Common use of Action by the Board of Directors Clause in Contracts

Action by the Board of Directors. (a) Except as provided below, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee of the Board of Directors, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant to Section 4.1(f). (b) The Company shall not, and it shall cause each of its Subsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, without the affirmative vote of the Apollo Nominees: (i) increase the number of authorized shares of Preferred Stock or authorize the issuance or issue of any shares of Preferred Stock other than to existing holders of Preferred Stock; (ii) issue any new class or series of equity security or issue any additional shares of Series C Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval rights set forth in this Section 4.2; (v) directly or indirectly, redeem, purchase or otherwise acquire for value (including through an exchange), or set apart money or other property for any mandatory purchase or other analogous fund for the redemption, purchase or acquisition of any shares of Common Stock or Junior Stock (as defined in the Certificate of Designation), or declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (vi) cause the number of directors of the Company to be greater than eight (8); (vii) enter into any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions; (viii) effect a voluntary liquidation, dissolution or winding up of the Company; (ix) sell or agree to sell all or substantially all of the assets of the Company, unless such transaction (1) is a sale for cash and (2) results in an internal rate of return (“IRR”) to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; or (x) enter into any merger or consolidation or other business combination involving the Company (except a merger of a wholly-owned subsidiary of the Company into the Company in which the Company’s capitalization is unchanged as a result of such merger) unless such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998. (c) Notwithstanding the foregoing Section 4.2(b), if Apollo owns less than 7,457,043 Shares, the provisions of Section 4.2(b) shall cease to exist and shall be of no further force or effect. (d) While any shares of Series C Preferred Stock are outstanding, the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of the Finance Committee. (e) While any shares of Series C Preferred Stock are outstanding, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote of the Finance Committee; provided, however, that the following equity issuances shall require only a majority affirmative vote of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to or greater than the price that would imply a 25% or greater IRR compounded quarterly on the Conversion Price (as defined in the Certificate of Designation) from August 5, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% of the outstanding Common Stock (calculated post-issuance of such shares of Common Stock).

Action by the Board of Directors. (a) Except as provided belowNotwithstanding anything to the -------------------------------- contrary in the bylaws of the Company, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee a committee of the Board of DirectorsBoard, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant such committee. Prior to Section 4.1(f). (b) The the consummation of a Qualified IPO, the Company shall not, and it the Company shall cause each of its Subsidiaries subsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, matters without the affirmative vote of a majority of the Apollo Nominees: directors then in office and, if there is a Class B Director, the affirmative vote of the Class B Director: (a) any merger or consolidation of the Company or its successors or any subsidiary of the Company or its successors, other than (i) increase any merger between the number of authorized shares of Preferred Stock Company and any direct or authorize the issuance indirect wholly owned subsidiary, or issue of any shares of Preferred Stock other than to existing holders of Preferred Stock; between direct or indirect wholly owned subsidiaries, or (ii) issue any new class or series of equity security or issue any additional shares of Series C Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, merger subject to the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval bring - along rights set forth in this Section 4.2; 6 hereof; (vc) directly any entry into a line of business other than the sale or indirectly, redeem, service of automobiles and other vehicles (whether by stock or asset purchase or otherwise acquire for value (including through an exchange), otherwise) by the Company or set apart