Common use of Board of Managers Clause in Contracts

Board of Managers. The management of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Majority Member Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or resignation, or (B) the appointment of such Manager’s successor pursuant to the provisions of Section 6.01. Any Manager may resign at any time by Xxxxxxxxx (or its successor or permitted assign) giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President In the event of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (c) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects X. X. Xxxxxx, Vice President may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (d) Meetings of Cyprus the Board of Managers may be held at any time and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on at any location specified in the notice thereof in such place within or without the State of Delaware. A majority of the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (e) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (f) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (g) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”h) which shall initially engage Xxxxxxxxx Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (i) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (j) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation.

Board of Managers. The management (a) From and after the date hereof, and until the provisions of this Section 1 cease to be effective, each holder of Company Units shall vote all of such holder’s Company Units that are voting Company Units and any other voting securities of the Company is vested over which such holder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a Unitholder, member, Manager, member of any committee of the Board, 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 member meetings) so that: (i) the authorized number of Managers consisting shall be initially established at seven (7) Managers and shall thereafter be comprised of four such number of Managers as shall be determined from time to time by the Board; (4ii) the following individuals acting as Managers shall be elected to the Board: (individually a A) two (2) representatives designated by MDCP-A, who shall initially be Xxxxx X. Xxxxxx and Xxxxxxx Xxxxxx (the “ManagerMDCP-A Managers”); (B) two (2) representatives designated by MDCP-C, who shall initially be Xxxxxx X. Xxxxxxx and Xxxxx Xxxxx (the “MDCP-C Managers” and collectively with the MDCP-A Managers, the “MDCP Managers”); (C) the Chief Executive Officer of the Company, who shall initially be Xxxxxx Xxxx; and (D) two (2) selected independent representatives designated by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers who shall initially be Xxxxx Xxxxxxxx and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement Xxxxx Xxxxxx (the “Management AgreementIndependent Managers”). (iii) which shall initially engage Xxxxxxxxx to be unless otherwise determined by the manager Board, the composition of the board of directors or managers of each of the Company’s daySubsidiaries (a “Sub Board”) shall be the same as that of the Board; (iv) at MDCP’s option, MDCP Managers shall constitute a majority of any committees of the Board or a Sub Board; (v) the removal from the Board or a Sub Board of any MDCP-toA Manager shall be at MDCP-day operations A’s written request, but only upon such written request and under no other circumstances; (vi) the removal from the Board or a Sub Board of any MDCP-C Manager shall be at MDCP-C’s written request, but only upon such written request and under no other circumstances; (vii) in the event that any representative designated by MDCP-A or MDCP-C under clauses (ii)(A) or (ii)(B) above, as applicable, ceases to serve as a member of the Board (or a Sub Board) during his or her term of office, the resulting vacancy on the Board or the Sub Board shall be filled by a representative designated by MDCP-A or MDCP-C as provided in clauses (ii)(A) and (ii)(B) above, respectively; and (viii) in the event that any Independent Manager ceases to serve as a member of the Board (or a Sub Board) during his or her term of office, the resulting vacancy on the Board or the Sub Board may be filled by a representative designated by the Board, or if the Board does not decide to appoint a replacement Independent Manager, may remain vacant. (b) The Company shall pay the reasonable out-of-pocket expenses incurred by each Manager for any expenses incurred in connection with attending the meetings of the Board, any Sub Board and any committee thereof. So long as any MDCP Manager serves on the Board and for five years thereafter, the Company shall maintain directors and officers indemnity insurance coverage regarding all Managers reasonably satisfactory to MDCP and the development Limited Liability Company Agreement shall provide for indemnification and exculpation of Managers to the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant fullest extent permitted under applicable law. (c) If any party fails to designate a representative to fill a managership pursuant to the terms of this Agreement Xxxxxxxxx Section 1, the election of an individual to such managership shall serve as be accomplished in accordance with the Managing Member until the occurrence of Limited Liability Company Agreement, subject to such party’s right at any time thereafter to designate a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authorityrepresentative hereunder, in its sole discretionwhich case any such individual elected pursuant to the Limited Liability Company Agreement shall cease to be a Manager. (d) In order to secure the obligations of each Unitholder who now or hereafter holds any voting securities in the Company to vote such Person’s Company Units in accordance with the provisions of this Section 1 and Section 4, each Unitholder hereby appoints MDCP as such Unitholder’s true and lawful proxy and attorney-in-fact, with full power of substitution, to assume vote all of such Unitholder’s Company Units for: (i) a Sale of the position of Managing Member without consent or action from any Company and all such other Member or matters as expressly provided for in Section 4, and (ii) the Board election and/or removal of Managers and all such other matters as expressly provided for in this Section 1. MDCP may exercise the irrevocable proxy granted to it hereunder by any Unitholder at any time any such Unitholder fails to comply with the provisions of this Agreement. The proxies and powers granted by each such Unitholder pursuant to this Section 1(e) are coupled with an interest and are given to secure the performance of such Unitholder’s obligations under the provisions of this Section 1 and Section 4. Such proxies and powers shall also have be irrevocable until termination of this Section 1 and Section 4 and shall survive the authoritydeath, incompetency, disability, bankruptcy or dissolution of each Unitholder and the subsequent holder(s) of such Unitholder’s Company Units. No Unitholder shall grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement. (e) The provisions of this Section 1 shall terminate automatically and shall be of no further force and effect upon the earlier to occur of the consummation of a Sale of the Company (unless the Sale of the Company is structured as a sale of assets, in its sole discretion, to assume which case this Section 1 shall terminate upon the position liquidation of manager under the Management Agreement, both elections being entirely independent from Company) or the otherconsummation of an IPO.

Board of Managers. (a) The management Company and the Members shall take such actions as may be required to ensure that the number of managers constituting the Board is at all times five (5). A Manager (and/or any successor or replacement) may, but shall not be required to, be a Member of the Company is vested Company. The Managers will be appointed or elected in a Board of Managers consisting initially of four the following manner: (4i) individuals acting as AGP Partners, LLC shall have the right to appoint three (3) Managers (individually a “Manager” and collectively the “Common Managers”) and to remove and replace such Common Managers from time to time, who shall initially be Xxxxx Xxxxxx, Xxxxx Xxxx and Xxxxx Xxxxxxx. Each Common Manager then in office shall be entitled to cast one (1) vote, provided, however, that Xxxxx Xxxxxx, for so long as he is a Manager, or, in the event that Xxxxx Xxxxxx is no longer a Manager, AGP Partners, LLC’s designee shall be entitled to cast a tie-breaking Board vote in the event of a deadlock. (ii) The holders of a majority of the CompanyPreferred Units, shall have the right to appoint two (2) selected by Xxxxxxxxx Managers (or its successor or permitted assign) the “Preferred Managers”), and the other two (2) selected by Cyprus (or its successor or permitted assign). Initiallyto remove and replace such Preferred Managers from time to time, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote or consent of all a majority of the Members. Except as set forth in Section 3.2 and Section 7.12(e)Preferred Units, the Board of which Preferred Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) initially be Xxxxx Xxxxx and Xxxxx Xxxxxx. Each Preferred Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager then in office shall have be entitled to cast one (1) vote. No Manager shall be required to devote all of Notwithstanding the foregoing, at such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as that AGP Partners, LLC is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize no longer the Managing Member and/or all or less than Member, all of the Managers shall be appointed by the Members voting as a single class, and such Members shall have the right to execute remove and replace such Managers from time to time. (b) The Board shall maintain a schedule of all Managers with their respective mailing addresses, and shall update the schedule upon the removal or replacement of any Manager in accordance with this Section 8.02 or Section 8.03. (c) The following is a list of material decisions (“Material Decisions”) that shall require an affirmative vote of the Requisite Managers: (i) a merger, consolidation, conversion or other similar transaction involving the Company or any of the Company Subsidiaries; (ii) the sale, lease or conveyance of all or substantially all of the assets of the Company and all documents necessary the Company Subsidiaries on a consolidated basis; (iii) any material acquisition by the Company or convenient any Company Subsidiary, or any agreement to carry out those actions approved engage in such material acquisition or the acquisition by the Company or any Company Subsidiary of an ownership interest in any Person; (iv) the creation of Subsidiaries, or entering into a joint venture, partnership or limited liability company agreement by the Company or any of its Subsidiaries; (v) any agreement or series of related agreements of the Company or any of its Subsidiaries for compensation and/or benefits of any Manager, Managing Member, Officer, or other executive of the Company or any other agreement for compensation and/or benefits with a total annual cost to the Company of at least $100,000; (vi) any action that results in a liquidation or dissolution of the Company or any wholly-owned Company Subsidiary; (vii) any transaction between the Company or a Subsidiary and any Affiliate of the Company or its Subsidiary, excluding transactions between the Company and wholly-owned Company Subsidiaries, provided, however, that in the event of such transaction whereby a conflict of interest exists with respect to any Requisite Managers of the Company, then such transaction shall require the consent of a majority of the Managersoutstanding Common Units, If the Board of Managers approves executing a document or agreement without specifically authorizing signersReal Estate Preferred Units, then the Managing Member Series Seed Preferred Units and each Series Seed+ Preferred Units of the Managers, acting individually, may execute such document Company voting as separate classes; (viii) issuance of additional Units or agreement on behalf the creation of new classes of Units by the Company or a Subsidiary; (ix) increasing the size of the Company. The Board; (x) confessing any judgment against the Company shall enter into or a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx Subsidiary or consenting to be the manager a receiver of the Company’s day-to-day operations and the development assets of the ProjectCompany or a Subsidiary; or (xi) incur any indebtedness, pledge, or grant liens on any assets, or guarantee, assume, endorse, or otherwise become responsible for the obligations of any other Person in accordance with the terms and conditions contained excess of $100,000 in a single transaction or series of related transactions, or in excess of $200,000 in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed aggregate at any time outstanding by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent Company or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the othera Subsidiary.

Board of Managers. The management business of the Company is vested in a will be managed by the Board of Managers, and the Persons constituting the Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively will be the “Managers”managers” of the Company for all purposes under the Act. (a) The Board of Managers shall have full and exclusive authority, power and discretion to manage and control the business, affairs and properties of the Company, two to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of Company business, unless otherwise provided in the Act, the Certificate or this Agreement. Except as expressly provided herein, the vote of a Majority of the Board shall be required to approve or effect any action or transaction on behalf of the Company. (2b) selected The Board of Managers will initially consist of seven (7) members (such members, along with any other Persons appointed from time to time, the “Board Members”). The number of Board Members may be increased from time to time by Xxxxxxxxx resolution of the Board of Managers. The initial Board Members shall be (i) Xxxxxx X. Xxxxxx, (ii) Xxxxx Xxxxxx, (iii) Xx. Xxxxxx Xxxxx, (iv) Xx. Xxxxx Xxxxxxxxx, (v) Xxxxx Xxxxxxxx, (vi) Xx. Xxxxxxxxxx Xxxxxx and (vii) Dr. Xxxxxxx Xxxxxxxx. (c) At all times at least a majority of the Board Members shall be “Independent Directors” as defined under NASDAQ Rule 5605(a)(2), as amended. (d) Any Board Member may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its successor receipt by the remaining Board Members. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. (e) Any Board Member, other than Xx. Xxxxxx X. Waksal for so long as he continues to beneficially own or permitted assigncontrol at least ten percent (10%) and of the outstanding equity of the Company, may be removed by at any time by a majority vote of the other two Board Members. In the event any Board Member is convicted of a felony involving moral turpitude, fraud, theft or dishonesty, if such Board Member is not removed by the Board of Managers within thirty (230) selected days, such Board Member may be removed by Cyprus a Special Approval Vote. (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President f) In the event of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives a vacancy on the Board of Managers and Cyprus selects X. X. Xxxxxxdue to the resignation or removal of any Board Member, Vice President such vacancy may only be filled by a majority vote of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, Any Board Member position to be filled by reason of an increase in the decisions number of Board Members may be filled by the Person selected by the vote of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Managers. (g) Each Board Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize reasonably determines may be necessary or appropriate to manage and operate the Managing Company. (h) Each Board Member and/or all or less than all of has the Managers power and authority to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managersdeliver, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (, all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager acquisition, mortgage or disposition of the Company’s day-to-day operations property; assignments; bills of sale; leases; partnership agreements; and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member instruments or documents; provided that if the Board of Managers consists of more than one Person, any such documents have been authorized and approved by a Majority of the Board. (i) The Board of Managers may delegate all or part of its authority to committees or the Board or officers of the Company whom the Board of Managers may appoint from time to time, including, without limitation, officers possessing the titles of President, Vice President, Treasurer and Secretary. (j) All Board Members shall also have owe the authority, in its sole discretion, same fiduciary duties to assume the position Company and each of manager the Members as a director of a corporation organized under the Management Agreement, both elections being entirely independent from the otherState of Delaware owes to such corporation and its stockholders.

