Common use of The Conversion Clause in Contracts

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time and date as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”). References to the Company from and after the Conversion Effective Time shall mean Express. (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, and powers of the Company shall vest in Express, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of Express. (c) The Certificate of Incorporation and bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express ServiceSource in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time of the filing of the Certificate of Conversion (and date the Certificate of Conversion will specify that the Conversion shall be effective immediately upon its filing) as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”), which Conversion Effective Time shall occur at least two hours prior to the Effectiveness of the Registration Statement. References to the Company from and after the Conversion Effective Time shall mean ExpressServiceSource. It is acknowledged and agreed that the Conversion shall be conducted in accordance with Delaware Law and terms of that certain Limited Liability Company Agreement of the Company, dated as of July 29, 2009 (as amended or otherwise modified from time to time, the “Company LLC Agreement”). (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, and powers of the Company shall vest in ExpressServiceSource, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of ExpressServiceSource. For the avoidance of doubt, it is hereby acknowledged and agreed that the Conversion shall not limit any rights and obligations of the parties under that certain Registration and Information Rights Agreement, dated December 8, 2006, by and among the Company, GA, SSLLC and the other parties thereto. (c) The ServiceSource shall be initially governed by the Certificate of Incorporation and the bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express each case until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers directors of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express ServiceSource and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express ServiceSource and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all each outstanding Common Share of the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into one share of Common Stock of ServiceSource. Upon issuance pursuant to the number of Conversion, all shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached heretoServiceSource will be duly authorized, validly issued, fully paid and non-assessable. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express ServiceSource issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) Agreement shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.062.04, 4.075.03, 6.025.11, 6.04(a) 5.12, Article 7, Article 10, 11.02, 15.01, 15.03, 15.04, 15.05, 15.06, 15.07, 15.11 and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof15.14. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express Gigamon in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time of the filing of the Certificate of Conversion (and date the Certificate of Conversion will specify that the Conversion shall be effective immediately upon its filing) as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”). References to the Company from and after the Conversion Effective Time shall mean ExpressGigamon. It is acknowledged and agreed that the Conversion shall be conducted in accordance with Delaware Law and terms of that certain Restated Limited Liability Company Agreement of the Company, dated as of January 20, 2010 (as amended or otherwise modified from time to time, the “Company LLC Agreement”). (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, privileges and powers of the Company shall vest in ExpressGigamon, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, liabilities and duties of ExpressGigamon. For the avoidance of doubt, it is hereby acknowledged and agreed that the Conversion shall not limit any rights and obligations of the parties under those certain Investor Rights Agreement, Drag-Along Voting Agreement and Right of First Refusal and Co-Sale Agreement, each dated as of January 20, 2010, by and among the Company, Systems, HCP, HSVII-B, HSVII-C, HEF and the other parties thereto, and the Company’s 2012 Unit Option Plan. (c) The Gigamon shall be initially governed by the Certificate of Incorporation and the bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express each case until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express Gigamon and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express Gigamon and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock or Preferred Stock, as the case may be, specified in Section 2.01(f2.1(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock or Preferred Stock as specified in Section 2.01(f2.1(f). (f) At the Conversion Effective Time, all (i) each outstanding Common Unit of the outstanding equity interests of Company (as defined in the Company LLC Agreement) immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into one share of Common Stock of Gigamon and (ii) each outstanding Series A Preferred Unit of the number Company (as defined in the Company LLC Agreement) immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into one share of Preferred Stock of Gigamon. Upon issuance pursuant to the Conversion, all shares of Common Stock and Preferred Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached heretoGigamon will be duly authorized, validly issued, fully paid and non-assessable. