Common use of Board of Directors and Other Matters Clause in Contracts

Board of Directors and Other Matters. (a) From and after the date hereof and until the provisions of this Section 5 cease to be effective, each Stockholder shall vote all of the voting securities of the Company over which such Person has voting control and shall take all other necessary or desirable actions within his or its control (whether in his or its capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that: (i) the authorized number of directors on the Company's board of directors (the "Board") shall be the sum of (x) three and (y) the product of (I) the number of directors that the Institutional Investors are entitled to appoint pursuant to (ii)(C) below and (II) two; (ii) the following persons shall be elected to the Board at each election of directors during the term of this Agreement; (A) the Managing Member of EXCO Investors, LLC or, if EXCO Investors, LLC shall have dissolved or liquidated, the Chief Executive Officer of the Company; (B) two representatives designated by holders of a majority of shares of Class A Common Stock owned by the Cerberus Investors (the "Cerberus Directors") from time to time for so long as the Investor Holders own at least 20% of the issued and outstanding shares of Common Stock, or, for so long as the Investor Holders own at least 10% but less than 20% of the issued and outstanding shares of Common Stock, one Cerberus Director, provided, that until the next annual meeting of the Company's stockholders following the date of this Agreement, [ ], [ ] and [ ] shall serve as the Directors; provided, further that the number of Cerberus Directors shall be increased by a number equal to the number of directors that the Institutional Investors shall at any time be entitled to appoint pursuant to (C) below; and (C) one representative designated by each Institutional Investor for so long as such Institutional Investor (x) owns at least 50% of such number of shares of Class A Common Stock purchased by such Institutional Investor as of the date hereof and (y) owns at least 5% of the issued and outstanding shares of Common Stock of the Company (the "Institutional Investor Directors"); provided that in no event shall Institutional Investors be permitted to designate more than 3 Institutional Investors Directors; provided, further that if at any time there shall be more than 3 Institutional Investors, then the Institutional Investor Directors shall be designated by the holders of a majority of the Class A Common Stock held by the Institutional Investors. During any period when the Company is subject to the reporting requirements of Section 13 or Section 15(d) under the Exchange Act, the provisions of this Section 5(a) will be subject to the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of any stock exchange on which securities of the Company are then listed or traded. (b) From and after the date hereof and until the provisions of this Section 5 cease to be effective, the Company, in consultation with the Investors, may establish an advisory board consisting of up to 5 members that are experts in the areas comprising the Company's business (the "Advisory Board"). The Advisory Board shall meet at such times and places and advise the Company with respect to matters that it may reasonably determine or as the Board of Directors of the Company may reasonably request. It is understood that the Advisory Board will serve in an advisory capacity to the Board of Directors and the management of the Company, and shall have no ability to bind the Company or direct the management thereof. (c) The Company and the Stockholders agree that the Company will not, nor will it permit any subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) transactions that are at prices and on terms and conditions not less favorable to the Company or such subsidiary than could be obtained on an arm's length basis from unrelated third parties, (ii) transactions between or among the Company and the Company's subsidiaries not involving any other Affiliate, (iii) payment of dividends with respect to its capital stock, (iv) repurchase, redemption, retirement or other acquisition of its shares of its capital stock or securities convertible into or exchangeable for its capital stock pursuant to the terms of agreements existing on the date hereof, (v) payment or prepayment of indebtedness or interest or principal payments when due for such indebtedness, (vi) pursuant to employment agreements existing on the date hereof or approved by the Board of Directors of the Company, (vii) customary fees paid to members of the Board of Directors of the Company and its subsidiaries or (viii) transactions