Board of Managers. The management (a) Except as otherwise provided in this Agreement, the overall business, property and affairs of the Company is vested in shall be managed under the direction of a Board of Managers consisting initially (the "Board of four (4Managers" and each, a "Manager") individuals acting appointed by the Members as Managers (individually a “Manager” provided in Section 2.1(c) below; provided, however, that the day-to-day operations of the Company shall be conducted and collectively managed by the “Managers”) respective officers of the Company, two . (2b) selected by Xxxxxxxxx (or its successor or permitted assign) and Without limiting the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President generality of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e2.1(a), the Board of Managers shall act solely upon have the majority consent of all following powers that may, subject to any limitations set forth in this Agreement or the LLCA, be delegated to the officers of the Company: (i) To set the overall policy and vision of the Company in accordance with this Agreement; (ii) To adopt an annual budget for the Company (the "Budget"); (iii) To approve expenditures by the Company not provided for in the Budget in amounts in excess of $100,000 individually, and $1,000,000 in the aggregate, during any Fiscal Year; (iv) To approve the issuance or incurrence of Debt by the Company that is inconsistent with the Budget; (v) To approve any transaction between the Company and any Member or Affiliate of any Member; and (vi) To do all such other acts as shall be authorized in this Agreement or by the Members in writing from time to time and to do all such other acts in connection with the Company that have not been delegated to other Persons. (c) (i) The Board of Managers shall consist of seven Managers. Until the completion of the five-year period commencing on the date hereof, the Board of Managers shall initially consist of Xxxxxx Xxxxxxxx, two Managers appointed by BioValve, two Managers appointed by Paramount (the two Managers appointed by Paramount and the two Managers appointed by BioValve pursuant to this Section 2.1(c)(i) shall be sometimes referred to herein as the "Appointed Managers"), and two independent Managers mutually chosen and agreed upon by Paramount and BioValve (the "Independent Managers"). Following the completion of such five-year period, the Board of Managers shall consist of (i) two Independent Managers (selected as described in the immediately preceding sentence) and (ii) five Managers who shall be appointed as follows: Paramount shall have the right to appoint that number of Managers equal to its Percentage Interest of such five Appointed Managers, which requires an affirmative vote rounded to the nearest whole number and BioValve shall have the right to appoint the balance of at least three (3) such five Managers; provided that until such time that BTI, BioValve and Xxxxxx Xxxxxxxx together hold 15% or less of the four Membership Units, BioValve shall have the right to appoint not less than one Manager. (4ii) ManagersEach Manager must be willing and able to serve on the board of directors of Paramount (if so requested by Paramount). If a Manager other than Xxxxxx Xxxxxxxx (after being so requested) is unwilling or unable to serve on the Paramount board of directors, including resigns from the affirmative vote Paramount board of directors or declines to stand for election or re-election to the Paramount board of directors, the Member that appointed such Manager (or Paramount and BioValve in the case of an Independent Manager) shall, at least one the request of Paramount, promptly remove and replace such Manager; provided that whether or not Xxxxxx Xxxxxxxx may continue to serve as a Manager on the Board of Managers in such event shall be determined pursuant to the terms of Section 2.1(f). (1iii) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Each Manager shall have one vote on all matters to be decided by the Board of Managers. (1iv) vote. No Manager In addition to the Managers, each of Paramount and BioValve shall have the right to appoint one non-voting observer to the Board of Managers (an "Observer") who shall be required entitled to devote all attend the meetings of such the Board of Managers. In no event shall an Observer be considered or deemed to be a "Manager’s time " (as that term is used in this Agreement) and the Observers shall not have any right to vote on, consent to or business efforts to the affairs otherwise approve any activity or policy of the Company but shall devote so much or any activity or policy taken or adopted by the Members or the Board of Managers with respect to the Company. (d) An Appointed Manager or Observer may be removed at any time, with or without cause, by the written notice of the Member that appointed such Appointed Manager or Observer, delivered to the Company, notifying of such Manager’s time removal and attention appointing the Person who shall fill the position of the removed Appointed Manager or Observer. An Independent Manager may be removed at any time, with or without cause, by a written notice executed by both Paramount and BioValve, delivered to the Company as is reasonably necessary Company, notifying of such removal and advisable to manage appointing the affairs Person who shall fill the position of the Company removed Independent Manager. (e) In the event any Appointed Manager or Observer dies or is unwilling or unable to serve in the appointed capacity, the Member that appointed such Appointed Manager or Observer shall promptly appoint a successor to such Appointed Manager or Observer. In the event Xxxxxx Xxxxxxxx dies or is unwilling to serve as a Manager, BioValve shall promptly appoint his successor. In the event any Independent Manager dies or is unwilling or unable to serve as a Manager, then Paramount and BioValve shall mutually choose and agree upon a successor to such Independent Manager. (f) The Board of Managers shall have a Chairman (the "Chairman") who shall be appointed by BioValve. BioValve hereby appoints Xxxxxx Xxxxxxxx as the initial Chairman of the Board of Managers; provided that if (i) Xxxxxx Xxxxxxxx (after being so requested by Paramount) is unwilling to serve as Chairman of the Paramount board of directors, then Xxxxxx Xxxxxxxx may no longer serve as Chairman, and (ii) if Xxxxxx Xxxxxxxx (after being so requested by Paramount) is unwilling to serve as a director on the Paramount board of directors, resigns from the Paramount board of directors or declines to stand for election or re-election to the best advantage Paramount board of directors or if Xxxxxx Xxxxxxxx'x employment with the Company is properly terminated for "cause" (as defined in the then-current employment agreement between Xxxxxx Xxxxxxxx and the Company), then Xxxxxx Xxxxxxxx may no longer serve as the Chairman or as a Manager on the Board of Managers. For the purposes of this Section 2.1(f), the term "unwilling" shall be deemed to include being prevented from serving on the Paramount board of directors by anything within Xxxxxx Xxxxxxxx'x reasonable control. (g) The Board of Managers shall hold regular meetings no less frequently than once every fiscal quarter and the Chairman shall establish meeting times, dates and places and adopt rules or procedures consistent with the terms of this Agreement. Unless otherwise approved by the Chairman, each regular meeting of the Board of Managers will be held at the Company. The Managing Member is hereby authorized to execute, in such capacity, 's principal place of business. (h) At all documents and agreements that do not require consent meetings of the Board of Managers, For documents the presence of at least a majority of the Board of Managers (including, until the completion of the five-year period commencing on the date hereof, at least one Paramount Appointed Manager and agreements that require such consentone BioValve Appointed Manager) shall be necessary to constitute a quorum for the transaction of business. Except as otherwise provided in this Agreement, the Board of Managers may, in connection with its approval thereof, authorize shall act by the Managing Member and/or all or less than all majority vote of the Managers to execute at any meeting at which a quorum is present; provided, however, that the authorization of any contract or transaction between the Company and all documents necessary one or convenient to carry out those actions approved by more of the Managers, or between the Company and any other Person in which one or more of the Managers, are directors or officers, or have a financial interests, shall require the affirmative votes of a majority of the disinterested Managers. If a quorum shall not be present at any meeting of the Board of Managers, If the Managers present thereat may adjourn and reschedule the meeting to a date no earlier than five days thereafter with notice in accordance with Section 2.1(j). (i) Written notice of each meeting of the Board of Managers approves executing a document or agreement without specifically authorizing signersshall state the place, then date and time of such meeting, and the Managing Member and each general nature of the business to be transacted. Notice shall be given in the manner prescribed in Section 11.1 not fewer than 10 days nor more than 60 days before the date thereof. (j) Notice of a meeting of the Board of Managers need not be given to any Manager who signs a waiver of notice, in person or by proxy, whether before or after such meeting. The attendance of any Manager at a meeting of the Board of Managers, acting individuallyin person or by proxy, may execute without protesting prior to the conclusion of such document or agreement on behalf meeting the lack of notice of such meeting, shall constitute a waiver of notice by such Manager, provided that such Manager has been given an adequate opportunity at the meeting to protest such lack of notice. (k) Special meetings of the CompanyBoard of Managers may be called (i) by the Chairman or (ii) by any two other Managers. The Company Notice of each special meeting shall enter into a Management Agreement be given to each Manager on the Board of Managers by telephone, telecopy or similar method (in each case, notice shall be given at least 72 hours before the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager time of the Company’s daymeeting) or sent by first-to-day operations and class mail (in which case notice shall be given at least five days before the development of the Projectmeeting), in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of unless a Triggering Event or longer notice period is removed established by the Board of Managers. Each such notice shall state (i) the time, date, place (which shall be at which time Cyprus shall have the authority, principal office of the Company unless otherwise agreed to by all Managers) or other means of conducting such meeting and (ii) the purpose of the meeting to be so held. No actions other than those specified in its sole discretion, to assume the position notice may be considered at any special meeting unless unanimously approved by the Managers. (l) Meetings of Managing Member without consent or action from any other Member or the Board of Managers and may be held through the use of conference telephone or similar communications equipment so long as all Persons participating in such meetings can hear one another at the time of such meetings. Participation in a meeting of the Board of Managers via conference telephone or similar communications equipment in accordance with the preceding sentence constitutes presence in person at such meeting. (m) Any action required or permitted to be taken at any meeting of the Board of Managers may be taken without a meeting if all Managers consent thereto in writing. Any such written consents shall also have be filed with the authority, in its sole discretion, to assume minutes of the position of manager under the Management Agreement, both elections being entirely independent from the otherproceedings.

