liquidatorsshall continue to operate the Company properties with all of the power andauthority of the Board.  

 

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The liquidators shall pay, satisfy,or discharge from the Company’s funds all of the debts, liabilities, andobligations of the Company (including all expenses incurred in liquidation) orotherwise make adequate provision for payment and discharge thereof (includingthe establishment of a cash fund for contingent liabilities in such amount andfor such term as the liquidators may reasonably determine) and shall promptlydistribute the remaining assets to the holders of Units in accordance with Section4.1(a).  Any non-cash assets will firstbe written up or down to their Fair Market Value, thus creating Profit or Loss(if any), which shall be allocated in accordance with Sections 4.2 and 4.3.  In making such distributions, the liquidatorsshall allocate each type of asset (i.e., cash, cash equivalents,securities, etc.) among the Unitholders ratably based upon the aggregateamounts to be distributed with respect to the Units held by each suchholder.  Any such distributions in kindshall be subject to (x) such conditions relating to the disposition andmanagement of such assets as the liquidators deem reasonable and equitable and(y) the terms and conditions of any agreement governing such assets (or theoperation thereof or the holders thereof) at such time.

 

Thedistribution of cash and/or property to a Unitholder in accordance with theprovisions of this Section 13.2 constitutes a complete return to theUnitholder of its Capital Contributions and a complete distribution to theUnitholder of its interest in the Company and all the Company’s property andconstitutes a compromise to which all Unitholders have consented within themeaning of the Delaware Act.  To theextent that a Unitholder returns funds to the Company, it has no claim againstany other Unitholder for those funds.

 

**Section 13.3****         Cancellationof Certificate**.  On completion ofthe distribution of assets of the Company as provided herein, the Company shallbe terminated (and the Company shall not be terminated prior to such time), andthe Board (or such other Person or Persons as the Delaware Act may require orpermit) shall file a certificate of cancellation with the Secretary of State ofDelaware, cancel any other filings made pursuant to this Agreement that are orshould be canceled, and take such other actions as may be necessary toterminate the Company.  The Company shallbe deemed to continue in existence for all purposes of this Agreement until itis terminated pursuant to this Section 13.3.

 

**Section 13.4****         ReasonableTime for Winding Up**.  Areasonable time shall be allowed for the orderly winding up of the business andaffairs of the Company and the liquidation of its assets pursuant to Section13.2 in order to minimize any losses otherwise attendant upon such windingup.

 

**Section 13.5****         Returnof Capital**.  The liquidatorsshall not be personally liable for the return of Capital Contributions or anyportion thereof to the Unitholders (it being understood that any such returnshall be made solely from the Company’s assets).

 

**Section 13.6****         ReservesAgainst Distributions**.  The Boardshall have the right to withhold from Distributions payable to any Unitholderunder this Agreement amounts sufficient to pay and discharge any reasonablyanticipated contingent liabilities of the Company.  Any amounts remaining after payment anddischarge of any such contingent liabilities of the Company will be paid to theUnitholders from whom the Distributions were withheld.

 

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# **ARTICLE XIV**

# ** **

# **VALUATION**

# ** **

**Section 14.1****         FairMarket Value**.

 

### (a)           The “Fair Market Value”of any assets or Units to be valued under this Agreement shall be determined inaccordance with this Article XIV.

###  

### (b)           The Fair Market Valueof any asset constituting cash or cash equivalents shall be equal to the amountof such cash or cash equivalents.

###  

### (c)           The Fair Market Valueof any asset constituting publicly traded securities shall be the average, overa period of 21 days consisting of the date of valuation and the 20 consecutivebusiness days prior to that date, of the average of the closing prices of thesales of such securities on the primary securities exchange on which suchsecurities may at that time be listed, or, if there have been no sales on suchexchange on any day, the average of the highest bid and lowest asked prices onsuch exchanges at the end of such day, or, if on any day such securities arenot so listed, the average of the representative bid and asked prices quoted inthe Nasdaq System as of 4:00 P.M., New York time, or, if on any day suchsecurities are not quoted in the Nasdaq System, the average of the highest bidand lowest asked prices on such day in the domestic over the counter market asreported by the National Quotation Bureau Incorporated, or any similarsuccessor organization.

###  

### (d)           The Fair Market Valueof any assets other than cash, cash equivalents, or publicly traded securitiesshall be the fair value of such assets, as determined in good faith by theBoard (or, if pursuant to Section 13.2, the liquidators), whichdetermination shall take into account any factors that they deem relevant,including, without limitation, the application of the priority of distributionsdescribed in Section 4.1(a) hereof.