approved by the Board of Directors of the Company, including by two of the Investor Directors; provided that the terms of this Section 5(c) shall not apply to loans made by the Company to employees that constitute Affiliates on the date hereof, the proceeds of which are used to purchase Shares of Common Stock of the Company. (d) Each of the Other Stockholders and the Company (i) acknowledges that the Investors and their Affiliates own, and from time to time may acquire and own, one or more subsidiaries or investments in one or more other entities (such subsidiaries and entities, collectively, "Cerberus Related Companies") that are direct competitors of, or that otherwise may have interests that do or could conflict with those of the Company or a subsidiary or Affiliate of the Company, and (ii) agree that (A) the enjoyment, exercise and enforcement of the rights, interests, privileges, powers and benefits granted or available to the Investors and their Affiliates under or in respect of the Transactions, the Purchase Agreement, this Agreement and the other Ancillary Documents shall not be in any manner reduced, diminished, affected or impaired, and the obligations of the Investors or its Affiliates or subsidiaries under or in respect of the Transactions, the Purchase Agreement, this Agreement or the other Ancillary Documents shall not be in any manner augmented or increased, by reason of any act, circumstance, occurrence or event arising from or in any respect relating to (x) the ownership by the Investors or any of their Affiliates or subsidiaries of any interest in any Cerberus Related Company, (y) the affiliation of any Cerberus Related Company with the Investors or any of their Affiliates or subsidiaries or (z) any action taken or omitted by the Investors or any of their Affiliates or subsidiaries in respect of any Cerberus Related Company or in respect of any Affiliate or subsidiary of any Investor that directly or indirectly owns any interest in any Cerberus Related Company, (B) neither any Investor nor any of their Affiliates or subsidiaries is, and none shall by reason of such ownership or any such action become, subject to any fiduciary duty to the Company or any of its subsidiaries or Affiliates, (C) none of the duties imposed on the Investors or any of their Affiliates, whether by contract or law, do or shall limit or impair the right of the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) lawfully to compete with the Company and its Affiliates and subsidiaries as if the Investors or any said Affiliate or subsidiary were not a party to this Agreement, the Purchase Agreement or the other Ancillary Documents and (D) the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) are not and shall not be obligated to disclose to the Company or any of its subsidiaries and Affiliates any information related to its business or opportunities, including acquisition opportunities, or to refrain from or in any respect to be restricted in competing against the Company or any of its subsidiaries or Affiliates in any such business or as to any such opportunities.

Board of Directors and Other Matters. (a) From and after the date hereof and until the provisions of this Section 5 2 cease to be effective, each holder of Stockholder Shares shall vote all of the voting securities of the Company over which such Person has voting control and shall take all other necessary or desirable actions within his or its control (whether in his or its capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that: (i) the authorized number of directors on the Company's board of directors (the "Board") Board shall be the sum of (x) established at no less than three and (y) the product of (I) the number of directors that the Institutional Investors are entitled to appoint pursuant to (ii)(C) below and (II) twono more than six directors; (ii) the following persons shall be elected to the Board at each election of directors during the term of this Agreement;directors: (A) the Managing Member of EXCO Investors, LLC or, if EXCO Investors, LLC shall have dissolved or liquidated, the Chief Executive Officer of the Company; (B) two representatives designated by holders of a majority of shares of Class A Common Stock owned by the Cerberus Investors (the "Cerberus Directors") from time to time for so long as the Investor Holders own at least 20% of the issued and outstanding shares of Common Stock, or, for so long as the Investor Holders own at least 10% but no less than 20% of the issued one and outstanding shares of Common Stock, one Cerberus Director, provided, that until the next annual meeting of the Company's stockholders following the date of this Agreement, [ ], [ ] and [ ] shall serve as the Directors; provided, further that the number of Cerberus Directors shall be increased by a number equal to the number of directors that the Institutional Investors shall at any time be entitled to appoint pursuant to (C) below; and (C) one representative designated by each Institutional Investor for so long as such Institutional Investor (x) owns at least 50% of such number of shares of Class A Common Stock purchased by such Institutional Investor as of the date hereof and (y) owns at least 5% of the issued and outstanding shares of Common Stock of the Company (the "Institutional Investor Directors"); provided that in no event shall Institutional Investors be permitted to designate more than 3 Institutional Investors Directors; provided, further that if at any time there shall be more than 3 Institutional Investors, then the Institutional Investor Directors shall be three representatives designated by the holders of a majority of the Investor Shares from time to time (the "Investor Directors"), with Ken Xxxxx xxx Kevix Xxxxx xxxving as two of the initial Investor Directors, (B) one representative designated by the holders of a majority of the Vendor Group Shares (the "Vendor Directors"), with Jamex X. Xxxxxxx xxxving as the initial Vendor Director; and (C) the Chief Executive Officer and Chairman of the Company, for so long as they hold those positions; (iii) the composition of the board of directors of each of the Company's Subsidiaries (each, a "Sub Board") shall be approved by the Company, and each of the persons described in Section 2(a)(ii) above shall have the option of serving on each such Sub Board as a member or as an observer; (iv) any committees of the Board or a Sub Board shall be created only upon the approval of a majority of the voting power of the Board, and the majority of each such committee (if any) shall consist of Investor Directors; (v) any director designated hereunder shall be removed from the Board (and thereupon from all Sub Boards and all committees of the Board or any Sub Board) (with or without cause) at the written request of the Person or Persons entitled to designate such director pursuant to subparagraph (ii) above, but only upon such written request and under no other circumstances; and (vi) in the event that any director designated hereunder for any reason ceases to serve as a member of the Board or a Sub Board or any committee thereof during such director's term of office, the resulting vacancy on the Board or such Sub Board or committee shall be filled by a representative designated by the Person or Persons entitled to designate such director pursuant to subparagraph (ii) above. If any party fails to so designate a representative to fill a directorship within 30 days of a vacancy, the election of a person to such directorship shall be accomplished in accordance with the Company's bylaws and applicable law. (b) In lieu of any of the directors whom the Investor or the Vendor Group is entitled to designate pursuant to Section 2(a)(ii) and Section 2(a)(iii), the Investor or the Vendor Group (as the case may be) may designate an observer who shall be treated as a director in all respects except that such observer shall have no voting rights. (c) So long as the Investor holds at least 50% of the Company's Class A Common Stock held by it on the Institutional Investors. During any period when the Company is subject to the reporting requirements of Section 13 or Section 15(d) under the Exchange Act, the provisions of this Section 5(a) will be subject to the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of any stock exchange on which securities of the Company are then listed or traded. (b) From and after the date hereof and until the provisions of this Section 5 cease to be effectiveClosing Date, the Company, in consultation with the Investors, may establish an advisory board consisting 's bylaws shall state (by providing for two classes of up to 5 members that are experts in the areas comprising the Company's business (the "Advisory Board"). The Advisory Board shall meet at such times and places and advise the Company with respect to matters that it may reasonably determine directors or as the Board of Directors of the Company may reasonably request. It is understood otherwise) that the Advisory Board will serve in an advisory capacity to the Board of Directors and the management of the Company, and shall have no ability to bind the Company or direct the management thereof. (c) The Company and the Stockholders agree that the Company will not, nor will it permit any subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) transactions that are at prices and on terms and conditions not less favorable