Board of Managers. The management (a) From and after the date hereof, and until the provisions of this Section 1 cease to be effective, each holder of Company Units shall vote all of such holder’s Company Units that are voting Company Units and any other voting securities of the Company is vested over which such holder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a Unitholder, member, Manager, member of any committee of the Board, 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 member meetings) so that: (i) the authorized number of Managers consisting shall be initially established at five (5) Managers and shall thereafter be comprised of four such number of Managers as shall be determined from time to time by the Board; (4ii) the following individuals acting as Managers shall be elected to the Board: (individually a A) two (2) representatives designated by MDCP-A, who shall initially be Xxxxx X. Xxxxxx and Xxxxxxx Xxxxxx (the “MDCP-A Managers”); (B) one (1) representative designated by MDCP-C, who shall initially be Xxxxxx X. Xxxxxxx (the “MDCP-C Manager” and collectively with the MDCP-A Managers, the “MDCP Managers”); (C) the Chief Executive Officer of the Company, two who shall initially be Xxxxx Xxxxx; and (2D) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx for so long as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires he remains an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage executive officer of the Company. The Managing Member is hereby authorized to execute, in such capacityXxxxxx Xxxx. (iii) unless otherwise determined by the Board, all documents and agreements that do not require consent the composition of the Board board of Managers, For documents and agreements that require such consent, the Board directors or managers of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s daySubsidiaries (a “Sub Board”) shall be the same as that of the Board; (iv) at MDCP’s option, MDCP Managers shall constitute a majority of any committees of the Board or a Sub Board; (v) the removal from the Board or a Sub Board of any MDCP-toA Manager shall be at MDCP-day operations A’s written request, but only upon such written request and under no other circumstances; (vi) the removal from the Board or a Sub Board of any MDCP-C Manager shall be at MDCP-C’s written request, but only upon such written request and under no other circumstances; and (vii) in the event that any representative designated by MDCP-A or MDCP-C under clauses (ii)(A) or (ii)(B) above, as applicable, ceases to serve as a member of the Board (or a Sub Board) during his or her term of office, the resulting vacancy on the Board or the Sub Board shall be filled by a representative designated by MDCP-A or MDCP-C as provided in clauses (ii)(A) and (ii)(B) above, respectively. (b) The Company shall pay the reasonable out-of-pocket expenses incurred by each Manager for any expenses incurred in connection with attending the meetings of the Board, any Sub Board and any committee thereof. So long as any MDCP Manager serves on the Board and for five years thereafter, the Company shall maintain directors and officers indemnity insurance coverage regarding all Managers reasonably satisfactory to MDCP and the development Limited Liability Company Agreement shall provide for indemnification and exculpation of Managers to the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant fullest extent permitted under applicable law. (c) If any party fails to designate a representative to fill a managership pursuant to the terms of this Agreement Xxxxxxxxx Section 1, the election of an individual to such managership shall serve as be accomplished in accordance with the Managing Member until the occurrence of Limited Liability Company Agreement, subject to such party’s right at any time thereafter to designate a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authorityrepresentative hereunder, in its sole discretionwhich case any such individual elected pursuant to the Limited Liability Company Agreement shall cease to be a Manager. (d) In order to secure the obligations of each Unitholder who now or hereafter holds any voting securities in the Company to vote such Person’s Company Units in accordance with the provisions of this Section 1 and Section 4, each Unitholder hereby appoints MDCP as such Unitholder’s true and lawful proxy and attorney-in-fact, with full power of substitution, to assume vote all of such Unitholder’s Company Units for: (i) a Sale of the position of Managing Member without consent or action from any Company and all such other Member or matters as expressly provided for in Section 4, and (ii) the Board election and/or removal of Managers and all such other matters as expressly provided for in this Section 1. MDCP may exercise the irrevocable proxy granted to it hereunder by any Unitholder at any time any such Unitholder fails to comply with the provisions of this Agreement. The proxies and powers granted by each such Unitholder pursuant to this Section 1(e) are coupled with an interest and are given to secure the performance of such Unitholder’s obligations under the provisions of this Section 1 and Section 4. Such proxies and powers shall also have be irrevocable until termination of this Section 1 and Section 4 and shall survive the authoritydeath, incompetency, disability, bankruptcy or dissolution of each Unitholder and the subsequent holder(s) of such Unitholder’s Company Units. No Unitholder shall grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement. (e) The provisions of this Section 1 shall terminate automatically and shall be of no further force and effect upon the earlier to occur of the consummation of a Sale of the Company (unless the Sale of the Company is structured as a sale of assets, in its sole discretion, to assume which case this Section 1 shall terminate upon the position liquidation of manager under the Management Agreement, both elections being entirely independent from Company) or the otherconsummation of an IPO.

Board of Managers. The management of (a) Subject to such matters which are expressly reserved under this Limited Liability Company Agreement or the Company is vested in Act to the Members for decision, the Business shall be managed through a Board of Managers consisting (the “Board”), which shall initially consist of four seven (47) individuals acting as Managers (individually a “Manager” and collectively thereafter reduced to five (5) individuals if at any time the Management Group owns 51% of the Shares) (the “Managers”) as shall be determined as follows: (i) the Management Group shall be entitled to designate three (3) Managers (the “Management Group Managers”) (provided that if the Management Group owns 51% of the CompanyShares, it shall be entitled to designate three (3) Managers out of the five (5) total), and (ii) Knight shall be entitled to designate four (4) Managers (provided that if Knight owns 49% of the Shares, it shall be entitled to designate two (2) selected Managers out of the five (5) total) (the “Knight Managers” and collectively, with the Management Group Managers, the “Designated Managers”). If Knight proposes to appoint any Knight Manager who is not an executive officer of Knight Capital or one of its subsidiaries or the Management Group proposes to appoint a Management Group Manager who is not a Management Group Member, the other party may in good faith reasonably object to such proposed appointment and the relevant appointing party shall appoint a substitute Manager to replace such rejected appointee. No person shall be eligible to be a Manager unless such person agrees to be bound by Xxxxxxxxx confidentiality and non-solicitation terms that are substantially similar to those set forth in Sections 7.11. The Designated Managers shall appoint a President and Chief Executive Officer (the “President and Chief Executive Officer”) and all other executive officers of the Company by the vote of a Super-Majority of the Managers. For purposes of the preceding sentence, any Designated Manager under consideration for appointment as President and Chief Executive Officer, or other executive officer position, shall not be recused from voting on such matter. Each of the Members shall, in its respective sole discretion, be entitled to remove or discharge (with or without cause and with or without prior notice) one or more of its Designated Managers at any time, and to designate an alternate (who shall be permitted to attend, and have full voting powers at, any meeting at which the Designated Manager is absent) or a successor therefor. The Member that has removed or permitted assigndischarged its Manager and designated an alternate shall promptly give notice to the other Member of the name of the removed or discharged Manager and the name and address of the alternate Manager. The initial Designated Managers, the Chairman (as defined below) and the other two President and Chief Executive Officer as of the date of this Limited Liability Company Agreement are set forth on Schedule 6.02(a) hereto, which shall be updated from time to time to reflect the addition or removal of such persons. (2b) selected by Cyprus (or its successor or permitted assign). InitiallySubject to the next sentence, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board shall meet at such times as may be necessary for the Business on at least ten (10) business days’ prior written notice to each Manager of Managers such meeting given by any one (1) Manager, which written notice shall contain the time and Cyprus selects X. X. Xxxxxx, Vice President place of Cyprus such meeting and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board proposed items of Managersbusiness. Except as provided herein, the decisions The initial meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all held within 60 days of the Members. Except as set forth in Section 3.2 and Section 7.12(e)Effective Date and, thereafter, the Board shall meet at least once every fiscal quarter. Provided that proper and adequate notice has been provided as required by the first sentence of Managers shall act solely upon the majority consent of all of the Managersthis Section 6.03(b), which requires an affirmative vote of at least three (3) of the Managers (or their respective alternates) shall be required to constitute a quorum for the transaction of any business by the Board; provided, however, that at least four (4) Managersof the Managers (or their respective alternates) shall be required to constitute a quorum for the consideration of any action, including that pursuant to Section 6.04, requires a Super-Majority of the affirmative vote of at least one Managers (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each as defined below). Each Manager shall have one (1) votevote on all matters before the Board. No Manager Except as otherwise expressly set forth in this Limited Liability Company Agreement (including the matters set forth in Section 6.04 which shall be required to devote all require the approval of such Manager’s time or business efforts to the affairs Super-Majority of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacityManagers, all documents and agreements that do not require consent actions of the Board shall require the affirmative vote (or written consent) of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by at least a majority of the Managers. No Manager (acting in his or her capacity as such) shall have any authority to bind the Company to any third party with respect to any matter, If except pursuant to a resolution expressly authorizing such action (and authorizing such Manager to bind the Company with respect to such action) which resolution is duly adopted by the Board by the affirmative vote or written consent of at least a majority of the Managers. (c) Except as otherwise expressly required by this Limited Liability Company Agreement (including, without limitation, any requirement for a Super Majority of Managers), in the event the Board is evenly divided on any matter, such matter shall promptly be referred to the Members for decision and approval. (d) The initial Chairman (the “Chairman”) shall be Xxxxx. In the event of Xxxxx’x removal, resignation or death, the Managers approves executing shall appoint a document replacement Chairman by majority vote from among the Managers. For purposes of the preceding sentence, the Manager under consideration for appointment as Chairman shall not be recused from voting on such matter. The Chairman shall preside over all meetings of the Board. In the absence of the Chairman, his or agreement her designated alternate shall assume his or her powers, duties and authority at such meeting. The Chairman shall have no other power, duties or authority as such. (e) There shall be no committees of the Board and there shall be no delegation of the powers, duties and authorities of the Board to any other person, entity, or committee. (f) No item of business that is not contained in the notice of the meeting may be conducted unless four (4) Managers consent. Notice of any Board meeting may be waived by any Manager before or after such meeting. Meetings of the Board shall be conducted by conference telephone facilities (or other similar technology) if any Manager so requests. Managers may approve a matter or take any action without specifically authorizing signers, then the Managing Member and each a meeting by a written consent of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement which must be executed by at least four (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.4)

Board of Managers. The Company will be managed by the Board. The Board will consist of six (6) Managers; three Managers to be appointed by IBC and three Managers to be appointed by Empyrean. The Managers will serve at the request of IBC and Empyrean and IBC and Empyrean will have the right to replace each of the three Managers they were entitled to appoint without the approval of the Board; provided, however, that any successor to the original appointees shall be either the Chairman of the Board, Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Empyrean or IBC, as the case may be. Initially, the Board will consist of Lawrence D. Bain, Richard C. Axxxxxx, Xxxxxxx S. Xxxxx, Xxxx Xxmex xx Xxxxx, Xxxxx Txxxxxxxxx, X.X. xxd Axxxxx Xxxxxxx. X quorum of the Xxxxx xxxxx xe composed of all six Managers. (1) The Board will have full, exclusive, and complete discretion, power, and authority, subject in all cases to the other provisions of this Agreement and the requirements of applicable law, to manage, control, administer, and operate the business and affairs of the Company for the purposes herein stated, and to make all decisions affecting such business and affairs, whether or not in the ordinary course of such business and affairs, and to perform any and all other acts or activities customary or incident to the management of the Company's business, including, without limitation, the making of any distributions to the Members. (2) The Board may meet at the principal offices of the Company or at any other place as may be agreed upon from time to time by the Board at any time as may be determined by the Board or upon the request of any Manager or the President upon ten (10) days' notice to all the Managers. Meetings may be held by telephone. The Board will cause written minutes to be prepared of all actions taken by the Board and will cause a copy thereof to be delivered to each Manager within fifteen (15) days after the meeting. (3) No action may be taken at a meeting of the Board unless a majority of the Managers is vested in a Board of Managers consisting initially of four present at such meeting. (4) individuals acting as Managers (individually Each Manager is entitled to cast one vote with respect to any decision made by the Board, except with respect to a “Manager” and collectively the “Managers”) of the Companydetermination to seek indemnification under Section 5(h), two (2) selected in which event a Manager seeking indemnification may not vote with respect to his or her indemnification. Any action to be taken by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) a majority of the four Managers. Approval or action by the Board constitutes approval or action by the Company and is binding on the Members. (45) Managers, including The Board will first attempt to settle and vote on each and every matter presented to it respecting the affirmative vote management of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much in good faith. In the event the business of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage suffering or is threatened with irreparable injury because the Board is so divided respecting the management of the affairs of the Company that the required vote for action by the Board cannot be obtained within thirty (30) days from the date such vote is first presented to the best advantage of Board, the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents Members and agreements that do not require consent of the Board of Managers, For documents hereby agree to submit and agreements that require have such consent, the Board of Managers may, divided vote decided by final and binding arbitration conducted in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved a mutually agreed location by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Projectone neutral arbitrator, in accordance with the terms then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). A judgment may be entered in any court having competent jurisdiction. The arbitrator will not have the power to award any consequential or punitive damages. The arbitrator will not have the power to order pre-hearing discovery of documents or the taking of depositions, but may compel attendance of witnesses and conditions contained in the Management Agreement production of documents at the hearing. This Section will be governed and this Agreement. Pursuant enforced under the Federal Arbitration Act, 9 U.S.C. Sections 1 to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed 16. (6) Any action to be taken by the Board of may be taken without a meeting if consents in writing setting forth the action so taken are signed by all Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually subject to Section 6.01(d) and Section 6.01(g)) (each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Non-PubCo Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) From time to time following the date hereof, the Corporation, without the consent of any other Member, shall be entitled to increase or decrease (i) the size of the Board and/or (ii) the number of PubCo Managers and Non-PubCo Managers on such Board; provided, that the consent of the holders of a majority of the Series A Preferred Stock shall be required before the Corporation increases or decreases the number of PubCo Managers and/or Non-PubCo Managers in a manner that would result in the PubCo Managers ceasing to represent a majority of the Board. Following any such adjustment, the Members shall be obligated to remove any Managers and to elect (i) the applicable number of the PubCo Managers as designated by Xxxxxxxxx the Corporation and/or the holders of a majority of the Series A Preferred Units and (ii) the applicable number of the Non-PubCo Managers as designated by the holders of a majority of the Units then outstanding held by Members other than the Corporation and its wholly- owned Subsidiaries in accordance with such adjusted Board membership requirements. (c) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or its resignation, or (B) the appointment of such Manager’s successor or permitted assign) pursuant to the provisions of Section 6.01. Any Manager may resign at any time by giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President In the event of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (d) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects X. X. Xxxxxx, Vice President may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (e) Meetings of Cyprus the Board of Managers may be held at any time and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on at any location specified in the notice thereof in such place within or without the State of Delaware. A majority of the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (f) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (g) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (h) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”i) which shall initially engage Xxxxxxxxx Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (j) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (k) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation. (l) The holders of a majority of the Series A Preferred Units may designate one person to receive (i) notice of, and attend and participate in, all meetings of the Board of Managers; (ii) all information sent to the Managers in their capacity as such; (iii) copies of all proposed written consents in lieu of meetings of the Board of Managers by no later than simultaneously with the delivery thereof to the Board in accordance with Section 6.01(e); and (iv) copies of all fully executed written consents in lieu of meetings of the Board of Managers within ten (10) days after execution.