money or a subsidiary other property for any mandatory purchase or other analogous fund for the redemption, purchase or acquisition than as a consequence of any shares of Common Stock or Junior Stock a Permitted Investment (as defined in the Certificate Purchase Agreement); (d) any acquisition of Designationassets other than in the ordinary course of business (including the acquisition of any automotive dealership or all or substantially all of its assets), or declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (vi) cause the number of directors of the Company pursuant to be greater than eight (8); (vii) enter into any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions; , if the purchase price therefor (viiiincluding any debt assumed in connection therewith) effect a voluntary liquidationexceeds $4,000,000; (e) any adoption or material amendment of an employee or similar plan under which capital stock, dissolution or winding up rights, options or warrants to acquire capital stock, of the Company; Company or a subsidiary may be issued; (ixf) sell any issuance or agree sale of capital stock or rights, options or warrants to sell all or substantially all acquire capital stock of the assets Company or any subsidiary (other than (1) issuances by the Company pursuant to a Qualified IPO, (2) the issuance of capital stock of the Company or rights, options or warrants to acquire capital stock of the Company under employee stock option or stock purchase plans, (3) any such issuance or sale by a subsidiary to the Company or a wholly owned subsidiary of the Company, unless such transaction (4) the issuance of any shares of Common Stock upon the exercise or conversion of any option, warrant or other convertible security outstanding on the date hereof or issued hereafter in accordance with the terms of this Agreement; (g) declaration or payment of any dividend on, distributions with respect to, or repur chase or redemption of capital stock other than (1) is a sale for cash and pro rata dividends on the Common Stock paid from current earnings, (2) results in an internal rate --- ---- payments of return (“IRR”) to Apollo dividends on or repurchases of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; shares of wholly owned subsidiaries' capital stock or (x3) enter into any merger or consolidation or other business combination involving the Company (except a merger repurchases of a whollyCommon Stock held by bona ---- fide, full-owned subsidiary time employees of the Company into or its subsidiaries (other than ---- Xxx Xxxxx or Xxxxxx Xxxxxxx) in connection with the Company in which the Company’s capitalization is unchanged as a result death, disability or termination of such merger) unless employees in accordance with the terms of any employee stock option or stock purchase plan, provided that the aggregate amount of -------- all such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998.repurchases shall not exceed $250,000 per fiscal year; (ch) Notwithstanding any amendment of the foregoing Section 4.2(b), if Apollo owns less than 7,457,043 Shares, the provisions of Section 4.2(b) shall cease to exist and shall be of no further force or effect. (d) While any shares of Series C Preferred Stock are outstanding, the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities Charter Documents of the Company with or any subsidiary, except as necessary to accommodate a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of the Finance Committee.Qualified IPO (ei) While any shares of Series C Preferred Stock are outstandingdissolution, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities liquidation or bankruptcy filing of the Company or any subsidiary; (j) any replacement of independent accountants; (k) any transaction with a value an Affiliate; (l) any increase or reduction in excess the number of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote authorized members of the Finance Committee; provided, however, that the following equity issuances shall require only Board or any creation of or appointment of members to a majority affirmative vote committee of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to Board, or greater than the price that would imply a 25% any direct or greater IRR compounded quarterly indirect payment to, or on the Conversion Price (as defined in the Certificate of Designation) from August 5behalf of, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% of the outstanding Common Stock (calculated post-issuance any member of such shares board, as compensation for serving thereon or as a member of Common Stockany committee thereof (other than reimbursement of expenses in accordance with Section 3.8 hereof).