to the Company or such subsidiary than could be obtained on an arm's length basis from unrelated third parties, (ii) transactions between or among the Company and the Company's subsidiaries not involving any other Affiliate, (iii) payment of dividends with respect to its capital stock, (iv) repurchase, redemption, retirement or other acquisition of its shares of its capital stock or securities convertible into or exchangeable for its capital stock pursuant to the terms of agreements existing on the date hereof, (v) payment or prepayment of indebtedness or interest or principal payments when due for such indebtedness, (vi) pursuant to employment agreements existing on the date hereof or approved by the Board of Directors of the Company, (vii) customary fees paid to members of the Board of Directors of the Company and its subsidiaries or (viii) transactions approved by the Board of Directors of the Company, including by two votes of the Investor Directors; provided that Directors shall constitute a majority for all purposes, and the terms affirmative vote of this Section 5(c) at least one Investor Director shall not apply to loans made by the Company to employees that constitute Affiliates on the date hereof, the proceeds be required for valid board approval of which are used to purchase Shares of Common Stock of the Companyany corporate action. (d) Each The Company shall pay the reasonable out-of-pocket expenses incurred by each director and observer named hereunder in connection with attending the meetings of the Other Stockholders Board, any Sub Board and any committee thereof. (e) The provisions of this Section 2 will terminate upon the Company completion of a Qualified Public Offering or an Approved Sale. (if) acknowledges In the event that the Investors and their Affiliates own, and from time to time may acquire and own, one or more subsidiaries or investments in one or more other entities (such subsidiaries and entities, collectively, "Cerberus Related Companies") that are direct competitors of, or that otherwise may have interests that do or could conflict with those of the Company or a subsidiary or Affiliate any provision of the Company, and (ii) agree that (A) the enjoyment, exercise and enforcement 's bylaws or certificate of the rights, interests, privileges, powers and benefits granted or available to the Investors and their Affiliates under or in respect incorporation is inconsistent with any provision of the Transactions, the Purchase Agreementthis section, this Agreement governs and the other Ancillary Documents Stockholders shall not take such action as may be in any manner reduced, diminished, affected or impaired, and the obligations of the Investors or its Affiliates or subsidiaries under or in respect of the Transactions, the Purchase Agreement, this Agreement or the other Ancillary Documents shall not be in any manner augmented or increased, by reason of any act, circumstance, occurrence or event arising from or in any respect relating necessary to (x) the ownership by the Investors or any of their Affiliates or subsidiaries of any interest in any Cerberus Related Company, (y) the affiliation of any Cerberus Related Company with the Investors or any of their Affiliates or subsidiaries or (z) any action taken or omitted by the Investors or any of their Affiliates or subsidiaries in respect of any Cerberus Related Company or in respect of any Affiliate or subsidiary of any Investor that directly or indirectly owns any interest in any Cerberus Related Company, (B) neither any Investor nor any of their Affiliates or subsidiaries is, and none shall by reason of such ownership or amend any such action become, subject provision in the Company's bylaws or certificate of incorporation to any fiduciary duty to the Company or any of its subsidiaries or Affiliates, (C) none of the duties imposed on the Investors or any of their Affiliates, whether by contract or law, do or shall limit or impair the right of the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) lawfully to compete with the Company and its Affiliates and subsidiaries as if the Investors or any said Affiliate or subsidiary were not a party to this Agreement, the Purchase Agreement or the other Ancillary Documents and (D) the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) are not and shall not be obligated to disclose to the Company or any of its subsidiaries and Affiliates any information related to its business or opportunities, including acquisition opportunities, or to refrain from or in any respect to be restricted in competing against the Company or any of its subsidiaries or Affiliates in any remedy such business or as to any such opportunitiesinconsistency.