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock or Preferred Stock of Express Gigamon issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) Agreement shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.062.6, 4.073.3, 6.023.4, 6.04(a) and 6.04(b)Article IV, and (ii) for the avoidance of doubtSections 6.3, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) 9.2, 9.3 and (C) hereof10.12. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g2.1(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express NantHealth in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time of the filing of the Certificate of Conversion (and date the Certificate of Conversion will specify that the Conversion shall be effective immediately upon its filing) as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”). References to the Company from and after the Conversion Effective Time shall mean ExpressNantHealth. It is acknowledged and agreed that the Conversion shall be conducted in accordance with Delaware Law and terms of that certain Ninth Amended and Restated Limited Liability Company Agreement of the Company, dated as of January 1, 2016 (as amended or otherwise modified from time to time, the “Company LLC Agreement”). (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, privileges and powers of the Company shall vest in ExpressNantHealth, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, liabilities and duties of ExpressNantHealth. (c) The NantHealth shall be initially governed by the Certificate of Incorporation and the bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express each case until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers directors of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express NantHealth and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express NantHealth and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock as specified in Section 2.01(f2.1(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock as specified in Section 2.01(f2.1(f). (f) At the Conversion Effective Time, all (i) each outstanding Unit (as defined in the outstanding equity interests Company LLC Agreement) of the Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the such number of shares of Common Stock of Express set forth opposite NantHealth as provided for in Section 8.7.2 in the name Company LLC Agreement; provided that the Series C Units (as defined in the Company LLC Agreement) shall be subject to vesting requirements commensurate with the vesting requirements applicable to the Series C Units prior to the Conversion and (ii) the Company’s Phantom Unit Plan will be amended pursuant to its terms to make necessary updates as a result of the holder thereof on Exhibit D attached heretoConversion. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply Upon issuance pursuant to the Conversion, all shares of Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions NantHealth will be duly authorized, validly issued, fully paid and repurchase rights in accordance with their termsnon-assessable. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) Agreement shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof9.7. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g2.1(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (ai) Upon On the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of the DGCL and the DLLCA, on the Closing Date, the Company shall convert from a Delaware limited liability company to a Delaware corporation at the Conversion Effective Time. Following the Conversion Effective Time, the Company shall continue as the resulting corporation of the Conversion (the “Resulting Company”). (ii) On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Company Parties shall cause a certificate of conversion relating to the Conversion, in a form reasonably satisfactory to the Company and SPAC (the “Certificate of Conversion”), to be executed and filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”)Delaware. The Conversion shall become effective on the date and time at which the Certificate of Conversion is accepted for filing by the Secretary of State of the State of Delaware or at such later date and/or time as is agreed by the Company and date as provided under the DGCL SPAC and as specified in the Certificate of Conversion (the time the Conversion becomes effective being referred to herein as the “Conversion Effective Time”). References to the Company from . (iii) From and after the Conversion Effective Time shall mean Express. (b) The Time, the Conversion shall have the effects set forth under Delaware Lawin this Agreement, the Certificate of Conversion, Section 265 of the DGCL and Section 18-216 of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all of the properties, rights, privileges, privileges and powers of the Company, and all property, real, personal and mixed, and all debts due to the Company, as well as all other things and causes of action belonging to the Company, shall remain vested in the Resulting Company and shall be the property of the Resulting Company, and the title to any real property vested by deed or otherwise in the Company shall vest not revert or be in Expressany way impaired by reason of the Conversion; but all rights of creditors and all liens upon any property of the Company shall be preserved unimpaired, and all debts, liabilities, liabilities and duties of the Company shall become remain attached to the Resulting