Action by the Board of Directors. (a1) Except as provided belowherein, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee of the Board of Directors, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant to applicable law and Section 4.1(f4.1(g). (b2) The As long as Xxxxxxxx, together with any and all of its Permitted Transferees, beneficially owns in aggregate 40% or more of the Shares beneficially owned by Xxxxxxxx on the Effective Date, without the affirmative vote of each of the Xxxxxxxx Nominees, the Company shall not, and it shall cause each of its Subsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, without the affirmative vote of the Apollo Nominees: (i) increase incur a significant amount of Indebtedness in the number aggregate (which for purposes of authorized shares this clause (i), any amount in excess of Preferred Stock or authorize $10 million in the issuance or issue of any shares of Preferred Stock other than aggregate shall be deemed to existing holders of Preferred Stockbe significant); (ii) issue any new class or series of equity security or issue any additional shares of Series C Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval rights set forth in this Section 4.2; (v) directly or indirectly, redeem, purchase or otherwise acquire for value (including through an exchange)value, or set apart money or other property for any mandatory purchase or other analogous similar fund for the redemption, purchase or acquisition of any shares of Common Stock or Junior Stock (as defined in the Certificate Certificates of DesignationDesignations), or except for the repurchase by the Company of up to 5% of the outstanding Common Stock of the Company outstanding on the Effective Date; (iii) declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (viiv) cause the number of directors of the Company to be greater than eight (8); (vii) enter into sell, lease, license or otherwise dispose of, in any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions, a significant amount of the property and other assets of the Company, (v) amend, alter or repeal, in any manner whatsoever, the designations, preferences, privileges and relative rights and limitations and restrictions of the Series A Preferred Stock, (vi) increase or decrease the number of authorized shares of Common Stock or Preferred Stock, (vii) enter into any transaction which results, directly or indirectly, in the sale, merger, consolidation or corporate reorganization of, or other similar transaction involving, the Company, including, without limitation, any transaction which would result in a Change in Control (as defined in the Certificates of Designations) of the Company, (viii) create (by reclassification or otherwise), authorize or issue any new class or series of equity security having designations, preferences, privileges or rights senior to, or on parity with, the Series A Preferred Stock, (ix) create (by reclassification or otherwise), authorize or issue any class, series or shares of capital stock or other securities junior to the Series A Preferred Stock if such junior securities may be redeemed in any circumstance on or prior to the Final Redemption Date (as defined in the Certificates of Designations"), (x) amend, alter or repeal any of the provisions of the Charter Documents or the Certificates of Designations in a manner that would adversely affect the holders of the Series A Preferred Stock; (viiixi) adopt, and if adopted, amend or waive any provision of, a shareholder rights plan or similar plan or agreement, (xii) effect a voluntary liquidation, dissolution or winding up of the Company; (ix) sell or agree to sell all or substantially all of the assets of the Company, unless such transaction (1) is a sale for cash and (2) results in an internal rate of return (“IRR”) to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; or (xxiii) enter into voluntarily file for bankruptcy, or otherwise seek protection under any merger federal or consolidation state bankruptcy or other business combination involving the Company (except a merger of a wholly-owned subsidiary of the Company into the Company in which the Company’s capitalization is unchanged as a result of such merger) unless such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998similar law. (c3) Notwithstanding Until the foregoing Section 4.2(b)6th month anniversary of the date hereof, if Apollo owns less than 7,457,043 Sharesany termination of Xxxxxxxx Xxxxxxx'x, the provisions of Section 4.2(b) shall cease to exist and shall be of no further force Xxxxxx Xxxxx' or effect. (d) While any shares of Series C Preferred Stock are outstanding, Xxxxx Xxxxxxxx'x employment by the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of the Finance Committee. (e) While any shares of Series C Preferred Stock are outstanding, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote of the Finance Committee; provided, however, that the following equity issuances shall require only a majority affirmative vote of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to or greater than the price that would imply a 25% or greater IRR compounded quarterly on the Conversion Price Cause (as defined in the Certificate Company's Retention Bonus Plan) shall require the affirmative vote of Designation) from August 5, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% a majority of the outstanding Common Stock (calculated post-issuance Board of Directors. Notwithstanding anything to the contrary herein, the approval of the termination of such shares persons employment may not be delegated to a committee of Common Stock)the Board of Directors.