Board of Directors and Other Matters. (a) From and after the date hereof and until the provisions of this Section 5 cease to be effective, each Stockholder shall vote all of the voting securities of the Company over which such Person has voting control and shall take all other necessary or desirable actions within his or its control (whether in his or its capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings; provided that nothing contained herein shall obviate the fiduciary duties of such Person, whether in his capacity as a director, member of a Board committee or officer of the Company or otherwise), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that: (i) the authorized number of directors on the Company's board of directors (the "Board") Board shall be the sum of (x) three and (y) the product of (I) the number of directors that the Institutional Investors (it being understood that for purposes of this Section 5, the Institutional Investors shall not include State Street Research and Management Company) are entitled to appoint pursuant to (ii)(C) below and (II) two; (ii) the following persons shall be elected to the Board at each election of directors during the term of this Agreement; (A) the Managing Member of EXCO Investors, LLC or, if EXCO Investors, LLC shall have dissolved or liquidated, the Chief Executive Officer of the Company; (B) two representatives designated by holders of a majority of shares of Class A Common Stock owned by the Cerberus Investors (the "Cerberus Directors") from time to time for so long as the Investor Holders Cerberus Investors own at least 20% of the issued and outstanding shares of Common Stock, or, for so long as the Investor Holders Cerberus Investors own at least 10% but less than 20% of the issued and outstanding shares of Common Stock, one Cerberus Director, provided, that until the next annual meeting of the Company's stockholders following the date of this Agreement, [ ], [ ] and [ ] shall serve as the Directors; provided, further that the number of Cerberus Directors shall be increased by a number equal to the number of directors that the Institutional Investors shall at any time be entitled to appoint pursuant to (C) below; and (C) one representative designated by each Institutional Investor for so long as such Institutional Investor (x) owns and their Affiliates own at least 5070% of such number of shares of Class A Common Stock purchased by such Institutional Investor as of the date hereof and (y) owns at least 5% of the issued and outstanding shares of Common Stock of the Company (the "Institutional Investor Directors"); provided that in no event shall Institutional Investors be permitted to designate more than 3 Institutional Investors DirectorsDirectors in the aggregate; provided, further that if at no transferee of any time there Institutional Investor shall be more than 3 Institutional Investors, then have any rights pursuant to this Section 5. The Company and the Stockholders agree that no meeting of the Board shall occur unless all required prior notices of such meetings are given in a timely manner to each of the Institutional Investor Directors shall be designated by the holders of a majority of the Class A Common Stock held by the Institutional InvestorsDirectors. During any period when the Company is subject to the reporting requirements of Section 13 or Section 15(d) under the Exchange Act, the provisions of this Section 5(a) will be subject to the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of any stock exchange on which securities of the Company are then listed or traded. (b) From (i) So long as there are Institutional Investor Directors on the Board, from and after the date hereof and until the provisions of this Section 5 cease to be effective, the Company, in consultation with the Investors, may establish an advisory board consisting of up following matters shall not be delegated to 5 members that are experts in the areas comprising the Company's business (the "Advisory Board"). The Advisory Board shall meet at such times and places and advise the Company with respect to matters that it may reasonably determine or as the Board of Directors of the Company may reasonably request. It is understood that the Advisory Board will serve in an advisory capacity to the Board of Directors and the management of the Company, and shall have no ability to bind the Company or direct the management thereof. (c) The Company and the Stockholders agree that the Company will not, nor will it permit any subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) transactions that are at prices and on terms and conditions not less favorable to the Company or such subsidiary than could be obtained on an arm's length basis from unrelated third parties, (ii) transactions between or among the Company and the Company's subsidiaries not involving any other Affiliate, (iii) payment of dividends with respect to its capital stock, (iv) repurchase, redemption, retirement or other acquisition of its shares of its capital stock or securities convertible into or exchangeable for its capital stock pursuant to the terms of agreements existing on the date hereof, (v) payment or prepayment of indebtedness or interest or principal payments when due for such indebtedness, (vi) pursuant to employment agreements existing on the date hereof or approved by