Board of Managers. The management of (a) Subject to such matters which are expressly reserved under this Limited Liability Company Agreement or the Company is vested in Act to the Members for decision, the Business shall be managed through a Board of Managers consisting (the “Board”), which shall initially consist of four seven (47) individuals acting as Managers (individually a “Manager” and collectively thereafter reduced to five (5) individuals if at any time the Management Group owns 51% of the Shares) (the “Managers”) as shall be determined as follows: (i) the Management Group shall be entitled to designate three (3) Managers (the “Management Group Managers”) (provided that if the Management Group owns 51% of the CompanyShares, it shall be entitled to designate three (3) Managers out of the five (5) total), and (ii) Knight shall be entitled to designate four (4) Managers (provided that if Knight owns 49% of the Shares, it shall be entitled to designate two (2) selected Managers out of the five (5) total) (the “Knight Managers” and collectively, with the Management Group Managers, the “Designated Managers”). If Knight proposes to appoint any Knight Manager who is not an executive officer of Knight Capital or one of its subsidiaries or the Management Group proposes to appoint a Management Group Manager who is not a Management Group Member, the other party may in good faith reasonably object to such proposed appointment and the relevant appointing party shall appoint a substitute Manager to replace such rejected appointee. No person shall be eligible to be a Manager unless such person agrees to be bound by Xxxxxxxxx confidentiality and non-solicitation terms that are substantially similar to those set forth in Sections 7.11. The Designated Managers shall appoint a President and Chief Executive Officer (the “President and Chief Executive Officer”) and all other executive officers of the Company by the vote of a Super-Majority of the Managers. For purposes of the preceding sentence, any Designated Manager under consideration for appointment as President and Chief Executive Officer, or other executive officer position, shall not be recused from voting on such matter. Each of the Members shall, in its respective sole discretion, be entitled to remove or discharge (with or without cause and with or without prior notice) one or more of its Designated Managers at any time, and to designate an alternate (who shall be permitted to attend, and have full voting powers at, any meeting at which the Designated Manager is absent) or a successor therefor. The Member that has removed or permitted assigndischarged its Manager and designated an alternate shall promptly give notice to the other Member of the name of the removed or discharged Manager and the name and address of the alternate Manager. The initial Designated Managers, the Chairman (as defined below) and the other two President and Chief Executive Officer as of the date of this Limited Liability Company Agreement are set forth on Schedule 6.02(a) hereto, which shall be updated from time to time to reflect the addition or removal of such persons. (2b) selected by Cyprus (or its successor or permitted assign). InitiallySubject to the next sentence, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board shall meet at such times as may be necessary for the Business on at least ten (10) business days’ prior written notice to each Manager of Managers such meeting given by any one (1) Manager, which written notice shall contain the time and Cyprus selects X. X. Xxxxxx, Vice President place of Cyprus such meeting and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board proposed items of Managersbusiness. Except as provided herein, the decisions The initial meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all held within 60 days of the Members. Except as set forth in Section 3.2 and Section 7.12(e)Effective Date and, thereafter, the Board shall meet at least once every fiscal quarter. Provided that proper and adequate notice has been provided as required by the first sentence of Managers shall act solely upon the majority consent of all of the Managersthis Section 6.03(b), which requires an affirmative vote of at least three (3) of the Managers (or their respective alternates) shall be required to constitute a quorum for the transaction of any business by the Board; provided, however, that at least four (4) Managersof the Managers (or their respective alternates) shall be required to constitute a quorum for the consideration of any action, including that pursuant to Section 6.04, requires a Super-Majority of the affirmative vote of at least one Managers (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each as defined below). Each Manager shall have one (1) votevote on all matters before the Board. No Manager Except as otherwise expressly set forth in this Limited Liability Company Agreement (including the matters set forth in Section 6.04 which shall be required to devote all require the approval of such Manager’s time or business efforts to the affairs Super-Majority of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacityManagers, all documents and agreements that do not require consent actions of the Board shall require the affirmative vote (or written consent) of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by at least a majority of the Managers. No Manager (acting in his or her capacity as such) shall have any authority to bind the Company to any third party with respect to any matter, If except pursuant to a resolution expressly authorizing such action (and authorizing such Manager to bind the Company with respect to such action) which resolution is duly adopted by the Board by the affirmative vote or written consent of Managers approves executing at least a document or agreement without specifically authorizing signers, then the Managing Member and each majority of the Managers. (c) Except as otherwise expressly required by this Limited Liability Company Agreement (including, acting individuallywithout limitation, may execute any requirement for a Super Majority of Managers), in the event the Board is evenly divided on any matter, such document or agreement on behalf of matter shall promptly be referred to the Company. Members for decision and approval. (d) The Company shall enter into a Management Agreement initial Chairman (the “Management AgreementChairman”) which shall initially engage Xxxxxxxxx to be Xxxxx. In the manager event of Xxxxx’x removal, resignation or death, the Managers shall appoint a replacement Chairman by majority vote from among the Managers. For purposes of the Company’s day-to-day operations and preceding sentence, the development Manager under consideration for appointment as Chairman shall not be recused from voting on such matter. The Chairman shall preside over all meetings of the ProjectBoard. In the absence of the Chairman, in accordance with his or her designated alternate shall assume his or her powers, duties and authority at such meeting. The Chairman shall have no other power, duties or authority as such. (e) There shall be no committees of the terms Board and conditions there shall be no delegation of the powers, duties and authorities of the Board to any other person, entity, or committee. (f) No item of business that is not contained in the Management Agreement and this Agreement. Pursuant to notice of the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.meeting may be conducted unless four (4)

Board of Managers. (a) The management management, control and operation of and the determination of policy with respect to the Company and its affairs shall be vested exclusively in the Board of Managers (acting directly or through its duly appointed agents), which is hereby authorized and empowered on behalf and in the name of the Company, subject to the terms of this Agreement, to carry out any and all of the purposes of the Company is vested and to perform all acts and enter into and perform all contracts and other undertakings that it may in a its sole discretion deem necessary, advisable, convenient or incidental thereto. (b) The Board of Managers consisting initially shall have a maximum of four five (45) individuals acting as Managers managers (individually each, a “Manager” and collectively collectively, the “Managers”). The Company’s initial Board of Managers shall consist of five (5) Managers, three (3) of which shall be appointed by HMNY (the Company, “HMNY Managers”) for so long as HMNY has not resigned or withdrawn as a Member (and thereafter by a Majority Interest) and two (2) selected of which shall be appointed by Xxxxxxxxx EFO (the “EFO Managers”) for so long as EFO has not resigned or its successor or permitted assign) withdrawn as a Member (and the other thereafter by a Majority Interest). At least two (2) selected of the HMNY Managers shall be independent within the meaning of the listing rules of the Nasdaq Stock Market LLC (the “Helios Independent Managers”). The Managers need not be Members, individuals, or residents of the State of Delaware, and each Manager shall hold office until death, Disability, resignation or withdrawal pursuant to Section 3.1(c), or removal or replacement in accordance with Section 3.1(d) and 3.1(e). The initial Chairman of the Board of Managers (“Chairman”) and the initial Managers of the Company designated by Cyprus HMNY and EFO are as set forth on Schedule B attached hereto and incorporated herein by this reference. (c) A Manager may voluntarily resign or withdraw from his, her or its successor position as a Manager of the Company by giving written notice to the Members, to take effect on the date that is thirty (30) days from the Members’ receipt of that written notice or permitted assignat such later time as specified in the written notice. Unless otherwise specified in the notice, the acceptance of the resignation or withdrawal shall not be necessary to make it effective. The resignation or withdrawal of a Manager shall not affect any rights such Manager or any of its Affiliates may have under any written agreement with the Company, and the resignation or withdrawal of a Manager who is also a Member shall not affect such Manager’s rights as a Member or constitute a withdrawal of such Manager as a Member. (d) A Manager may be removed or replaced at any time, with or without cause, by the Member or Members that appointed such Manager, upon written notice to the Company. (e) Except as otherwise set forth herein, in the event that a Manager shall have committed Prohibited Conduct or be adjudged mentally incompetent by a court of competent jurisdiction, such Manager will be removed upon the written request of a majority of the other Managers or a Majority Interest. (f) In the event any Manager dies, suffers a Disability, resigns or withdraws pursuant to Section 3.1(c) or is removed or replaced in accordance with Section 3.1(d) and 3.1(e), the vacancy shall be promptly filled by the Member or Members that appointed such removed Manager. InitiallyIn addition, Xxxxxxxxx selects Xxxxxxx Xxxxxin the event a Member ceases to have the right to elect any Managers pursuant to Section 3.1(b), Vice President each designee of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives such Member on the Board of Managers shall be replaced by a new Manager who shall be elected in accordance with the provisions of Section 3.1(b). The replacement Manager shall be admitted to the Company as a Manager on such terms as the replacement Manager and Cyprus selects X. X. Xxxxxxa majority of the Managers may jointly determine; provided however, Vice President that no such terms shall conflict with the provisions of Cyprus this Agreement affecting the rights of the former Manager. Effective immediately upon the admission of such new Person as a Manager of the Company, the existing Manager being removed or resigning or withdrawing from the position of Manager shall cease to be a Manager of the Company. The Company shall not be dissolved by the removal and Xxx Xxxxxxreplacement of a Manager in accordance with the foregoing provisions of this Agreement. (g) The Board of Managers may designate one or more committees, Vice President Operations Undergroundeach committee to consist of one or more of the Managers of the Company. The Board of Managers may designate one or more Managers as alternate members of any committee, Peabody Midwest Group who may replace any absent or disqualified committee member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Managers to act at the meeting in place of any such absent or disqualified committee member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board of Managers or this Agreement, shall have and may exercise all the powers and authority of the Board of Managers in the management of the business and affairs of the Company. (h) Unless the Board of Managers otherwise provides, each committee designated by the Board of Managers may make, alter and repeal rules for the conduct of its business, provided that it cannot expand its powers beyond those described in subparagraph (g) above. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Managers conducts its representatives business pursuant to this Agreement. (i) The Board of Managers shall appoint a Compensation Committee comprised of two (2) Managers, one (1) of which shall be one of the Helios Independent Managers and one (1) of which shall be one of the EFO Managers designated by EFO (the “Compensation Committee”). The initial members of the Compensation Committee shall be Xxxxxx Xxxxx (being one of the initial Helios Independent Managers), and Xxxxxx Xxxxx (as hereby designated by EFO). HMNY may change the Helios Independent Manager designated by HMNY to serve on the Compensation Committee at any time upon written notice to the Board of Managers. Except as provided herein, EFO may change its designee to serve on the decisions Compensation Committee at any time upon written notice to the Board of Managers. Any action of the Compensation Committee shall require the affirmative vote or written consent of both members of the Compensation Committee. The charter of the Compensation Committee of the Board of Managers shall be binding upon substantially equivalent to the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all charter of the Members. Except as set forth in Section 3.2 and Section 7.12(ecompensation committee of the board of directors of HMNY, mutatis mutandis (i.e. making any necessary alterations without affecting the substance thereof), the Board final form of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required subject to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time approval and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed adoption by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherBoard.

