Prior to an IPO. If it shall be determined that any benefit provided to the Executive or payment or distribution by or for the account of the Company to or for the benefit of the Executive, whether provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) prior to the completion of an IPO would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive with respect to such excise tax resulting from any action or inaction by the Company (such excise tax, together with any such interest and penalties, collectively, the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of the Excise Tax and all other income, employment, excise and other taxes that are imposed on the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the sum of (A) the Excise Tax imposed upon the Payments and (B) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income and the applicable marginal rate of federal income taxation for the calendar year in which the Executive’s Gross-Up Payment is to be made. Notwithstanding the foregoing provisions of this Section 10(a), if it shall be determined that the Executive would be entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed an amount equal to three hundred and ten percent (310%) of the Executive’s Base Amount, then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount; provided that such reduction shall only be made if such reduction results in a more favorable after-tax position for the Executive. If there is a reduction pursuant to this Section 10(a) of the Payments to be delivered to the Executive, such Payments shall be reduced to the extent necessary to avoid application of the excise tax in the following order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to the Executive, (iii) benefits valued as parachute payments, and (iv) acceleration of vesting of any equity awards.
Prior to an IPO. Upon the Board giving written notice to a Participant of the occurrence of a Control Event (the “Control Event Notice”):
Prior to an IPO. Prior to an IPO (if any), and subject to the Preferred Hurdle and the Catch-Up Amount, the Special Interest Member shall be entitled to receive an incentive allocation (the “Incentive Allocation”) equal to 15% of the aggregate Core Operating Profit calculated by reference to (i) the twelve preceding calendar quarters or (ii) if less than twelve calendar quarters, the period commencing upon the date of funding of the first drawdown following the Initial Closing Date and ending as of the end of the quarter for which the Incentive Allocation is being calculated (the “Pre-IPO Incentive Allocation Reference Period”). The Incentive Allocation for any quarter shall only be distributable to the Special Interest Member if Core Operating Profit CONFIDENTIAL TREATMENT REQUESTED PURSUANT TO 17 C.F.R. SECTION 200.83 for the Pre-IPO Incentive Allocation Reference Period which ends with such quarter exceeds a 6% annualized rate of return (whether or not distributed) for such Pre-IPO Incentive Allocation Reference Period on the aggregate amount of capital contributed by the Parent Company Members to the Parent Company (and not returned as a return of capital) through the end of such quarter (the “Preferred Hurdle”), in which case the Special Interest Member will be entitled to distributions of Incentive Allocation in respect of a quarter such that aggregate Incentive Allocation distributions for the applicable Pre-IPO Incentive Allocation Reference Period are equal to (i) the Catch-Up Amount plus (ii) 15% of the amount by which Core Operating Profit exceeds the sum of the Preferred Hurdle and the Catch-Up Amount.
Prior to an IPO not later than 45 days after the end of each fiscal quarter of each fiscal year of Borrower (commencing with the fiscal quarter ending June 30, 2019) and (2) on and after an IPO, within 45 days (or such longer period as may be permitted from time to time under the rules of the SEC) after the end of each fiscal quarter of each fiscal year of Borrower, (i) the unaudited consolidated balance sheet of Borrower and its Subsidiaries determined in accordance with GAAP as at the end of such quarter and the related unaudited consolidated statements of (x) income, (y) cash flows, and (z) cash balances for each Group Member, in each case, for such fiscal quarter and the portion of the fiscal year through the end of such fiscal quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments), and (ii) a management’s discussion and analysis; and
Prior to an IPO no later than 60 days after the end of each fiscal year of Borrower (commencing with the fiscal year ending on December 31, 2019), and (2) on and after an IPO, within a reasonable period after the same are publicly available by way of public filings, a detailed consolidated budget for the following fiscal year (which shall include a breakdown of such consolidated budget on a quarter to quarter basis) (including a projected consolidated balance sheet of Borrower and its Subsidiaries as of the end of each fiscal quarter of such fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any, of such budget and projections with respect to such fiscal year (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such Projections are based on reasonable estimates, information and assumptions and that such Responsible Officer has no reason to believe that such Projections are incorrect or misleading in any material respect; it being recognized by Lenders that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the Projections;