Company, and may be enforced against it to the same extent as if said debts, liabilities, liabilities and duties of Expresshad originally been incurred or contracted by it in its capacity as the Resulting Company. (civ) The Certificate of Incorporation and bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of At the Conversion Effective Time, shall be by virtue of the Conversion, the certificate of incorporation of the Resulting Company shall be in substantially the form attached hereto as Exhibit D (the “Closing Company Charter”) and the bylaws of Express until thereafter amended the Resulting Company shall be in accordance with substantially the provisions thereof and applicable Lawform attached hereto as Exhibit E (the “Closing Company Bylaws”). (dv) Subject to applicable LawAt the Conversion Effective Time, (i) the members of the board of managers officers of the Company as of immediately prior to the Conversion Effective Time shall be the members initial officers of the board of directors of Express and shall Resulting Company, with each such officer, to hold office in accordance with the Governing Documents of the Resulting Company from and after the Conversion Effective Time until their respective successors are such officer’s successor is duly elected or appointed and qualified, or until the earlier of their earlier death, resignationresignation or removal in accordance with the Governing Documents of the Resulting Company, or removal, and (ii) as otherwise provided by the officers DGCL. The directors of the Resulting Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removaldetermined pursuant to Section 5.16. (evi) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of At the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, (A) each Company Common Unit shall be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Company Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant Shares equal to the Company LLC AgreementCommon Unit Exchange Ratio, except that (B) each Non-Elected Company Preferred Unit shall be automatically converted into the following provisions number of Company Common Shares equal to the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the ClosingPreferred Unit Exchange Ratio, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding each Elected Company Preferred Unit shall be automatically converted into the foregoing, the termination number of Company Preferred Shares equal to the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective TimePreferred Shares Issuance Ratio. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall cause to be filed with the Secretary of State of the State of Delaware (i) a certificate of conversion in the form of Exhibit A attached hereto (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). The Conversion shall become effective at the time of the filing of the Certificate of Conversion (and date the Certificate of Conversion will specify that the Conversion shall be effective immediately upon its filing) as provided under the DGCL and as specified in the Certificate of Conversion (the “Conversion Effective Time”), which Conversion Effective Time shall occur immediately following the effectiveness of the Registration Statement (i.e., within ninety minutes following the effectiveness of the Registration Statement and, in any event, no later than the sale to the underwriters of the Initial Public Offering of any securities registered under the Registration Statement). References to the Company from and after the Conversion Effective Time shall mean Express. (b) The Conversion shall have the effects set forth under Delaware Law. Without limiting the generality of the foregoing, and subject thereto, at the Conversion Effective Time, all the properties, rights, privileges, and powers of the Company shall vest in Express, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of Express. (c) The Certificate of Incorporation and bylaws of Express (in the form of Exhibit C attached hereto), as in effect as of the Conversion Effective Time, shall be the certificate of incorporation and bylaws of Express until thereafter amended in accordance with the provisions thereof and applicable Law. (d) Subject to applicable Law, (i) the members of the board of managers of the Company as of the Conversion Effective Time shall be the members of the board of directors of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Sections 4.06, 4.07, 6.02, 6.04(a) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.

The Conversion. (a) Upon the terms and subject Subject to the conditions provisions of this Agreement, at promptly following the Closing, the Company Parent shall cause a certificate of conversion substantially in the form attached hereto as Exhibit D (the “Certificate of Conversion”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware (i) and the Secretary of State of the State of Washington to effect its conversion from a certificate Washington corporation to a Delaware corporation in accordance with the relevant provisions of conversion in the form of Exhibit A attached hereto DGCL and the WBCA, as applicable (the “Certificate of Conversion”) providing for the Conversion, and (ii) a certificate of incorporation of Express in the form of Exhibit B attached hereto (the “Certificate of Incorporation”). If the Secretary of State of the State of Delaware or the Secretary of State of the State of Washington require any changes in the Certificate of Conversion as a condition to filing or issuing a certificate to the effect that such Conversion