Common use of Action in Stockholder’s Capacity Only Clause in Contracts

Action in Stockholder’s Capacity Only. No person executing this Agreement (or designee or representative of such person) who has been, is or becomes during the term of this Agreement a director, trustee, officer or fiduciary of the Company shall be deemed to make any agreement or understanding in this Agreement in such person’s capacity as a director, trustee, officer or fiduciary of the Company. The parties acknowledge and agree that this Agreement is entered into by the Stockholders solely in their capacity as the beneficial owners or record holders of Company Common Shares and Company Series E Preferred Shares and nothing in this Agreement shall restrict, limit or affect (or require the Stockholders to attempt to restrict, limit or affect) in any respect any actions taken by the Stockholders or their designees or representatives who are a director, trustee, officer or fiduciary of the Company in their capacity as a director, trustee, officer or fiduciary of the Company. Neither the Stockholders nor any of their designees or representatives shall have any liability under this Agreement as a result of any action or inaction by the Stockholders or their designees or representatives acting in its capacity as an officer, trustee, director or fiduciary of the Company, it being understood that any action taken (or failure to take action) by the Stockholders or their designees or representatives in such capacity shall have no effect on the obligations of the Stockholders under this Agreement as the record holder or beneficial owner of Subject Securities if this Agreement has not been validly terminated in accordance with its terms.