###  

# **ARTICLE XV**

# ** **

# **GENERAL PROVISIONS**

# ** **

**Section 15.1****         Powerof Attorney**.

 

### (a)           Each Unitholder herebyconstitutes and appoints each member of the Board and the liquidators, withfull power of substitution, as his true and lawful agent and attorney-in-fact,with full power and authority in his or its name, place and stead, to execute,swear to, acknowledge, deliver, file, and record in the appropriate publicoffices (i) this Agreement, all certificates, and other instruments and allamendments (in the manner set forth herein) thereof in accordance with theterms hereof which the Board deems appropriate or necessary to form, qualify,or continue the qualification of, the Company as a limited liability company inthe State of Delaware and in all other jurisdictions in which the Company mayconduct business or own property; (ii) all instruments which the Board deemsappropriate or necessary to reflect any amendment, change, modification, orrestatement of this Agreement in accordance with its terms; (iii) allconveyances and other instruments or documents which the Board deemsappropriate or necessary to reflect the dissolution and liquidation of theCompany 

 

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### pursuant to the terms of this Agreement,including a certificate of cancellation; and (iv) all instruments relating tothe admission, withdrawal, or substitution of any Unitholder pursuant toArticle XI and XII.

###  

### (b)           The foregoing power ofattorney is irrevocable and coupled with an interest, and shall survive thedeath, disability, incapacity, dissolution, bankruptcy, insolvency, ortermination of any Unitholder and the Transfer of all or any portion of his orits Units and shall extend to such Unitholder’s heirs, successors, assigns, andpersonal representatives.

###  

**Section 15.2****         Amendments**.  This Agreement may be amended from time totime as set forth elsewhere in this Agreement and this Agreement may be amendedfrom time to time by a written consent of the holders of the Required Interest;provided that no amendment pursuant to this Section 15.2 thatwould alter or change the powers, preferences, or special rights hereunder of aclass of Units or group of Unitholders (as the case may be) so as to affectthem adversely in a manner adversely different than any other class of Units orgroup of Unitholders (as the case may be) shall be effective against theholders of such class of Units or group of Unitholders (as the case may be)without the prior written consent of the holders of at least a majority of theoutstanding Units of such class of Units or group of Unitholders (as the casemay be); providedfurther that no amendment pursuant to this Section15.2 that would alter or change adversely the special rights hereunder of aUnitholder or group of Unitholders (as the case may be) specifically grantedsuch rights by name hereunder shall be effective against such Unitholder orgroup of Unitholders (as the case may be) without that Unitholder’s (or amajority of that group of Unitholders’) prior written consent; providedfurtherthat the amendment or modification of the Unit Ownership Ledger for the purposeof adding an Additional Unitholder or a Substituted Unitholder or deleting aformer Unitholder or reflecting a transfer of Units, in each case, inaccordance with this Agreement, shall not be deemed to be an amendment of thisAgreement requiring the consent of any Unitholder.

 

**Section 15.3****         Titleto the Company’s Assets**.  TheCompany’s assets shall be deemed to be owned by the Company as an entity, andno Unitholder, individually or collectively, shall have any ownership interestin such assets of the Company or any portion thereof.  Legal title to any or all assets of theCompany may be held in the name of the Company or one or more nominees, as theBoard may determine.  The Board herebydeclares and warrants that any assets of the Company for which legal title isheld in its name or the name of any nominee shall be held in trust by the Boardor such nominee for the use and benefit of the Company in accordance with theprovisions of this Agreement.  All assetsof the Company shall be recorded as the property of the Company on its booksand records, irrespective of the name in which legal title to such assets isheld.

 

**Section 15.4****         Remedies**.  Each Unitholder and the Company shall haveall rights and remedies set forth in this Agreement and all rights and remedieswhich such Person has been granted at any time under any other agreement orcontract and all of the rights which such Person has under any law.  Any Person having any rights under anyprovision of this Agreement or any other agreements contemplated hereby shallbe entitled to enforce such rights specifically (without posting a bond orother security), to recover damages by reason of any breach of any provision ofthis Agreement and to exercise all other rights granted by law.

 

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**Section 15.5****         Successorsand Assigns**.  All covenants andagreements contained in this Agreement shall bind and inure to the benefit ofthe parties hereto and their respective heirs, executors, administrators,successors, legal representatives, and permitted assigns, whether so expressedor not.

 

**Section 15.6****         Severability**.  Whenever possible, each provision of thisAgreement will be interpreted in such manner as to be effective and valid underapplicable 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 inany jurisdiction, such invalidity, illegality, or unenforceability will notaffect any other provision or the effectiveness or validity of any provision inany other jurisdiction, and this Agreement will be reformed, construed, andenforced in such jurisdiction as if such invalid, illegal, or unenforceableprovision had never been contained herein.