Action by the Board of Directors. (a) Except as provided belowherein, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee of the Board of Directors, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant to applicable law and Section 4.1(f4.1(g). (b) The As long as Williams, together with any and all of its Permitted Transferees, bxxxxxxxxlly owns in aggregate 40% or more of the Shares beneficially owned by Williams on the Effective Date, without the affirmative vote of eacx xx xxx Williams Nominees, the Company shall not, and it shall cause each of its Subsidiaries ox xxx Xxbsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, without the affirmative vote of the Apollo Nominees: (i) increase incur a significant amount of Indebtedness in the number aggregate (which for purposes of authorized shares this clause (i), any amount in excess of Preferred Stock or authorize $10 million in the issuance or issue of any shares of Preferred Stock other than aggregate shall be deemed to existing holders of Preferred Stockbe significant); (ii) issue any new class or series of equity security or issue any additional shares of Series C Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval rights set forth in this Section 4.2; (v) directly or indirectly, redeem, purchase or otherwise acquire for value (including through an exchange)value, or set apart money or other property for any mandatory purchase or other analogous similar fund for the redemption, purchase or acquisition of any shares of Common Stock or Junior Stock (as defined in the Certificate Certificates of DesignationDesignations), or except for the repurchase by the Company of up to 5% of the outstanding Common Stock of the Company outstanding on the Effective Date; (iii) declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (viiv) cause the number of directors of the Company to be greater than eight (8); (vii) enter into sell, lease, license or otherwise dispose of, in any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions, a significant amount of the property and other assets of the Company, (v) amend, alter or repeal, in any manner whatsoever, the designations, preferences, privileges and relative rights and limitations and restrictions of the Series A Preferred Stock, (vi) increase or decrease the number of authorized shares of Common Stock or Preferred Stock, (vii) enter into any transaction which results, directly or indirectly, in the sale, merger, consolidation or corporate reorganization of, or other similar transaction involving, the Company, including, without limitation, any transaction which would result in a Change in Control (as defined in the Certificates of Designations) of the Company, (viii) create (by reclassification or otherwise), authorize or issue any new class or series of equity security having designations, preferences, privileges or rights senior to, or on parity with, the Series A Preferred Stock, (ix) create (by reclassification or otherwise), authorize or issue any class, series or shares of capital stock or other securities junior to the Series A Preferred Stock if such junior securities may be redeemed in any circumstance on or prior to the Final Redemption Date (as defined in the Certificates of Designations"), (x) amend, alter or repeal any of the provisions of the Charter Documents or the Certificates of Designations in a manner that would adversely affect the holders of the Series A Preferred Stock; (viiixi) adopt, and if adopted, amend or waive any provision of, a shareholder rights plan or similar plan or agreement, (xii) effect a voluntary liquidation, dissolution or winding up of the Company; (ix) sell or agree to sell all or substantially all of the assets of the Company, unless such transaction (1) is a sale for cash and (2) results in an internal rate of return (“IRR”) to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; or (xxiii) enter into voluntarily file for bankruptcy, or otherwise seek protection under any merger federal or consolidation state bankruptcy or other business combination involving the Company (except a merger of a wholly-owned subsidiary of the Company into the Company in which the Company’s capitalization is unchanged as a result of such merger) unless such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998similar law. (c) Notwithstanding Until the foregoing Section 4.2(b)6th month anniversary of the date hereof, if Apollo owns less than 7,457,043 Sharesany termination of Nicholas Baletta's, the provisions of Section 4.2(bRobert Davis' or Scott Klososky's employment by xxx Xxxxxxx xxxxxut Xxxxx (xx xefinex xx xxx Xxxxxxx's Retention Bonus Plan) shall cease to exist and shall be of no further force or effect. (d) While any shares of Series C Preferred Stock are outstanding, require the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of a majority of the Finance Committee. (e) While any shares Board of Series C Preferred Stock are outstandingDirectors. Notwithstanding anything to the contrary herein, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities approval of the Company with termination of such persons employment may not be delegated to a value in excess of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote committee of the Finance Committee; provided, however, that the following equity issuances shall require only a majority affirmative vote Board of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to or greater than the price that would imply a 25% or greater IRR compounded quarterly on the Conversion Price (as defined in the Certificate of Designation) from August 5, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% of the outstanding Common Stock (calculated post-issuance of such shares of Common Stock)Directors.

