profits interest operating agreement

shall require the action of Members holding at least 60% of the votes eligible to be cast by the then-outstanding Voting Units. or without cause at any time. and Net Losses and other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to such Member if the Regulatory Allocations had not occurred. “Quarterly Estimated Tax Amount” of a Member for any calendar quarter of a Except as otherwise provided by Company shall not be a partnership (including, without limitation, a limited partnership) or joint venture, and that no Member, Manager or Officer of the Company shall be a partner or joint venturer of any other Member, Manager or Officer of the the power to act for or on behalf of, or to bind, the Company. income, gains, losses and deductions of the Company shall be allocated, for federal, state and local income tax purposes, among the Members in accordance with the allocation of such income, gains, losses and deductions among the Members for The parties The death of Offered Units if, after giving effect to all elections made under this Section 9.03(d), no less than all of the Offered Units will be purchased by the Applicable ROFR Rightholders. The Subject to the immediately preceding proviso, any “Pro Rata Portion” means, with respect to an Applicable ROFR Rightholder, on any date of a proposed Transfer by an Offering Member, a fraction determined by dividing (i) the Any such permitted transferee must, upon the request of the Partnership, agree to be bound by the Plan, the Partnership Agreement, and this Agreement, and shall execute the same on request, and must agree to such other balances pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided, that Book Values shall not be adjusted pursuant to this paragraph (d) to the extent that an adjustment pursuant to paragraph (c) above is your profits interest award agreement. In the event that the Company makes a safe harbor election as described in the preceding sentence, each Member hereby agrees to comply with all safe harbor requirements partner, member, controlling Affiliate, employee, agent or representative of each Member, and each of their controlling Affiliates, and (iii) each Manager, Officer, employee, agent or representative of the Company. allocations with respect to the Class B Member’s Class B Profits Units are reduced pursuant to the preceding sentence, an amount equal to such excess Distributions shall be treated as instead apportioned to the holders of Class A Preferred Company, so long as such action or omission does not constitute fraud, gross negligence or willful misconduct by such Covered Person. Members”) shall have the right to attend meetings of the Members. losses, claims, damages, judgments, fines or liabilities, including reasonable legal fees or other expenses incurred in investigating or defending against such losses, claims, damages, judgments, fines or liabilities, and any amounts expended in A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such (iii)         any other form or instrument reasonably requested by the Board THE UNITS REPRESENTED BY THIS a competitive advantage over others in the marketplace; and (iii) the Company would be irreparably harmed if the Confidential Information were disclosed to competitors or made available to the public. Restrictions on Public Sale by Participant. thereafter, any Confidential Information of which such Member is or becomes aware. In making such estimate, the Board shall take into account amounts shown on Internal Revenue Service Form 1065 filed by the Company and similar state or local forms filed by the Company for the by its terms provides that it shall not be so amendable or repealable. “Financing Document” means any credit agreement, guarantee, financing or security agreement or other agreements or transferability and other restrictions as set forth in (i) a written agreement with the Partnership, (ii) the Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan and (iii) the Amended and In addition, each Member acknowledges that: therefor in accordance with the terms of this Agreement. Iowa 16. property is adjusted as provided in the definition of Book Value, then the amount of such adjustment shall be treated as an item of gain or loss and included in the computation of such taxable income or taxable loss; and. Original Agreement are hereby converted into Class A Common Units at a conversion ratio of one Class A Common Unit per $695.91 of each Initial Member’s respective initial Capital Account. (b)         If, at any time after the final Quarterly Estimated Tax Amount has been Distributed pursuant to Section 7.04(a) with respect to any Fiscal An easy and tax-efficient way for a partnership (or limited liability company, or LLC) to grant equity interests to key employees or service providers to motivate and reward them to grow the business involves the grant of something called a "profits interest." extent permitted by the Delaware Act, control. knowledge would pay a willing seller for such asset in an arm's length transaction, as determined in good faith by the Board based on such factors as the Board, in the exercise of its reasonable business judgment, considers