 

**Section 15.7****         Changein Business Form**.  EachUnitholder hereby irrevocably delegates and cedes to the Board the soleauthority and power to, in its sole discretion, in preparation for orcontemplation of an anticipated Qualified Public Offering (as defined in theSecurityholders Agreement) (i) convert the Company into a corporation (by aconversion pursuant to Section 18-216 of the Delaware Act or other conversionstatute, merger or otherwise) or another form of business entity at any time,in which event the terms and conditions contained herein (including the termsand conditions relating to the Units and Capital Accounts) shall be, as closelyas possible, adopted by the new entity or (ii) notwithstanding Section 2.9or anything else in this Agreement to the contrary, make an election to havethe Company be treated as a corporation for federal income tax purposes and, ifapplicable, state income or franchise tax purposes, rather than as apartnership (each, a “Conversion”). Without limiting the generality of the foregoing, it is anticipated thata Conversion would occur prior to, or in connection with, a Qualified PublicOffering (as defined in the Securityholders Agreement).  In connection with any Conversion, the Boardmay cause a recapitalization, reorganization, incorporation and/or exchange ofthe Units into securities which reflect and are substantially consistent withthe Units and Capital Accounts as in effect immediately prior to suchtransaction and shall provide for the Unitholders to have the benefits andburdens of agreements that are substantially consistent with the SecurityholdersAgreement and other equity agreements. No Unitholder shall have the right or power to veto, vote for oragainst, amend, modify or delay any such Conversion.  Further, each Unitholder shall execute anddeliver any documents and instruments and perform any additional acts that maybe necessary or appropriate, as determined by the Board, to effectuate andperform any such Conversion (including, without limitation, in the case of anyManagement Unitholder, executing an agreement with the successor providing forthe continued vesting of, and repurchase rights respecting, any equitysecurities issued in respect of Unvested Common Units in form and substancesimilar to the provisions and restrictions with respect to vesting andrepurchase rights set forth in any Management Unit Purchase Agreement or optiongrant agreement, as the case may be).

 

**Section 15.8****         Opt-into Article 8 of the Uniform Commercial Code**.  The Unitholders hereby agree that the Unitsshall be securities governed by Article 8 of the Uniform Commercial Code of theState of Delaware (and the Uniform Commercial Code of any other applicablejurisdiction).

 

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**Section 15.9****         Noticeto Unitholder of Provisions**.  Byexecuting this Agreement, each Unitholder acknowledges that it has actualnotice of (a) all of the provisions hereof (including the restrictions on thetransfer set forth herein), and (b) all of the provisions of the Certificate.

 

**Section 15.10****       Counterparts**.  This Agreement may be executed in multiplecounterparts with the same effect as if all signing parties had signed the samedocument.  All counterparts shall beconstrued together and constitute the same instrument.

 

**Section 15.11****       Consentto Jurisdiction**.  Each Unitholderirrevocably submits to the nonexclusive jurisdiction of the United StatesDistrict Court for the State of Delaware and the state courts of the State ofDelaware for the purposes of any suit, action or other proceeding arising outof this Agreement or any transaction contemplated hereby.  Each Unitholder further agrees that serviceof any process, summons, notice or document by United States certified orregistered mail to such Unitholder’s respective address set forth in theCompany’s books and records or such other address or to the attention of suchother person as the recipient party has specified by prior written notice tothe sending party shall be effective service of process in any action, suit orproceeding in Delaware with respect to any matters to which it has submitted tojurisdiction as set forth above in the immediately preceding sentence.  Each Unitholder irrevocably andunconditionally waives any objection to the laying of venue of any action, suitor proceeding arising out of this Agreement or the transactions contemplatedhereby in the United States District Court for the State of Delaware or thestate courts of the State of Delaware and hereby irrevocably andunconditionally waives and agrees not to plead or claim in any such court thatany such action, suit or proceeding brought in such court has been brought inan inconvenient forum.