Action by the Board of Directors. (a1) Except as provided belowherein, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee of the Board of Directors, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant to applicable law and Section 4.1(f4.1(g). (b2) The As long as Xxxxxxxx, together with any and all of its Permitted Transferees, beneficially owns in aggregate 40% or more of the Shares beneficially owned by Xxxxxxxx on the Effective Date, without the affirmative vote of each of the Xxxxxxxx Nominees, the Company shall not, and it shall cause each of its Subsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, without the affirmative vote of the Apollo Nominees: (i) increase incur a significant amount of Indebt- edness in the number aggregate (which for purposes of authorized shares this clause (i), any amount in excess of Preferred Stock or authorize $10 million in the issuance or issue of any shares of Preferred Stock other than aggregate shall be deemed to existing holders of Preferred Stockbe significant); (ii) issue any new class or series of equity security or issue any additional shares of Series C Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval rights set forth in this Section 4.2; (v) directly or indirectly, redeem, purchase or otherwise acquire for value (including through an exchange)value, or set apart money or other property for any mandatory purchase or other analogous similar fund for the redemption, purchase or acquisition of any shares of Common Stock or Junior Stock (as defined in the Certificate Certificates of DesignationDesignations), or except for the repurchase by the Company of up to 5% of the outstanding Common Stock of the Company outstanding on the Effective Date; (iii) declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (viiv) cause the number of directors of the Company to be greater than eight (8); (vii) enter into sell, lease, license or otherwise dispose of, in any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions, a significant amount of the property and other assets of the Company, (v) amend, alter or repeal, in any manner whatsoever, the designations, preferences, privileges and relative rights and limitations and restrictions of the Series A Preferred Stock, (vi) increase or decrease the number of authorized shares of Common Stock or Preferred Stock, (vii) enter into any transaction which results, directly or indirectly, in the sale, merger, consolidation or corporate reorganization of, or other similar transaction involving, the Company, including, without limitation, any transaction which would result in a Change in Control (as defined in the Certificates of Designations) of the Company, (viii) create (by reclassification or otherwise), authorize or issue any new class or series of equity security having designations, preferences, privileges or rights senior to, or on parity with, the Series A Preferred Stock, (ix) create (by reclassification or otherwise), authorize or issue any class, series or shares of capital stock or other securities junior to the Series A Preferred Stock if such junior securities may be redeemed in any circumstance on or prior to the Final Redemption Date (as defined in the Certificates of Designations"), (x) amend, alter or repeal any of the provisions of the Charter Documents or the Certificates of Designations in a manner that would adversely affect the holders of the Series A Preferred Stock; (viiixi) adopt, and if adopted, amend or waive any provision of, a shareholder rights plan or similar plan or agreement, (xii) effect a voluntary liquidation, dissolution or winding up of the Company; (ix) sell or agree to sell all or substantially all of the assets of the Company, unless such transaction (1) is a sale for cash and (2) results in an internal rate of return (“IRR”) to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; or (xxiii) enter into voluntarily file for bankruptcy, or otherwise seek protection under any merger federal or consolidation state bankruptcy or other business combination involving the Company (except a merger of a wholly-owned subsidiary of the Company into the Company in which the Company’s capitalization is unchanged as a result of such merger) unless such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998similar law. (c3) Notwithstanding Until the foregoing Section 4.2(b)6th month anniversary of the date hereof, if Apollo owns less than 7,457,043 Sharesany termination of Xxxxxxxx Xxxxxxx'x, the provisions of Section 4.2(b) shall cease to exist and shall be of no further force Xxxxxx Xxxxx' or effect. (d) While any shares of Series C Preferred Stock are outstanding, Xxxxx Xxxxxxxx'x employment by the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of the Finance Committee. (e) While any shares of Series C Preferred Stock are outstanding, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote of the Finance Committee; provided, however, that the following equity issuances shall require only a majority affirmative vote of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to or greater than the price that would imply a 25% or greater IRR compounded quarterly on the Conversion Price Cause (as defined in the Certificate Company's Retention Bonus Plan) shall require the affirmative vote of Designation) from August 5, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% a majority of the outstanding Common Stock (calculated post-issuance Board of Directors. Notwith- standing anything to the contrary herein, the approval of the termination of such shares persons employment may not be delegated to a committee of Common Stock)the Board of Directors.

