MAY IN ITS DISCRETION ISSUE
CERTIFICATES TO THE HOLDERS REPRESENTING THE UNITS HELD BY EACH HOLDER.
(F)
RESTRICTIVE LEGEND.
IN THE EVENT THAT CERTIFICATES REPRESENTING
THE UNITS ARE ISSUED, EACH CERTIFICATE OR INSTRUMENT SHALL BE IMPRINTED WITH A
LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:
THE UNITS REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
,
, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS ("STATE
ACTS") AND MAY
3
NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT
AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE ACTS OR AN EXEMPTION
THEREFROM.
THE TRANSFER OF THE UNITS REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO THE CONDITIONS SPECIFIED IN AN OPERATING AGREEMENT, DATED AS OF OCTOBER 29,
2004 AND EFFECTIVE AS OF SEPTEMBER 22, 2004, AS AMENDED AND MODIFIED FROM TIME
TO TIME, GOVERNING THE ISSUER (THE "COMPANY") AND BY AND AMONG CERTAIN
INVESTORS.
A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
2.2
Initial Units Issued as of the Date Hereof.
As of the date hereof
the Members listed on the attached Schedule of Members (the "Initial Members")
have acquired the number of Series A Common Units and Series B Common Units, and
have made Capital Contributions with respect thereto, as set forth opposite each
such Initial Member's name on the attached Schedule of Members.
2.3
Additional Units Issued after the Date Hereof.
(A)
ISSUANCES OF ADDITIONAL UNITS.
THE BOARD SHALL HAVE THE RIGHT TO
CAUSE THE COMPANY TO ISSUE OR SELL TO MEMBERS OR OTHER PERSONS: (I) ADDITIONAL
UNITS (INCLUDING OTHER CLASSES OR SERIES THEREOF HAVING DIFFERENT RIGHTS), (II)
OBLIGATIONS, EVIDENCES OF INDEBTEDNESS OR OTHER SECURITIES OR INTERESTS
CONVERTIBLE OR EXCHANGEABLE INTO UNITS, AND (III) WARRANTS, OPTIONS OR OTHER
RIGHTS TO PURCHASE OR OTHERWISE ACQUIRE UNITS.
(B)
FPH MANAGEMENT UNITS.
WITHOUT LIMITING THE GENERALITY OF SECTION
2.3(A), FROM TIME TO TIME AFTER THE DATE HEREOF, (I) IN THE EVENT THAT FPH
ISSUES ANY FPH SERIES B UNITS TO AN FPH MANAGEMENT MEMBER, THEN IN CONNECTION
WITH SUCH ISSUANCE THE COMPANY WILL ISSUE TO FPH AN EQUAL NUMBER OF SERIES B
COMMON UNITS; AND (II) IN THE EVENT THAT FPH ISSUES ANY FPH SERIES C UNITS TO AN
FPH MANAGEMENT MEMBER, THEN IN CONNECTION WITH SUCH ISSUANCE THE COMPANY WILL
ISSUE TO FPH AN EQUAL NUMBER OF SERIES C COMMON UNITS.
(C)
SERIES C COMMON UNITS.
IT IS PRESENTLY ANTICIPATED THAT, WHEN AND
AS DETERMINED BY THE BOARD PURSUANT TO SECTION 2.3(A) AND 2.3(B), THE SERIES C
COMMON UNITS WILL BE ISSUED TO FPH FOR NO CONSIDERATION AND WILL REPRESENT AN
INTEREST ONLY IN PROFITS AND APPRECIATION OF THE COMPANY AFTER THE DATE OF
ISSUANCE THEREOF.
TO THIS END, IN CONNECTION WITH ANY GRANT OF A SERIES C
COMMON UNIT, THE BOARD WILL DETERMINE THE EQUITY VALUE OF THE COMPANY
IMMEDIATELY PRIOR TO THE GRANT OF SUCH SERIES C COMMON UNIT.
IF SUCH EQUITY