Board of Managers. The management of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by Xxxxxxxxx Armstrong (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx Armstrong selects Xxxxxxx XxxxxKenneth Allen, Vice President of Operations of Xxxxxxxxx Armstrong and Xxxxxx XxxxxxMartin Wilson, President of Xxxxxxxxx Armstrong as its representatives on the Board of Managers and Cyprus selects X. X. XxxxxxT. L. Bethel, Vice President of Cyprus and Xxx XxxxxxTom Benner, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx Armstrong or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx Armstrong and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx Armstrong to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx Armstrong shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. The management (i) Subject to the delegation of rights and powers as provided for herein, the business and affairs of the Company is shall be vested in and conducted by a Board of Managers consisting initially Managers, which shall have the right to manage the business and affairs of four (4) individuals acting as Managers (individually a “Manager” the Company and collectively shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the “Managers”) purposes and business of the Company. Written notice stating the place, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) day and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President hour of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions any meeting of the Board of Managers shall be binding upon delivered not less than three nor more than 60 days before the Company date of such meeting by the Chairman of the Board of Managers. The number of managers constituting the Board of Managers shall be between two and nine. The Chairman of the Board of Managers shall be elected by a majority of managers on the Board of Managers. The initial members of the Board of Managers shall be Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxx-Xxxxxx, Xxxx X. Xxxx, Xxx Xxxxxxxxxxx Xx. and Xxxxx Xxxxxxx. (ii) The Board of Managers may, by resolution, designate one or more committees, each committee to consist of one or more of the managers of the Company. Any such committee, to the extent permitted by law, this Agreement and a resolution of the Board of Managers, shall have and may exercise all the powers and authority of the Board of Managers in the management of the business and affairs of the Company. (iii) Subject to the provisions of this Agreement, any action which could be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced taken by the Member which has appointed such Manager, but not by any other Member. In Board of Managers at a meeting of the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to Board of Managers may be a Member, the Managers appointed by such Member shall be removed at such time and replaced taken by the affirmative vote Board of Managers, without a meeting, without prior notice and without a vote, if a unanimous written consent setting forth the action so taken is signed by all of the Membersmanagers of the Board of Managers. Any such written consent may be executed and ascribed to by facsimile or similar electronic means. (iv) The Chairman of the Board of Managers shall have the power to adjourn such meeting from time to time, without any notice other than announcement at the meeting of the time and place of the holding of the adjourned meeting. Upon the resumption of such adjourned meeting, any business may be transacted that might have been transacted at the meeting as originally called. (v) Except as set forth otherwise provided in Section 3.2 and Section 7.12(e)this Agreement, the Board of Managers shall act solely upon have the majority consent of all of power and authority to delegate to one or more other persons its rights and powers to manage and control the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx business and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much Company, including delegating such rights and powers to a committee of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage managers, or managers of the Company. The Managing Member is hereby authorized Board of Managers may authorize any person to execute, in such capacity, all documents and agreements that do not require consent enter into any document on behalf of the Board Company and perform the obligations of Managers, For documents and agreements that require such consentthe Company thereunder. (vi) Except as otherwise specifically provided by this Agreement or required by the Delaware Act, the Board of Managers may, in connection with its approval thereof, authorize shall have the Managing Member and/or all or less than all of the Managers power to execute any act for and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of of, and to bind, the Company. The Company shall enter into a Management Agreement (Board of Mangers are hereby designated as authorized persons, within the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager meaning of the Company’s day-to-day operations Delaware Act, to execute, deliver and file any amendments and/or restatements to the development certificate of formation of the Project, in accordance with the terms Company and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or certificates (and any amendments and/or restatements thereof) necessary for the Board of Managers and shall also have Company to qualify to do business in a jurisdiction in which the authority, in its sole discretion, Company may wish to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherconduct business.

Board of Managers. The management Subject to the Act or this Agreement, the powers of the Company is vested in a shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed by, the Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” who shall be responsible for the management and collectively the “Managers”) operations of the Company and shall have all powers necessary to manage and control the Company, to conduct its business, and to implement any decision of the Members adopted pursuant to this Agreement. The initial Board of Managers shall consist of seven (7) Representatives, two (2) selected of whom shall be appointed by Xxxxxxxxx the Huttner Members (or its successor or permitted assignthe "Initial Huttxxx Xxxignees") and the other two (2) selected of whom shall be appointed by Cyprus Caltxx, Xxc. (or its successor or permitted assignthe "Initial Caltxx Xxxigneess"). InitiallyAfter the designation of the Initial Huttxxx Xxxignees and the Initial Caltxx Xxxignees, Xxxxxxxxx selects Xxxxxxx Xxxxxthe remaining Representatives shall be appointed as follows: (a) Caltxx, Vice President Xxc. shall designate two (2) additional Representatives (the "Second Caltxx Xxxignees"); provided, however, that neither of Operations the Second Caltxx Xxxignees shall become a Representative unless the choice of Xxxxxxxxx and Xxxxxx Xxxxxxthe designee is approved by the Initial Huttxxx Xxxresentatives (which approval shall not be unreasonably withheld); (b) The Huttxxx Xxxbers shall designate one additional Representative (the "Second Huttxxx Xxxignee"); provided, President however, that the Second Huttxxx Xxxignee shall not become a Representative unless the choice of Xxxxxxxxx as its representatives on the designee is approved by the Initial Caltxx Designees (which approval shall not be unreasonably withheld). The number of Representatives constituting the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon increased or decreased from time to time by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all unanimous approval of the Members. Except Representatives shall be elected by the Members as set forth provided in this Section 3.2 5.1.1. and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus5.2.1, and each Manager Representative so elected shall have one (1) votehold office until his successor is duly elected and qualified or until his or her earlier death resignation, or removal. No Manager shall be required to devote all of such Manager’s Any Representative may resign at any time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention upon notice to the Company as is reasonably necessary and advisable to manage or may be removed with or without cause, by the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in Member(s) having appointed such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, Representative in accordance with this Section V. A Representative need not be an employee of a Member or a resident of the terms and conditions contained in the Management Agreement and this AgreementState of Delaware. Pursuant Subject to the terms powers of removal and replacement set forth above in this Agreement Section 5.1, the Huttner Members hereby appoint Richxxx Xxxx xxx Fredxxxxx X. Xxxxxxx xx their initial Representatives and Caltxx Xxx. hereby appoints Anthxxx X. Xxxxxxxxx xxx Robexx X. Xxxxxxxx xx its initial Representatives. Caltxx, Xxc. shall serve as designate the Managing Member until Second Caltxx Xxxignees, and the occurrence Huttner Members shall designate the Second Huttxxx Xxxignees, by July 15, 2000, and the appointment of a Triggering Event or is removed by such additional Representatives shall occur simultaneously after the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, requisite approvals are obtained pursuant to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherthis Section 5.1.1.

Board of Managers. The management A Board of Managers shall be established to manage the business and affairs of the Company is vested in a accordance with the following terms: (a) Appointment and Term of Managers; Vacancies; Removal. (i) The Board of Managers consisting shall initially consist of four up to three (43) individuals acting Managers designated in accordance with this Section 8.3(a), as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board such number of Managers and Cyprus selects X. X. Xxxxxx, Vice President shall be set from time to time by unanimous vote of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of The Managers shall be binding upon designated as follows: (A) SLH shall have the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by right to designate up to two (2) Managers (each, an “SLH Manager”); and (B) MOI shall have the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases right to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least designate one (1) Manager appointed (the “MOI Manager”). (ii) The Board of Managers shall from time to time by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent majority vote elect a Chairman of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management AgreementChairman of the Board”) which who shall initially engage Xxxxxxxxx to be the manager preside at all meetings of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have such other powers and duties as may be delegated to him or her by the authorityBoard of Managers. The Board of Managers, in its sole discretionincluding the Chairman of the Board, shall initially be composed of the Persons set forth on Schedule V, which such schedule shall be updated from time to assume time by the position Board of manager under Managers to reflect any changes to the Management Agreement, both elections being entirely independent Board of Managers pursuant to this Article 8. (iii) Each Manager shall hold office from the othertime of his or her appointment until his or her death, resignation or removal. If at any time any Manager ceases to serve on the Board of Managers (whether due to death, resignation, removal or otherwise), then only the Member entitled to designate such Manager pursuant to this Section 8.3(a) shall be entitled to designate a replacement for such Manager in accordance with this Section 8.3(a) by written notice to the Company and the other Member; provided, that any replacement must either be (A) an executive officer of the designating Member or any of its Affiliates or (B) otherwise reasonably acceptable to the other Member. (iv) SLH may at any time, with or without cause, remove any Manager designated by SLH upon written notice to the Company. MOI may at any time, with or without cause, remove any Manager designated by MOI upon written notice to the Company. (v) Each Manager (including the Chairman of the Board) shall be a United States Citizen.