Action by the Board of Directors. (a) Except as provided below, all decisions of the Board of Directors shall require the affirmative vote of a majority of the directors of the Company then in office, or a majority of the members of an Executive Committee of the Board of Directors, to the extent such decisions may be lawfully delegated to an Executive Committee pursuant to Section 4.1(f). (b) The Company shall not, and it shall cause each of its Subsidiaries not to, take (or agree to take) any action regarding the following matters, directly or indirectly, including through a merger or consolidation with any other corporation or otherwise, without the affirmative vote of the Apollo Nominees: (i) increase the number of authorized shares of Preferred Stock or authorize the issuance or issue of any shares of Preferred Stock other than to existing holders of Preferred Stock; (ii) issue any new class or series of equity security or issue any additional shares of Series C A Preferred Stock; (iii) amend, alter or repeal, in any manner whatsoever, the designations, preferences and relative rights and limitations and restrictions of the Series C Preferred Stock; (iv) amend, alter or repeal any of the provisions of the Charter Documents or the Certificate of Designation in a manner that would negatively impact the holders of the Series C Preferred Stock, including (but not limited to) any amendment that is in conflict with the approval rights set forth in this Section 4.2; (v) directly or indirectly, redeem, purchase or otherwise acquire for value (including through an exchange), or set apart money or other property for any mandatory purchase or other analogous fund for the redemption, purchase or acquisition of any shares of Common Stock or Junior Stock (as defined in the Certificate of Designation), or declare or pay any dividend or make any distribution (whether in cash, shares of capital stock of the Company, or other property) on shares of Common Stock or Junior Stock; (vi) cause the number of directors of the Company to be greater than eight (8); (vii) enter into any agreement or arrangement with or for the benefit of any Person who is an Affiliate of the Company with a value in excess of $5 million in a single transaction or series of related transactions; (viii) effect a voluntary liquidation, dissolution or winding up of the Company; (ix) sell or agree to sell all or substantially all of the assets of the Company, unless such transaction (1) is a sale for cash and (2) results in an internal rate of return (“"IRR”") to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998; or (x) enter into any merger or consolidation or other business combination involving the Company (except a merger of a wholly-owned subsidiary of the Company into the Company in which the Company’s 's capitalization is unchanged as a result of such merger) unless such transaction (1) is for cash and (2) results in an IRR to Apollo of 30% compounded quarterly or greater with respect to each Share issued to Apollo on August 5, 1998. (c) Notwithstanding the foregoing Section 4.2(b), if Apollo owns less than 7,457,043 2,982,817 Shares, the provisions of Section 4.2(b) shall cease to exist and shall be of no further force or effect. (d) While any shares of Series C Preferred Stock are outstanding, the Company shall not and it shall cause each of its Subsidiaries not to, issue any debt securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the majority affirmative vote of the Finance Committee. (e) While any shares of Series C Preferred Stock are outstanding, the Company shall not, and it shall cause each of its Subsidiaries not to, issue any equity securities of the Company with a value in excess of $10 million (including any refinancing of existing indebtedness) without the unanimous affirmative vote of the Finance Committee; provided, however, that the following equity issuances shall require only a majority affirmative vote of the Finance Committee: (A) an offering of Common Stock in which the selling price is equal to or greater than the price that would imply a 25% or greater IRR compounded quarterly on the Conversion Price (as defined in the Certificate of Designation) from August 5, 1998 and (B) an issuance of equity in connection with an acquisition if the issuance is equal to or less than 10% of the outstanding Common Stock (calculated post-issuance of such shares of Common Stock).