is effective, Parent shall execute any necessary document incorporating such changes, provided such changes are not inconsistent with and do not result in any material change in the terms of this Agreement. The Conversion shall will become effective at such time as the Certificate of Conversion has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by the Company and date as provided under the DGCL Parent in writing and as specified in the Certificate of Conversion (in accordance with the “Conversion Effective Time”). References to the Company from and after the Conversion Effective Time shall mean ExpressDGCL. (b) The Conversion shall have At the effects set forth under Delaware Law. Without limiting the generality effective time of the foregoing, and subject thereto, at Conversion: (i) the Conversion Effective Time, all articles of incorporation of Parent shall be replaced with the properties, rights, privileges, and powers certificate of the Company shall vest in Express, and all debts, liabilities, and duties of the Company shall become the debts, liabilities, and duties of Express. (c) The Certificate of Incorporation and bylaws of Express (incorporation substantially in the form of attached hereto as Exhibit C attached hereto)A-2, and, as in effect as of the Conversion Effective Timeso replaced, shall be the certificate of incorporation and bylaws of Express Parent until thereafter amended in accordance with the provisions terms thereof or as provided by applicable Law; and (ii) the bylaws of Parent shall be replaced with the bylaws substantially in the form attached hereto as Exhibit B, and, as so replaced, shall be the bylaws of Parent until thereafter amended in accordance with the terms thereof, the certificate of incorporation of Parent, or as provided by applicable Law. (dc) Subject to For United States federal and applicable Lawstate and local income tax purposes, (iit is intended by the parties hereto that the Conversion qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) the members of the board Code and that this Agreement constitute a “plan of managers reorganization” for purposes of Sections 354, 361 and 368 of the Company as Code within the meaning of the Conversion Effective Time shall be the members of the board of directors of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal, and (ii) the officers of the Company as of the Conversion Effective Time shall be the officers of Express and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal. (e) All of the equity interests of the Company outstanding as of immediately prior to the Conversion Effective Time shall, as of the Conversion Effective Time, by virtue of the Conversion and without any action on the part of any Party hereto or the holder thereof or any other Person, be canceled and extinguished and converted into the right to receive the Common Stock specified in Section 2.01(f). All of such outstanding equity interests of the Company when so converted, shall no longer be outstanding and shall automatically be canceled and the former holders thereof shall cease to have any rights with respect thereto, except the right to receive the Common Stock specified in Section 2.01(f). (f) At the Conversion Effective Time, all the outstanding equity interests of Company immediately prior to the Conversion Effective Time shall, by reason of the Conversion, be converted into the number of shares of Common Stock of Express set forth opposite the name of the holder thereof on Exhibit D attached hereto. Neither any provision of the Transaction Documents nor the consummation of the transactions contemplated thereby will limit, impair or otherwise modify any vesting restrictions or repurchase rights with respect to any equity issued by the Company to any officer or employee of the Company, which vesting restrictions and repurchase rights shall continue to apply to the Common Stock of Express issued hereby to any such Persons until the expiration of such vesting restrictions and repurchase rights in accordance with their terms. (g) As of the Conversion Effective Time, that certain Limited Liability Company Agreement of the Company, dated as of June 28, 2008 (as amended or otherwise modified from time to time, the “Company LLC Agreement”) shall be terminated and of no further force and effect, and no party thereto shall have any further rights, duties or obligations pursuant to the Company LLC Agreement, except that the following provisions of the Company LLC Agreement shall survive the Closing: (i) with respect to any tax matters relating to tax periods of the Company ending on or prior to the Closing, Treasury Regulations Sections 4.06, 4.07, 6.02, 6.04(a1.368-2(g) and 6.04(b), and (ii) for the avoidance of doubt, the provisions of the Company LLC Agreement memorialized in the agreements set forth in Section 2.02(ii)(B) and (C) hereof. Notwithstanding the foregoing, the termination of the Company LLC Agreement pursuant to this Section 2.01(g) shall not relieve any party thereto from any liability arising in connection with any breach by such party of the Company LLC Agreement whether arising prior to or after the Conversion Effective Time1.368-3. (h) In consideration of the aforementioned termination of the Company LLC Agreement, upon consummation of the Initial Public Offering, Express, in its capacity as successor-in-interest to the Company, shall make a cash payment, by wire transfer of immediately available funds, to, at the direction of EXP and LBSO, either EXP, LBSO or a designee thereof, in the amount of $3,333,333.