Board of Managers. The management (a) Until the provisions of this Section 2 cease to be effective, each Member shall vote all of his or its Member Interests which are entitled to vote and over which such Member 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 member, manager, director, member of a committee of the Board, or officer of the Company is vested or otherwise, and including 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 reasonably necessary or desirable actions within its control (including calling special Board and member meetings), so that: (i) not fewer than three (and, in any event, a majority) of Managers consisting initially the members of four the Board (4) individuals acting as Managers (individually a “Manager” and collectively the “ManagersABRY Directors”) are designated by Persons owning a majority of the ABRY Member Interests (“ABRY Majority Members”); (ii) the then current chief executive officer of the Company (the “CEO Director”) shall be elected to the Board; (iii) Xxxxxxx Xxxxx shall be elected to the Board for so long as he serves as the chief financial officer of the Company; (iv) one independent director (the “Independent Director”) may be elected to the Board by a Majority of the Board; provided that, for purposes of this clause (iv), a director shall be “independent” if such director (A) is not an Affiliate of the Company or any of its Affiliates, (B) is not otherwise an employee of the Company or any of its Subsidiaries or Affiliates and (C) does not accept any consulting, advisory or other compensatory fee from the Company or any of its Subsidiaries other than in his or her capacity as the Independent Director; (v) (A) any ABRY Director may be removed as a director at the written request of ABRY Majority Members, provided that no ABRY Director will be removed from such position except as provided in this clause (v)(A); (B) the CEO Director shall be removed as a director automatically and without further action of the Members if such CEO Director ceases to be the chief executive officer of the Company; (C) Xxxxxxx Xxxxx shall be removed as a director automatically and without further action of the Members if Xxxxxxx Xxxxx ceases to be the chief financial officer of the Company; and (D) any Independent Director may be removed as a director at the written request of a Majority of the Board; and (vi) if (A) any ABRY Director ceases to serve as a director during his or her term of office, the resulting vacancy on the Board shall be filled by a representative designated as provided in Section 2(a)(i), (B) the CEO Director ceases to serve as a director during his or her term of office, the resulting vacancy on the Board shall be filled by the next individual appointed chief executive officer of the Company, two and (2C) selected by Xxxxxxxxx (Xxxxxxx Xxxxx or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). InitiallyIndependent Director ceases to serve as a director during his term of office, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives the resulting vacancy on the Board may be filled by a person designated by a Majority of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, Board. (b) The Company shall pay or reimburse the decisions reasonable out-of-pocket expenses incurred by each member of the Board of Managers shall be binding upon in connection with attending the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all meetings of the Members. Except as set forth in Section 3.2 Board or any Sub Board and Section 7.12(e)each committee thereof. (c) At the first meeting of the Board after the date of this Agreement, the Board shall adopt a set of Managers standards of business conduct which shall act solely upon establish reasonable and prudent policies and guidelines for the majority consent of all of the ManagersCompany, which requires an affirmative vote of at least three (3) of the four (4) Managersits Subsidiaries and their employees, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts with respect to the affairs following matters: conflicts of the Company but shall devote so much of such Manager’s time interest, ethical practices, trade regulation, payment and attention to the Company as is reasonably necessary procurement policies, legal compliance, employment discrimination, sexual harassment and advisable to manage the affairs of the Company to the best advantage of the Company. environmental management. (d) The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms provisions of this Agreement Xxxxxxxxx Section 2 shall serve as the Managing Member until the occurrence terminate automatically and be of no further force and effect upon a Triggering Event Qualified Public Offering or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otheran Approved Sale.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually subject to Section 6.01(d) and Section 6.01(g)) (each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Non-PubCo Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) From time to time following the date hereof, the Corporation, without the consent of any other Member, shall be entitled to increase or decrease (i) the size of the Board and/or (ii) the number of PubCo Managers and Non-PubCo Managers on such Board; provided, that the consent of the holders of a majority of the Series A Preferred Stock shall be required before the Corporation increases or decreases the number of PubCo Managers and/or Non-PubCo Managers in a manner that would result in the PubCo Managers ceasing to represent a majority of the Board. Following any such adjustment, the Members shall be obligated to remove any Managers and to elect (i) the applicable number of the PubCo Managers as designated by Xxxxxxxxx the Corporation and/or the holders of a majority of the Series A Preferred Units and (ii) the applicable number of the Non-PubCo Managers as designated by the holders of a majority of the Units then outstanding held by Members other than the Corporation and its wholly-owned Subsidiaries in accordance with such adjusted Board membership requirements. (c) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or its resignation, or (B) the appointment of such Manager’s successor or permitted assign) pursuant to the provisions of Section 6.01. Any Manager may resign at any time by giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President In the event of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (d) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects X. X. Xxxxxx, Vice President may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (e) Meetings of Cyprus the Board of Managers may be held at any time and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on at any location specified in the notice thereof in such place within or without the State of Delaware. A majority of the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (f) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (g) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (h) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”i) which shall initially engage Xxxxxxxxx Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (j) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (k) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation. (l) The holders of a majority of the Series A Preferred Units may designate one person to receive (i) notice of, and attend and participate in, all meetings of the Board of Managers; (ii) all information sent to the Managers in their capacity as such; (iii) copies of all proposed written consents in lieu of meetings of the Board of Managers by no later than simultaneously with the delivery thereof to the Board in accordance with Section 6.01(e); and (iv) copies of all fully executed written consents in lieu of meetings of the Board of Managers within ten (10) days after execution.

Board of Managers. (a) The management business of the Company is vested in shall be managed by a Board of Managers consisting initially (the “Board of four Managers”), and the Persons constituting the Board of Managers shall be the “managers” of the Company for all purposes of the Act (4) individuals acting as Managers (individually each, a “Manager” ”, and collectively collectively, the “Managers”) ); provided, that except as otherwise provided herein, and notwithstanding the last sentence of Section 18-402 of the CompanyAct, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President no single member of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers may bind the Company, and Cyprus selects X. X. Xxxxxxthe Board of Managers shall have the power to act only collectively as a board in accordance with the provisions and in the manner set forth in this Section 7.1. The number of Managers as of the date hereof shall be seven (7). Subject to Section 7.1(c), Vice President the number of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on Managers after the date hereof shall be determined from time to time by the Board of Managers. Except The Managers as provided hereinof the date hereof shall consist of: (i) four (4) members who shall be elected by NBC (the “NBC Managers”), with Xxxxxxx X. Xxxxxxxx V, Xxxx X. Xxxxxxx III, Xxxxxxx Xxxxxx IV, and Xxxxxx X. Aland initially serving as the decisions NBC Managers; and (ii) three (3) members who shall be elected by Factor LLC (the “Factor LLC Managers”), with Xxxxx Xxxxxx, Xxxxx X. Xxxxxxxx, III and Xxxxxxxx Xxx initially serving as the Factor LLC Managers. (b) Decisions of the Board of Managers shall be binding upon decisions of the “manager” for all purposes of the Act and shall be carried out by officers or agents of the Company and appointed by the Board of Managers in the resolution or consent in question or in one or more standing resolutions or consents. A decision of the Board of Managers may be relied upon amended, modified or repealed in the same manner in which it was adopted, but no such amendment, modification or repeal shall affect any Person who has been furnished a copy of the original vote or resolution, certified by other persons a duly authorized officer of the Company, until such Person has been notified in writing of such amendment, modification or entitiesrepeal. (c) Each Manager shall, unless otherwise provided in this Agreement or by law, hold office until such individual is removed, resigns or dies; provided, however, that (i) no NBC Manager may be removed without the written consent of NBC, and (ii) no Factor LLC Manager may be removed without the written consent of Factor LLC. A Manager may resign by written notice to the Company, which resignation shall not require acceptance and, unless otherwise specified in the resignation notice, shall be effective upon receipt by the Company. Any vacancy on the Board of Managers created by the removal, resignation or death of any Manager appointed by NBC or Factor LLC, as applicable, shall be filled by an appointment made by NBC or Factor LLC, as applicable. (d) Meetings of the Board of Managers may be held at any time be changed and at any place where a quorum is present within or removed and replaced without the State of Delaware designated in the notice of the meeting, when called by any Manager, reasonable notice thereof being given to each Manager by the Member which has appointed person or persons calling the meeting. (e) It shall be reasonable and sufficient notice to a Manager to send notice by overnight delivery at least two (2) Business Days or by electronic mail or facsimile at least two (2) Business Days before the meeting, addressed to such Manager at such Manager’s usual or last known business or residence address, but business facsimile number or electronic mail address, as applicable, or to give notice to such Manager in person or by live telephone conversation (i.e., not voicemail) at least two (2) Business Days before the meeting. Notice of a meeting need not be given to any Manager if a written waiver of notice, executed by such Manager before or after the meeting, is filed with the records of the meeting, or to any other MemberManager who attends the meeting. Neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting. (f) Each Manager present at any meeting of the Board of Managers shall be entitled to cast one vote with respect to any matter on which action or approval is considered at such meeting. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases any Manager is unable to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent attend any meeting of the Board of Managers, For documents such Manager may give to any other Manager such non-attending Manager’s proxy to exercise such non-attending Manager’s voting rights at such meeting. (g) Except as may be otherwise provided by law, at any meeting of the Board of Managers, a number of Managers then in office and agreements that require such consent, present in person or by proxy with authority to vote a majority of the total votes cast by the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all shall constitute a quorum. Any action to be taken or less than all of approved by the Managers to execute any and all documents necessary hereunder must be taken or convenient to carry out those actions approved by a vote of a majority of the Managers, If voting in person or by proxy at a meeting, and any action so taken or approved shall constitute the Board act of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers. Any meeting may be adjourned from time to time by a majority of the votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice. (h) Any Manager may designate an alternate individual who may replace such absent Manager at which time Cyprus shall have the authority, in its sole discretion, to assume the position any meeting of Managing Member without consent or action from any other Member or the Board of Managers and shall also be counted as present for purposes of a quorum and shall have the authorityright to take any action required or permitted to be taken at any meeting of the Board of Managers by such designating Manager. (i) Any action required or permitted to be taken at any meeting of the Board of Managers may be taken without a meeting if all Managers then in office unanimously consent thereto in writing, and such writing or writings are filed with the records of the meetings of the Board of Managers. Such consent shall be treated for all purposes as the act of the Board of Managers. (j) Managers may participate in a meeting of the Board of Managers by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other or by any other means permitted by law. Such participation shall constitute presence in person at such meeting. (k) Each Manager shall be reimbursed for such Manager’s reasonable out-of-pocket expenses incurred in the performance of such Manager’s duties as Manager. Nothing contained in this Section 7.1(k) shall be construed to preclude any Manager from serving the Company in any other capacity and receiving reasonable compensation therefor. (l) The Board of Managers may adopt such other rules for the conduct of its sole discretion, business as it may from time to assume the position of manager under the Management Agreement, both elections being entirely independent from the othertime deem necessary or appropriate.

Board of Managers. (i) The management Company will be exclusively and completely managed by, and the powers of the Company is vested in shall be exercised by or under the authority of, a management board comprised of three (3) members (the “Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, ). The Class A Members shall be entitled to appoint not less than two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President members of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx(the “Class A Managers”), Vice President and, so long as Xxxxxxx or a Permitted Transferee of Cyprus and Xxx XxxxxxXxxxxxx continues to be a Class B Member, Vice President Operations Undergroundsuch Class B Member shall have the absolute right to appoint one member of the Board of Managers (the “Xxxxxxx Manager”); provided, Peabody Midwest Group as its representatives however, that the Xxxxxxx Manager shall, if other than Xxxxxxx, be reasonably acceptable to the Class A Members. In the event that Xxxxxxx or a Permitted Transferee of Xxxxxxx is no longer a Class B Member, then the Class A Members shall be entitled to appoint all three (3) members of the Board of Managers. The number of members of the Board of Managers (each, a “Manager”) may be changed from time to time by vote of the Board of Managers. Unless otherwise determined by the Board of Managers, the Managers will not be compensated for serving on the Board of Managers. Except as provided herein; provided, however, the decisions Board of Managers may approve reimbursement for the actual reasonable expenses incurred by a Manager in performing such duties. (ii) Members of the Board of Managers shall initially consist of Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx (the Class A Managers) and Xxxxxxx (the Xxxxxxx Manager). Except as otherwise set forth herein, each Manager will continue to serve as a Manager until such Manager’s death, resignation, or removal. (iii) The Class A Managers may only be binding upon removed by vote of the Company and may be relied upon by other persons or entitiesClass A Members. A The Xxxxxxx Manager may at any time only be changed removed by vote of Xxxxxxx (or removed and replaced by the Member which has appointed such Manager, but not by any other a Permitted Transferee thereof) (so long as Xxxxxxx or a Permitted Transferee of Xxxxxxx continues to be a Class B Member). In the event that Xxxxxxxxx Xxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Permitted Transferee of Xxxxxxx is no longer a Class B Member, then the Managers appointed by such Member shall Xxxxxxx Manager may be removed at such time and replaced by the affirmative vote of all of the Class A Members. Except as set forth in Section 3.2 and Section 7.12(e), . (iv) A Manager may resign by providing written notice to the Board of Managers shall act solely upon Managers. The resignation takes effect when received by the majority consent Board of all Managers. Any vacancy occurring in the Board of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, vacancies resulting from an increase in such capacity, all documents and agreements that do not require consent size of the Board of Managers, For documents and agreements or upon the death, resignation or removal of a Manager, shall be filled by the Class A Member; provided, however, that require such consentany vacancy resulting upon the death, the Board resignation or removal of Managers maya Xxxxxxx Manager shall be filled by Xxxxxxx or a member of his Family, in connection with its approval so long as Xxxxxxx (or a Permitted Transferee thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx continues to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherClass B Member.