the Board of Directors of the Company, (vii) customary fees paid to members a committee of the Board without the consent of such Institutional Investor Directors but shall be subject to the approval of the Company and its subsidiaries or (viii) transactions approved Board to the extent required by the Board applicable law: • issuance of Directors of the Company, including by two of the Investor Directors; provided that the terms of this Section 5(c) shall not apply to loans made by the Company to employees that constitute Affiliates on the date hereof, the proceeds of which are used to purchase Additional Shares of Common Stock of Stock, including the Company. (d) Each of the Other Stockholders and the Company (i) acknowledges that the Investors and their Affiliates own, and from time to time may acquire and own, one or more subsidiaries or investments in one or more other entities (such subsidiaries and entities, collectively, "Cerberus Related Companies") that are direct competitors of, or that otherwise may have interests that do or could conflict with those of the Company or a subsidiary or Affiliate of the Company, and (ii) agree that (A) the enjoyment, exercise and enforcement of the rights, interests, privileges, powers and benefits granted or available to the Investors and their Affiliates under or in respect of the Transactions, the Purchase Agreement, this Agreement and the other Ancillary Documents shall not be in any manner reduced, diminished, affected or impaired, and the obligations of the Investors or its Affiliates or subsidiaries under or in respect of the Transactions, the Purchase Agreement, this Agreement or the other Ancillary Documents shall not be in any manner augmented or increased, by reason designation of any act, circumstance, occurrence class or event arising from or series of preferred stock in any respect relating to (x) the ownership by the Investors or any of their Affiliates or subsidiaries of any interest in any Cerberus Related Company, (y) the affiliation of any Cerberus Related Company accordance with the Investors Certificate of Incorporation; • any merger or any of their Affiliates or subsidiaries or (z) any action taken or omitted by the Investors or any of their Affiliates or subsidiaries in respect of any Cerberus Related Company or in respect of any Affiliate or subsidiary of any Investor that directly or indirectly owns any interest in any Cerberus Related Company, (B) neither any Investor nor any of their Affiliates or subsidiaries is, and none shall by reason of such ownership or any such action become, subject to any fiduciary duty to consolidation involving the Company or any of its subsidiaries (other than a merger or consolidation of one subsidiary with another subsidiary); • the incurrence of indebtedness for borrowed money not contemplated by the Approved Budget (as defined below) and involving $2,500,000.00 or more; • transactions with Affiliates, (C) none ; • sales or acquisitions of assets involving consideration in excess of $2,500,000.00; • compensation of senior management; • approval of the duties imposed on Company's business plan and annual budget (as so approved by the Investors or any of their Affiliates, whether by contract or law, do or shall limit or impair the right of the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) lawfully to compete with the Company and its Affiliates and subsidiaries as if the Investors or any said Affiliate or subsidiary were not a party to this AgreementBoard, the Purchase Agreement or the other Ancillary Documents and (D) the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) are not and shall not be obligated to disclose to the Company or any of its subsidiaries and Affiliates any information related to its business or opportunities, including acquisition opportunities, or to refrain from or in any respect to be restricted in competing against the Company or any of its subsidiaries or Affiliates in any such business or as to any such opportunities."Approved Budget"); •

Board of Directors and Other Matters. (a) From and after the date hereof and until the provisions of this Section 5 1 cease to be effective, each holder of Stockholder Shares shall vote all of the voting securities of the Company over which such Person has voting control and shall take all other necessary or desirable actions within his or its control (whether in his or its capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that: (i) the authorized number of directors on the Company's board of directors (the "Board") Board shall be the sum of (x) three and (y) the product of (I) the number of directors that the Institutional Investors are entitled to appoint pursuant to (ii)(C) below and (II) twoestablished at seven directors; (ii) the following persons shall be elected to the Board at each election of directors during the term of this Agreement;directors: 2 (A) the Managing Member of EXCO Investors, LLC or, if EXCO Investors, LLC shall have dissolved or liquidated, the Chief Executive Officer of the Company; (B) two up to four representatives designated by holders of a majority of shares of Class A Common Stock owned by the Cerberus Investors (the "Cerberus Directors") from time to time for so long as the Investor Holders own at least 20% of the issued and outstanding shares of Common Stock, or, for so long as the