 

**Section 15.12****       DescriptiveHeadings; Interpretation**.  Thedescriptive headings of this Agreement are inserted for convenience only and donot constitute a substantive part of this Agreement.  Whenever required by the context, any pronounused in this Agreement shall include the corresponding masculine, feminine, orneuter forms, and the singular form of nouns, pronouns, and verbs shall includethe plural and vice versa.  The use ofthe word “including” in this Agreement shall be by way of example rather thanby limitation.  Reference to anyagreement, document, or instrument means such agreement, document, orinstrument as amended or otherwise modified from time to time in accordancewith the terms thereof, and, if applicable, hereof.  Wherever required by the context, referencesto a Fiscal Year shall refer to a portion thereof.  The use of the words “or,” “either,” and “any”shall not be exclusive.  The partieshereto have participated jointly in the negotiation and drafting of thisAgreement.  In the event an ambiguity orquestion of intent or interpretation arises, this Agreement shall be construedas if drafted jointly by the parties hereto, and no presumption or burden ofproof shall arise favoring or disfavoring any party by virtue of the authorshipof any of the provisions of this Agreement. Wherever a conflict exists between this Agreement and any otheragreement, this Agreement shall control but solely to the extent of suchconflict.

 

**Section 15.13****       ApplicableLaw**.  This Agreement shall begoverned by, and construed in accordance with, the laws of the State ofDelaware, without giving effect to any choice of law or conflict of law rulesor provisions (whether of the State of Delaware or any other jurisdiction) thatwould cause the application of the laws of any jurisdiction other than theState of Delaware.

 

42

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**Section 15.14****       MutualWaiver of Jury Trial**.  Becausedisputes arising in connection with complex transactions are most quickly andeconomically resolved by an experienced and expert person and the parties wishapplicable state and federal laws to apply (rather than arbitration rules), theparties desire that their disputes be resolved by a judge applying suchapplicable laws.  Therefore, to achievethe best combination of the benefits of the judicial system and of arbitration,each party to this agreement (including the Company) hereby waives all rightsto trial by jury in any action, suit, or proceeding brought to resolve anydispute between or among any of the parties hereto, whether arising incontract, tort, or otherwise, arising out of, connected with, related orincidental to this agreement, the transactions contemplated hereby and/or therelationships established among the parties hereunder.

 

**Section 15.15****       Addressesand Notices**.  All notices,demands, or other communications to be given or delivered under or by reason ofthe provisions of this Agreement shall be in writing and shall be deemed tohave been given or made (i) when delivered personally to the recipient, (ii)when telecopied to the recipient (with hard copy sent to the recipient byreputable overnight courier service (charges prepaid) that same day) iftelecopied before 5:00 p.m. Chicago, Illinois time on a business day, andotherwise on the next business day after being telecopied, (iii) one businessday after being sent to the recipient by reputable overnight courier service(charges prepaid), or (iv) when received via electronic mail by the recipient(with hard copy sent to the recipient by reputable overnight courier service(charges prepaid) that same day) if received via electronic mail before 5:00p.m. Chicago, Illinois time on a business day, and otherwise on the nextbusiness day after such receipt.  Suchnotices, demands, and other communications shall be sent to the Company at thefollowing address and to any Unitholders at the address for such Unitholder setforth in the Company’s books and records, or to such other address or to theattention of such other person as the recipient party has specified by priorwritten notice to the sending party.

 

VarietalDistribution Holdings, LLC

c/o VWRInternational, Inc.

1310 GoshenParkway

PO Box 2656

West Chester,Pennsylvania 19380

Facsimile:  (610) 701-9896

Telephone:  (610) 719-7072

Electronicmail: George_VanKula@vwr.com

Attention:  George Van Kula, Esq.

 

with copies to (which shall not constitute notice):

 

MadisonDearborn Capital Partners

Three FirstNational Plaza

38th Floor

Chicago,Illinois  60602

Facsimile:  (312) 895-1056

Telephone:  (312) 895-1000

Electronicmail:  mtresnowski@MDCP.com

Attention:  General Counsel

 

43

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and

 

Kirkland &Ellis LLP

200 EastRandolph Drive

Chicago, IL60601

Facsimile:  (312) 861-2200

Telephone:(312) 861-2000

Electronicmail:  sperl@kirkland.com;mfennell@kirkland.com

Attention:  Sanford E. Perl, P.C.

    Mark A. Fennell

 

**Section 15.16****       Creditors**.  None of the provisions of this Agreementshall be for the benefit of or enforceable by any creditors of the Company orany of its Affiliates, and no creditor who makes a loan to the Company or anyof its Affiliates may have or acquire at any time as a result of making the loanany direct or indirect interest in the Company’s Profits, Losses,Distributions, capital, or property other than as a secured creditor.

 

**Section 15.17****       Waiver**.  No failure by any party to insist upon thestrict performance of any covenant, duty, agreement, or condition of thisAgreement or to exercise any right or remedy consequent upon a breach thereofshall constitute a waiver of any such breach or any other covenant, duty,agreement, or condition.  Notwithstandingthe other provisions of this Agreement, Section 18-305(a) of the Delaware Actshall not apply to the Company and no Unitholder shall have any rightsthereunder.