Board of Managers. (a) The management board of managers of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the "Board of Managers") shall, subject to Section 8.02 (c), consist of three natural persons (the "Managers"), each of whom shall be entitled to vote, one of whom shall be designated by STV in its sole discretion (subject to the last sentence of this Section 8.02(a)) as its representative (the "STV Manager"), one of whom shall be designated by NDI in its sole discretion as its representative (the "NDI Manager"), and one of whom shall be designated by agreement of NDI and STV and be independent of both NDI and STV (the "NDI/STV Manager"). Except as provided herein, the decisions Each member of the Board of Managers shall be binding upon a natural person. The initial Managers shall be those natural persons listed on Appendix C. No Manager may give a proxy to a third party. Notwithstanding anything to the Company and contrary, no STV Manager may be relied (or without NDI's consent, have been in the prior three years) an officer, director, employee, consultant or otherwise any Person which is, or any Affiliate or associate of, any NDI Competitor. (b) In the event of a Transfer by a Member pursuant to Article X of all, but not less than all, of its Membership Interests to one person, effective at the time of such Transfer, (i) the Manager, if any, designated solely by the transferor of such Membership Interests shall automatically be removed from the Board of Managers, (ii) the transferee of such Membership Interests shall be permitted to designate one Manager to the Board of Managers as its representative in place of the removed Manager (subject, in the case of the Transfer of the Membership Interests originally held by STV, to the restrictions in the proviso clause of Section 8.02(d)), and (iii) the transferee of such Membership Interests shall succeed to the transferor's rights with respect to the NDI/STV Manager. Such transferee shall promptly notify the other Members as to the name of the person who such transferee has designated as its representative on the Board of Managers. (c) In the event of a Transfer by any Member pursuant to Article X of a portion (but not all) of its Membership Interests constituting at least 30% of the outstanding Percentage Interests, effective at the time of such Transfer, automatically the number of Managers shall increase to five natural persons, of which two shall be STV Managers, two shall be NDI Managers and one shall be the NDI/STV Manager (who shall be selected by NDI and STV unless either of them assigns pursuant to this Agreement its right to participate in such appointment; it being understood that the NDI/STV Manager need be appointed only by two Members, such Members being (i) NDI or its transferee and (ii) STV or its transferee). In no event shall the number of Managers exceed five persons. In the case of a Transfer pursuant to the first sentence of this Section 8.02(c), if the transferor is NDI, then NDI shall have the right to designate one of the two NDI Managers and the transferee shall have the right to designate the other NDI Manager and STV, together with any STV transferee as permitted pursuant to this Agreement shall have the right to designate the two STV Managers. If the Transferor is STV, then STV shall have the right to designate one of the two STV Managers and its transferee shall have the right to designate the other STV Manager, and NDI, together with any NDI transferee as permitted pursuant to this Agreement shall have the right to designate the two NDI Managers. Notwithstanding anything to the contrary, in the event of any Transfer by a Member of less than its entire Membership Interests which does not meet the requirements of the first sentence of this Section 8.02(c), then the transferor shall continue to hold and exercise all the rights of the transferor under this Article 8 (subject to the then-existing rights allocated to prior transferees) and in no event shall the transferor enter into any agreement or understanding with the transferee regarding the designation of any Manager or how it or any Manager will vote with respect to any matter and any such agreement or understanding shall be null and void, ab initio. (d) In the event of a vacancy in the NDI/STV Manager position and STV and NDI cannot agree as to the person to serve as the NDI/STV Manager within 60 days of such vacancy, for the two-year period following such disagreement, the NDI/STV Manager shall be selected as follows: (i) for the first year, NDI shall select two candidates and STV shall designate the NDI/STV Manager from such candidates to serve a one-year term; (ii) for the second year, STV shall select two candidates and NDI shall designate the NDI/STV Manager from such candidates to serve a one-year term; and (iii) upon by other persons completion of such second year, if STV and NDI do not mutually agree as to the person to serve as the NDI/STV Manager, the NDI/STV Manager for the subsequent two-year period shall be selected as provided in clauses (i) and (ii); provided however, in no event may any prospective NDI/STV Manager selected as a candidate pursuant to this Section 8.02(d) be an officer, director, or entitiesemployee of or otherwise associated with any NDI Competitor. A The rights under this Section 8.02(d) cannot be Transferred except as part of a Transfer pursuant to Section 8.02(b) or the first sentence of Section 8.02(c). (e) Each Manager may be removed and replaced, with or without cause, at any time be changed or removed and replaced by the Member which has appointed such designating him or her or, in the case of the NDI/STV Manager, but by mutual agreement of NDI and STV, but, except as provided in Section 8.02(b), may not be removed or replaced by any other Membermeans. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such A Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), who removes its representative from the Board of Managers shall act solely upon promptly notify the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts other Members as to the affairs name of the Company but shall devote so much of such its replacement Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. The management (a) Except for matters expressly requiring the approval of the Members (or a percentage or class of the Members) pursuant to this Agreement or the NRS, the business and affairs of the Company is vested in shall be managed by a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively pursuant to this Article IX. Subject to the “Managers”) provisions of the CompanyNevada Act and except as specifically provided in this Agreement, two the Board Members shall each serve for a three year term or until such Board Member shall resign or be removed or otherwise disqualified to serve, or until such Board Member's successor shall have been appointed. (2b) selected by Xxxxxxxxx The Members agree to take all necessary action such that each Member shall have rights identical to those set forth in this Article IX with respect to the boards of management (or its successor or permitted assigncomparable bodies) and management of the other Subsidiaries. (c) Subject to the remaining provisions of this Section 9.1, the Members shall appoint five Board Members as follows: (i) Aladdin Enterprises shall appoint three Board Members (who shall be deemed to have been designated by the Person who Controls Aladdin Enterprises) and (ii) LCI shall designate and appoint two (2) selected by Cyprus (or its successor or permitted assign)Board Members. Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx On the date hereof the Board Members shall be: Xxxx Xxxxxx, President Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxxx as Aladdin Enterprises appointees and Xxxx X. Xxxxxxxxxx and G. Xxxxx X. Xxxxx as LCI appointees. Each of Xxxxxxxxx as its representatives on Aladdin Enterprises and LCI shall have the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions right to have one of the Board Members appointed by it on any committee of Managers the Board. The first Chairman of the Board shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other MemberXxxx Xxxxxx. In the event that Xxxxxxxxx of the resignation or Cyprus (removal of Xxxx Xxxxxx as the Chairman of the Board prior to the Opening Date, the successor Chairman of the Board shall be a Person with a substantially similar or higher level of experience as Xxxx Xxxxxx with respect to the development of commercial properties and shall be appointed by Aladdin Enterprises subject to the approval of LCI, such party’s successor or permitted assign) ceases approval not to be a unreasonably withheld. (d) Provided that the Member with the highest Percentage Interest, other than the Majority Member (if any) and its Affiliates have not Caused an existing Event of Default and have paid their pro rata share (as provided in the Contribution Agreement) of all Completion Guaranty Payments up to such time, if the Majority Member or its Affiliates fails to pay their pro rata share (as provided in the Contribution Agreement) of any two separate Completion Guaranty Payments, then such Majority Member shall remove, or (if such Majority Member Controls Aladdin Enterprises) such Majority Member shall cause Aladdin Enterprises to remove, from the Board one of the Board Members designated by such Majority Member, as of the Managers appointed relevant second Completion Guaranty Payment Due Date, and such Party removing a Board Member shall appoint a new independent Board Member agreed by the remaining Board Members who shall be Chairman of the Board. (e) Provided that the Member with the highest Percentage Interest, other than the Majority Member (if any) and its Affiliates have not Caused an existing Event of Default under the Keep Well Agreement and have paid their pro rata share (as provided in the Contribution Agreement) of all Keep Well Payments up to such time, if the Majority Member or its Affiliates (i) fails to pay their pro rata share (as provided in the Contribution Agreement) of a Keep Well Payment (provided that no alterations to the Board have occurred pursuant to Section 9.1(d)) such Majority Member shall remove, or (if such Majority Member Controls Aladdin Enterprises) such Member shall cause Aladdin Enterprises to remove, from the Board one of the Board Members designated by such Majority Member, as of the relevant Keep Well Due Date and such Party removing a Board Member shall appoint a new independent Board Member agreed by the remaining Board Members who shall be Chairman of the Board and (ii) fails to make its pro rata share (as provided in the Contribution Agreement) of a second Keep Well Payment, the independent Board Member shall be removed at from the Board and such Party removing a Board Member shall appoint a new Board Member designated by the Member holding the highest Percentage Interest, other than any Majority Member, as of the relevant second Keep Well Due Date and such new Board Member shall be Chairman of the Board. (f) Provided (i) that Xxxxxx Enterprises and its Affiliates (if LCI is the Majority Member) or LCI and its Affiliates (if Xxxxxx Enterprises is the Majority Member) have not Caused an existing Event of Default under the Keep Well Agreement and has paid their pro rata share (as provided in the Contribution Agreement) of all Keep Well Payments up to such time and replaced by (ii) no alterations to the affirmative vote of all of the Members. Except as set forth in Board have occurred pursuant to Section 3.2 and Section 7.12(e9.1(d) or (e), if there is a Non-Default Keep Well Trigger, the Board of Managers Majority Member shall, or (if such Majority Member Controls Aladdin Enterprises) such Majority Member shall act solely upon the majority consent of all of the Managerscause Aladdin Enterprises to, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least remove one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, Members designated from the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all as of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority commencement of the ManagersNon-Default Keep Well Trigger and designate a new independent Board Member who shall be Chairman of the Board; PROVIDED that, If if Xxxx Xxxxxx is Chairman of the Board of Managers approves executing a document or agreement without specifically authorizing signersat such time, then the Managing Member and each Xxxx Xxxxxx shall remain as Chairman of the Managers, acting individually, may execute such document or agreement on behalf of the CompanyBoard. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until At any time after the occurrence of a Triggering Event or is Non-Default Keep Well Trigger, upon the occurrence of four successive Quarters when no payments are due (other than any Salle Privee Amount) under the Keep Well Agreement, then the Party who removed by the Board of Managers, at which time Cyprus Member shall have the authority, in its sole discretion, restore to assume the position of Managing Member without consent or action from any other Member or the Board a designee of Managers the Member which originally designated such Board Member who was removed and shall also have remove the authorityindependent Board Member, in its sole discretionif any, designated pursuant to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherpreceding sentence.