Investor Holders own at least 10% but less than 20% of the issued and outstanding shares of Common Stock, one Cerberus Director, provided, that until the next annual meeting of the Company's stockholders following the date of this Agreement, [ ], [ ] and [ ] shall serve as the Directors; provided, further that the number of Cerberus Directors shall be increased by a number equal to the number of directors that the Institutional Investors shall at any time be entitled to appoint pursuant to (C) below; and (C) one representative designated by each Institutional Investor for so long as such Institutional Investor (x) owns at least 50% of such number of shares of Class A Common Stock purchased by such Institutional Investor as of the date hereof and (y) owns at least 5% of the issued and outstanding shares of Common Stock of the Company (the "Institutional Investor Directors"); provided that in no event shall Institutional Investors be permitted to designate more than 3 Institutional Investors Directors; provided, further that if at any time there shall be more than 3 Institutional Investors, then the Institutional Investor Directors shall be designated by the holders of a majority of the Class A Common Stock held Investor Shares from time to time (the "Investor Directors"), with Avy H. Sxxxx, Xxnixx Xxxx xxx Samuxx Xxxxx xxxving as the initial Investor Directors; (B) one representative designated by Dods (the "Dods Director"), with Dods serving as the initial Dods Director, for so long as Dods and his Permitted Transferees collectively hold directly or indirectly more than 25% of the Stockholder Shares issued to DM pursuant to the DM Securities Purchase Agreement, after which time such position shall be filled by the Institutional Investors. During any period when holders of a majority of the Company is subject Investor Shares from time to time (in which case such director shall be deemed to be an Investor Director and shall no longer be deemed to be the Dods Director); (C) one representative designated by Meyex (xxe "Meyex Director"), with Meyex xxxving as the initial Meyex Xxxector, for so long as Meyex xxx his Permitted Transferees collectively hold directly or indirectly more than 25% of the Stockholder Shares issued to DM pursuant to the reporting requirements DM Securities Purchase Agreement, after which time such position shall be filled by the holders of Section 13 a majority of the Investor Shares from time to time (in which case such director shall be deemed to be an Investor Director and shall no longer be deemed to be the Meyex Xxxector); and (D) one representative designated by Chunx (xxe "Chunx Director"), with Chunx xxxving as the initial Chunx Xxxector, for so long as Chunx xxx his Permitted Transferees collectively hold directly or Section 15(dindirectly a majority of the Stockholder Shares issued to RCL, GSI and HIL pursuant to the Acquisition Agreement, after which time such position shall be filled by the holders of a majority of the Investor Shares from time to time (in which case such director shall be deemed to be an Investor Director and shall no longer be deemed to be the Chunx Xxxector); (iii) the composition of the board of directors of each of the Company's Subsidiaries (each, a "Sub Board") shall be the same as that of the Board; (iv) any committees of the Board or a Sub Board shall be created only upon the approval of at least a majority of the Board; (v) any director designated hereunder shall be removed from the Board (and thereupon from all Sub Boards and all committees of the Board or any Sub Board) (with or without cause) at the written request of the Person or Persons entitled to designate such director pursuant to (ii) above, but only upon such written request and under no other circumstances; and (vi) in the Exchange Actevent that any director designated hereunder for any reason ceases to serve as a member of the Board or a Sub Board or any committee thereof during such director's term of office, the provisions of this Section 5(aresulting vacancy on the Board or such Sub Board or committee shall be filled by a representative designated by the Person or Persons entitled to designate such director pursuant to subparagraph (ii) will be subject to the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of any stock exchange on which securities of the Company are then listed or tradedabove. (b) From The Company shall give each of Nassau and after Bairx (xx long as such Stockholder holds any Stockholder Shares) notice of each meeting of its board of directors and each committee thereof at the date hereof same time and until in the provisions same manner as notice is given to the directors, and the Company shall permit a representative of this Section 5 cease each such Person to attend as an observer all meetings of its board of directors and all committees thereof. Each representative shall be effectiveentitled to receive all written materials and other information (including, without limitation, copies of meeting minutes) given to directors in connection with such meetings at the same time such materials and information are given to the directors. If the Company proposes to take any action by written consent in lieu of a meeting of its board of directors or of any committee thereof, the Company, in consultation with Company shall give notice thereof to each such