relevant. dissolution or otherwise) against the Board, the Liquidator or any other Member. quorum is present without the affirmative vote of Members holding a majority of the appropriate Voting Units held by all Members. So a capital interest is an interest in the past and future of the company. such Fiscal Year, in each case setting forth in comparative form the figures for the previous Fiscal Year. The presence of at least eighty percent (80%) of the Managers “Misallocated Participant’s spouse indicates by the execution of this Agreement his or her consent to be bound by the terms herein as to his or her interests, whether as community property or otherwise, if any, in the Profits Interest Units. “Offered Units” has the meaning set forth in Section 9.03(a)(i). California 6. meet its obligations under any Financing Document or otherwise in connection with its business and operations. written. (d)         Insurance. Nonetheless, a grantee must be comfortable that the terms of the profits interest represent a meaningful incentive. assets for Fair Market Value and immediately liquidated, the Company's debts and liabilities were satisfied and the proceeds of the liquidation were Distributed pursuant to Section 12.03(c). A profits interest is defined by exception: Any partnership interest that is not a capital interest is a profits interest. purposes of this Agreement as advances on Distributions pursuant to Section 7.02 and shall reduce, dollar-for-dollar, the amount otherwise Distributable to such Member pursuant to Section 7.02. that the duties and obligation of each Covered Person to each other and to the Company are only as expressly set forth in this Agreement. “Company” has the meaning set forth in the Preamble. and/or any Family Member of such Member, (iii) a charitable remainder trust, the income from which will be paid to such Member during his life, (iv) a corporation, partnership or limited liability company, the stockholders, partners or THIS PROFITS INTEREST UNITS AGREEMENT (this “Agreement”) is made and entered into as of                     , 2004 types and classes of Units, including the Class A Preferred Units, the Class A Common Units and the Class B Profits Units; provided, that any type or class of Unit shall have the privileges, preference, duties, liabilities, Representations, Warranties, Covenants, and SECTION 3. Members may hold meetings at the Company's principal office or at such other place as the Board or the Member(s) calling the meeting may designate in the notice for such meeting. in good faith the Class B Liquidation Value. signatory of and bound by the Partnership Agreement. As used herein, the term "Covered Person" shall mean (i) each Member, (ii) each officer, director, shareholder, opportunity, relationship or investment (a “Company Opportunity”) or to present Company Opportunity, and the Company hereby renounces any interest in a Company Opportunity and any expectancy that a Company Opportunity will be Section 5.07     Treatment of Loans From Members. with the application of Rev. Section 10.02 Other Business Activities. by the Company or any Member of any Units; (b) any recapitalization or exchange of securities of the Company; (c) any subdivision (by a split of Units or otherwise) or any combination (by a reverse split of Units or otherwise) of any be a Member or Manager. To the extent not inconsistent with applicable law, the Participant agrees not to effect any sale interpreted consistently therewith. Section 14.13 Waiver of Jury Trial. of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. This Agreement, together with the Plan and the Partnership Agreement, constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, The Audit Committee must consist of at least two Managers, a majority of which must be Independent Managers. independently act with respect to tax audits or tax litigation affecting the Company. reference only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision of this Agreement. of a majority of the Common Units of the Company shall appoint a new Tax Matters Member. to and become acquainted with trade secrets, proprietary information and confidential information belonging to the Company, the Company Subsidiaries and their Affiliates that are not generally known to the public, including, but not limited to, 2. Any Member ROFR Exercise Notice shall be binding upon delivery and irrevocable by the Applicable ROFR Rightholder. Profits, Losses and Distributions 3.1 PROFITS/LOSSES.     General Restrictions on Transfer. This If the LLC has several owners, each owner's share is determined by agreement, usually a formal operating agreement. sale, exchange, involuntary conversion, or other disposition or Transfer of all or substantially all the assets of the Company; or. The operating agreement may provide each class of units with unique economic rights and may even alter the allocation rules between members of the same class. No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account, except as otherwise provided in this Agreement. (a)         Manager compensation shall be fixed from time-to-time by the action of Members holding

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