 

**Section 15.18****       FurtherAction**.  The parties shallexecute and deliver all documents, provide all information, and take or refrainfrom taking such actions as may be necessary or appropriate to achieve thepurposes of this Agreement.

 

**Section 15.19****       EntireAgreement**.  This Agreement, thosedocuments expressly referred to herein, the other documents of even dateherewith, and the other Transaction Documents embody the complete agreement andunderstanding among the parties and supersede and preempt any priorunderstandings, agreements, or representations by or among the parties, writtenor oral, which may have related to the subject matter hereof in any way(including, without limitation, the Limited Liability Company Agreement of theCompany, dated April 30, 2007, as amended).

 

**Section 15.20****       ElectronicDelivery**.  This Agreement, theagreements referred to herein, and each other agreement or instrument enteredinto in connection herewith or therewith or contemplated hereby or thereby, andany amendments hereto or thereto, to the extent signed and delivered by meansof a photographic, photostatic, facsimile or similar reproduction of suchsigned writing using a facsimile machine or electronic mail shall be treated inall manner and respects as an original agreement or instrument and shall beconsidered to have the same binding legal effect as if it were the originalsigned version thereof delivered in person. At the request of any party hereto or to any such agreement orinstrument, each other party hereto or thereto shall reexecute original formsthereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise theuse of a facsimile machine or electronic mail to 

 

44

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deliver a signature or the factthat any signature or agreement or instrument was transmitted or communicatedthrough the use of a facsimile machine or electronic mail as a defense to theformation or enforceability of a contract and each such party forever waivesany such defense.

 

**Section 15.21****       Survival**.Sections 4.5, 6.1, 7.1, 7.2 and 7.3 shallsurvive and continue in full force in accordance with its terms notwithstandingany termination of this Agreement or the dissolution of the Company.

 

*          *          *          *          *

 

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IN WITNESSWHEREOF, the undersigned have executed or caused to be executed on their behalfthis Limited Liability Company Agreement as of the date first above written.

 
| ** ** | **VARIETAL DISTRIBUTION HOLDINGS, LLC**                     |
|------------|-------------------------------------------------------------|
| ** ** | ** **                                                  |
|       | By:                                                         |   |   |
|       | Its:                                                        |
|       |                                                        |
|       |                                                        |
| ** ** | **MADISON DEARBORN CAPITAL PARTNERS   V-A, L.P.**           |
| ** ** | ** **                                                  |
|       | By: Madison  Dearborn Partners V-A&C, L.P.              |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By: Madison  Dearborn Partners, LLC                         |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By:                                                         |   |   |
|       | Its:  Managing Director                                     |
|       |                                                        |
|       |                                                        |
| ** ** | **MADISON DEARBORN CAPITAL PARTNERS   V-C, L.P.**           |
| ** ** | ** **                                                  |
|       | By: Madison  Dearborn Partners V-A&C, L.P.              |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By: Madison  Dearborn Partners, LLC                         |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By:                                                         |   |   |
|       | Its:  Managing Director                                     |
|       |                                                        |
|       |                                                        |
| ** ** | **MADISON DEARBORN CAPITAL PARTNERS V   EXECUTIVE-A, L.P.** |
| ** ** | ** **                                                  |
|       | By: Madison  Dearborn Partners V-A&C, L.P.              |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By: Madison  Dearborn Partners, LLC                         |
|       | Its: General  Partner                                       |
|       |                                                        |
|       | By:                                                         |   |   |
|       | Its:  Managing Director                                     |

 

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| ** ** | **MDCP CO-INVESTORS (VARIETAL), L.P.**         |
|------------|------------------------------------------------|
| ** ** | ** **                                     |
|       | By: Madison  Dearborn Partners V-A&C, L.P. |
|       | Its: General  Partner                          |
|       |                                           |
|       | By: Madison  Dearborn Partners, LLC            |
|       | Its: General  Partner                          |
|       |                                           |
|       | By:                                            |   |   |
|       | Its:  Managing Director                        |
|       |                                           |
|       |                                           |
| ** ** | **MDCP CO-INVESTORS (VARIETAL-2), L.P.**       |
| ** ** | ** **                                     |
|       | By: Madison  Dearborn Partners V-A&C, L.P. |
|       | Its: General  Partner                          |
|       |                                           |
|       | By: Madison  Dearborn Partners, LLC            |
|       | Its: General  Partner                          |
|       |                                           |
|       | By:                                            |   |   |
|       | Its:  Managing Director                        |

 

*[Continuation of Signature Pages to Limited Liability Company Agreementof Varietal Distribution Holdings, LLC]*

 

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