Person at the Investors, may establish an advisory board consisting of up to 5 members that are experts same time and in the areas comprising the Company's business (the "Advisory Board"). The Advisory Board shall meet at such times and places and advise the Company with respect to matters that it may reasonably determine or same manner as the Board of Directors of the Company may reasonably request. It notice is understood that the Advisory Board will serve in an advisory capacity given to the Board of Directors and the management of the Company, and shall have no ability to bind the Company or direct the management thereofdirectors. (c) The Company and shall pay the Stockholders agree that reasonable out-of-pocket expenses incurred by each director named hereunder in connection with attending the Company will not, nor will it permit any subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions withmeetings of the Board, any of its Affiliates, except Sub Board and any committee thereof. (id) transactions that are at prices and on terms and conditions not less favorable to the Company or such subsidiary than could be obtained on an arm's length basis from unrelated third parties, (ii) transactions between or among the Company and the Company's subsidiaries not involving any other Affiliate, (iii) payment of dividends with respect to its capital stock, (iv) repurchase, redemption, retirement or other acquisition of its shares of its capital stock or securities convertible into or exchangeable for its capital stock pursuant to the terms of agreements existing on the date hereof, (v) payment or prepayment of indebtedness or interest or principal payments when due for such indebtedness, (vi) pursuant to employment agreements existing on the date hereof or approved by the Board of Directors of the Company, (vii) customary fees paid to members of the Board of Directors of the Company and its subsidiaries or (viii) transactions approved by the Board of Directors of the Company, including by two of the Investor Directors; provided that the terms The provisions of this Section 5(c) shall not apply to loans made by 1 will terminate upon the Company to employees that constitute Affiliates on the date hereof, the proceeds completion of which are used to purchase Shares of Common Stock a Qualified Public Offering or a Sale of the Company. (de) Each If any party fails to designate a representative to fill a directorship pursuant to the terms of this Section 1, the Other Stockholders and the Company (i) acknowledges that the Investors and their Affiliates own, and from time election of a person to time may acquire and own, one or more subsidiaries or investments such directorship shall be accomplished in one or more other entities (such subsidiaries and entities, collectively, "Cerberus Related Companies") that are direct competitors of, or that otherwise may have interests that do or could conflict accordance with those of the Company or a subsidiary or Affiliate of the Company, 's bylaws and (ii) agree that (A) the enjoyment, exercise and enforcement of the rights, interests, privileges, powers and benefits granted or available to the Investors and their Affiliates under or in respect of the Transactions, the Purchase Agreement, this Agreement and the other Ancillary Documents shall not be in any manner reduced, diminished, affected or impaired, and the obligations of the Investors or its Affiliates or subsidiaries under or in respect of the Transactions, the Purchase Agreement, this Agreement or the other Ancillary Documents shall not be in any manner augmented or increased, by reason of any act, circumstance, occurrence or event arising from or in any respect relating to (x) the ownership by the Investors or any of their Affiliates or subsidiaries of any interest in any Cerberus Related Company, (y) the affiliation of any Cerberus Related Company with the Investors or any of their Affiliates or subsidiaries or (z) any action taken or omitted by the Investors or any of their Affiliates or subsidiaries in respect of any Cerberus Related Company or in respect of any Affiliate or subsidiary of any Investor that directly or indirectly owns any interest in any Cerberus Related Company, (B) neither any Investor nor any of their Affiliates or subsidiaries is, and none shall by reason of such ownership or any such action become, subject to any fiduciary duty to the Company or any of its subsidiaries or Affiliates, (C) none of the duties imposed on the Investors or any of their Affiliates, whether by contract or applicable law, do or shall limit or impair the right of the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) lawfully to compete with the Company and its Affiliates and subsidiaries as if the Investors or any said Affiliate or subsidiary were not a party to this Agreement, the Purchase Agreement or the other Ancillary Documents and (D) the Investors and their Affiliates and subsidiaries (including each Cerberus Related Company) are not and shall not be obligated to disclose to the Company or any of its subsidiaries and Affiliates any information related to its business or opportunities, including acquisition opportunities, or to refrain from or in any respect to be restricted in competing against the Company or any of its subsidiaries or Affiliates in any such business or as to any such opportunities.