Board of Managers. The management (a) Until the provisions of this Section 2 cease to be effective, each Member shall vote all of his or its Member Interests which are entitled to vote and over which such Member 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 member, manager, director, member of a committee of the Board, or officer of the Company is vested or otherwise, and including 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 reasonably necessary or desirable actions within its control (including calling special Board of Managers consisting initially of four and member meetings), so that: (4i) individuals acting as Managers three directors (individually a “Manager” and collectively the “ManagersABRY Directors”) designated by Persons owning a majority of the ABRY Member Interests (“ABRY Majority Members”) shall be elected to the Board; (ii) one director (the “Oak Hill Director”) designated by the Persons owning a majority of the Oak Hill Member Interests (“Oak Hill Majority Members”) shall be elected to the Board; (iii) the then current chief executive officer of the Company (the “CEO Director”) shall be elected to the Board; (iv) Xxxxxx Xxxxxxxx (the “COO Director”) shall be elected to the Board, for so long as he serves as the chief operating officer of the Company; and (v) one independent director (the “Independent Director”) shall be elected to the Board by a Majority of the Board; provided that, for purposes of this clause (v), a director shall be “independent” if such director (A) is not an Affiliate of the Company or any of its Affiliates, (B) is not otherwise an employee of the Company or any of its Subsidiaries or Affiliates and (C) does not accept any consulting, advisory or other compensatory fee from the Company or any of its Subsidiaries other than in his or her capacity as the Independent Director; (vi) (A) any ABRY Director may be removed as a director at the written request of ABRY Majority Members; provided that no ABRY Director will be removed from such position except as provided in this clause (vi)(A), (B) the Oak Hill Director may be removed as a director at the written request of Oak Hill Majority Members; provided that the Oak Hill Director will not be removed from such position except as provided in this clause (vi)(B), (C) the CEO Director shall be removed as a director automatically and without further action of the Members if such CEO Director ceases to be the chief executive officer of the Company, two (2D) selected by Xxxxxxxxx Xxxxxx Xxxxxxxx shall be removed as a director automatically and without further action of the Members if Xxxxxx Xxxxxxxx ceases to be the chief operating officer of the Company, and (E) the Independent Director may be removed as a director at the written request of a Majority of the Board; (vii) if (A) any ABRY Director ceases to serve as a director during his or its successor or permitted assign) and her term of office, the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives resulting vacancy on the Board shall be filled by a representative designated as provided in Section 2(a)(i) above, (B) the Oak Hill Director ceases to serve as a director during his or her term of Managers and Cyprus selects X. X. Xxxxxxoffice, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives the resulting vacancy on the Board of Managers. Except shall be filled by a representative designated as provided hereinin Section 2(a)(ii) above, (C) the CEO Director ceases to serve as a director during his or her term of office, the decisions resulting vacancy on the Board shall be filled by the next individual appointed chief executive officer of the Company, (D) Xxxxxx Xxxxxxxx ceases to serve as a director during his term of office, the resulting vacancy on the Board may filled at the election of a Majority of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers director appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent a Majority of the Board of Managers, For documents and agreements that require such consent(E) the Independent Director ceases to serve as a director, the resulting vacancy on the Board of Managers mayshall be filled in the manner provided in Section 2(a)(v) above; (viii) at all times, in connection with its approval thereof, authorize the Managing Member and/or all or less than all Oak Hill Director shall be a member of the Managers to execute any and all documents necessary board of directors or convenient to carry out those actions approved by a majority board of the Managersmanagers, If the Board as applicable, of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations Subsidiaries (each a “Sub Board”) and each committee of the Board or any Sub Board, unless the Oak Hill Director (by vote at a meeting of the Board or any Sub Board or by written consent in lieu of such a meeting) or the Oak Hill Majority Members (in writing) otherwise agree. The provisions of Article III of the Operating Agreement relating to the Board and the development directors shall apply to each Sub Board and each committee of the ProjectBoard or any Sub Board, mutatis mutandi. (b) The Company shall pay or reimburse the reasonable out-of-pocket expenses incurred by each member of the Board in accordance connection with attending the terms meetings of the Board or any Sub Board and conditions contained each committee thereof. (c) At the first meeting of the Board after the date of this Agreement, the Board shall adopt a set of standards of business conduct which shall establish reasonable and prudent policies and guidelines for the Company, its Subsidiaries and their employees, including with respect to the following matters: conflicts of interest, ethical practices, trade regulation, payment and procurement policies, legal compliance, employment discrimination, sexual harassment and environmental management. (d) As and when the same are required to be delivered pursuant to Section 5A of the Preferred Securities Purchase Agreement, the Company will deliver to the Oak Hill Director (or to OHCP, on his or her behalf) those reports and other materials that are described in the Management Agreement and such Section 5A but that are not required to be delivered pursuant to Section 13 of this Agreement. Pursuant In addition, the Company will deliver to the terms Oak Hill Director (or to OHCP, on his or her behalf) any other information concerning the Company and its Subsidiaries that the Oak Hill Director may reasonably request. (e) The provisions of this Agreement Xxxxxxxxx Section 2 shall serve as the Managing Member until the occurrence terminate automatically and be of no further force and effect upon a Triggering Event Qualified Public Offering or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otheran Approved Sale.

Board of Managers. The management Each Member shall vote all of his or its Member Interests which are entitled to vote and over which such Member 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 member, manager, Manager, member of a committee of the Board, or officer of the Company is vested or otherwise, and including 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 reasonably necessary or desirable actions within its control (including calling special Board and member meetings), so that: (i) (A) two of Managers consisting initially the members of four the Board designated by Persons owning a majority of the Avista Member Interests, (4B) individuals acting as Managers one of the members of the Board designated by Avista VCOC and (individually a “Manager” and collectively C) one of the members of the Board designated by Avista VCOC III (collectively, the “Avista Managers”) shall be elected to the Board. The Avista Managers as of the Companydate hereof shall be Xxxxx Xxxxxxxxxxxx, two Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxxx; (2ii) selected by Xxxxxxxxx (or its successor or permitted assign) and one of the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions members of the Board who is a Management Member and is designated by Persons owning a majority of Managers the Avista Member Interests (“Management Manager”) shall be binding upon elected to the Company Board. The Management Manager as of the date hereof shall be Xxxxxxx Xxxxxxxx; (iii) two further members of the Board who shall not be Affiliates of Avista and shall be designated by Persons owning a majority of the Avista Member Interests (“Independent Managers”) shall be elected to the Board. The Independent Manager as of the date hereof shall be Xxxxxx Xxxxxx; (iv) any Manager may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed Members having the right to appoint such Manager, but not by Manager at any other Member. In the event that Xxxxxxxxx or Cyprus time; and (or such party’s successor or permitted assignv) if any Manager ceases to be serve as a MemberManager during his or her term of office, the Managers appointed by such Member resulting vacancy on the Board shall be removed at such time and replaced filled by the affirmative vote of all of the Members. Except a representative designated as set forth provided in Section 3.2 and Section 7.12(e2(a)(i), Section 2(a)(ii), or Section 2(a)(iii), as applicable. (b) [INTENTIONALLY OMITTED] (c) The Company shall pay or reimburse the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed reasonable out-of-pocket expenses incurred by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent member of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize attending the Managing Member and/or all or less than all meetings of the Managers to execute Board or any and all documents necessary or convenient to carry out those actions approved by a majority meeting of the Managers, If the Board board of Managers approves executing a document managers or agreement without specifically authorizing signers, then the Managing Member directors of any Subsidiary and each committee thereof. (d) The Board shall use commercially reasonable efforts to adopt a set of the Managers, acting individually, may execute such document or agreement on behalf standards of business conduct which shall establish reasonable and prudent policies and guidelines for the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations , its Subsidiaries and the development of the Projecttheir employees, in accordance including with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant respect to the terms following matters: conflicts of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managersinterest, at which time Cyprus shall have the authorityethical practices, in its sole discretiontrade regulation, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers payment and shall also have the authorityprocurement policies, in its sole discretionlegal compliance, to assume the position of manager under the Management Agreementemployment discrimination, both elections being entirely independent from the othersexual harassment and environmental management.

Board of Managers. The management (a) Except for matters expressly requiring the approval of the Members (or a percentage or class of the Members) pursuant to this Agreement or the NRS, the business and affairs of the Company is vested in shall be managed by a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively pursuant to this Article IX. Subject to the “Managers”) provisions of the CompanyNevada Act and except as specifically provided in this Agreement, two the Board Members shall each serve for a three year term or until such Board Member shall resign or be removed or otherwise disqualified to serve, or until such Board Member's successor shall have been appointed. (2b) selected by Xxxxxxxxx The Members agree to take all necessary action such that each Member shall have rights identical to those set forth in this Article IX with respect to the boards of management (or its successor or permitted assigncomparable bodies) and management of the other Subsidiaries. (c) Subject to the remaining provisions of this Section 9.1, the Members shall appoint five Board Members as follows: (i) Aladdin Enterprises shall appoint three Board Members (who shall be deemed to have been designated by the Person who Controls Aladdin Enterprises) and (ii) LCI shall designate and appoint two (2) selected by Cyprus (or its successor or permitted assign)Board Members. Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President of Operations of Xxxxxxxxx and Xxxxxx On the date hereof the Board Members shall be: Xxxx Xxxxxx, President Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxxx as Aladdin Enterprises appointees and Xxxx X. Xxxxxxxxxx and G. Xxxxx X. Xxxxx as LCI appointees. Each of Xxxxxxxxx as its representatives on Aladdin Enterprises and LCI shall have the Board of Managers and Cyprus selects X. X. Xxxxxx, Vice President of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions right to have one of the Board Members appointed by it on any committee of Managers the Board. The first Chairman of the Board shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other MemberXxxx Xxxxxx. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except resignation or removal of Xxxx Xxxxxx as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent Chairman of the Board of Managers, For documents and agreements that require such consentprior to the Opening Date, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all successor Chairman of the Managers Board shall be a Person with a substantially similar or higher level of experience as Xxxx Xxxxxx with respect to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms commercial properties and conditions contained in the Management Agreement and this Agreement. Pursuant shall be appointed by Aladdin Enterprises subject to the terms approval of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of ManagersLCI, at which time Cyprus shall have the authority, in its sole discretion, such approval not to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherbe unreasonably withheld.

Board of Managers. Section 2.01 The management business and property of the Company is vested in shall be managed and controlled by a Board of Managers consisting initially of four (4) individuals acting as not less than two nor more than seven persons. The Managers (individually a “Manager” and collectively the “Managers”) of the Company need not be residents of the State of Delaware and it is not necessary that the Managers be members in the Company. The Managers shall be elected at the annual meeting of members and shall hold their offices until their successors are elected and qualified. Section 2.02 A majority of the Managers shall constitute a quorum for the transaction of business, two (2) selected by Xxxxxxxxx (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, Xxxxxxxxx selects Xxxxxxx Xxxxx, Vice President act of Operations of Xxxxxxxxx and Xxxxxx Xxxxxx, President of Xxxxxxxxx as its representatives on the Board a majority of Managers and Cyprus selects X. X. Xxxxxx, Vice President present at a meeting at which there is a quorum shall be the act of Cyprus and Xxx Xxxxxx, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except No member of the Board shall vote on a question in which he or she is interested otherwise than as provided hereina member or employee, except the election of officers, or be present at the Board while the same is being considered; but, if his or her retirement from the Board in such case reduces the number present below a quorum, the decisions question may nevertheless be decided by those who remain. Section 2.03 The Board of Managers shall have general management of the business of the Company and, in addition to the powers and authority by this Operating Agreement expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the Company, but subject, nevertheless, to the provisions of the statute, of the Certificate of Formation and of this Operating Agreement, and to any regulations from time to time made by the members, provided that no regulation so made shall invalidate any prior act of the Managers which would have been valid if such regulation had not been made. Section 2.04 The Managers shall not receive any stated salary for their services as managers, but by resolution of the Board a fixed fee and expense of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Manager from serving the Company in any other capacity as an officer, agent or otherwise, and receiving compensation therefor. Section 2.05 The Board of Managers may from time to time declare distributions of so much of the net profits of the Company as they deem prudent. Section 2.06 Without prejudice to the general powers conferred by statute, by the Certificate of Formation and by this Operating Agreement, it is hereby expressly declared that the Board of Managers shall have the following powers: 1. To purchase or otherwise acquire for the Company any property, rights or privileges that the Company is authorized to acquire, at such price and on such terms and conditions, and for such consideration as they think fit. 2. At their discretion to pay for any property or rights acquired by the Company, either wholly or partially, in money or in other assets. 3. To appoint, subject to the provisions of law, such officers and agents of the Company as they may deem proper and also an Executive Committee from their own number, and may prescribe the duties and compensation of such. The officers and agents so appointed shall hold their places during the pleasure of the Board and, if required by the Board, shall give bonds payable to the Company in such penalties and with such conditions and security as the Board may approve. 4. To confer by resolution upon any officer of the Company the right to choose, remove or suspend such subordinate officers, agents or factors. 5. To appoint any person or persons to accept and hold in trust for the Company any property belonging to the Company, or in which it is interested, or for any other purpose, and to do and execute all such duties and things as may be requisite in relation to any such trust. 6. To aid, facilitate and assist in any manner, in the name and on behalf of this Company, in the performance of any lawful act or activity by this Company, and for those purposes to use the membership interests and bonds of this Company, or either of them or any part thereof, to pay, refund, guarantee or otherwise secure any indebtedness incurred in such act or activity, and to guarantee the bonds, debentures, indebtedness, dividends, contracts or other obligations of firms or other corporations. 7. To borrow money and to make and issue notes, bonds and other negotiable and transferable instruments, execute mortgages, deeds of trust and trust agreements, and to do any other acts necessary to effectuate the same. 8. To determine who shall be authorized on the Company’s behalf to make and sign bills, notes, receipts, acceptances, endorsements, checks, releases, contracts and other instruments. 9. To determine who shall be entitled to vote in the name and on behalf of the Company upon, or to assign and transfer, any shares of stock, bonds or other securities of other corporations held by this Company. 10. From time to time to provide for the management of the affairs of the Company, at home or abroad, in such manner as they think fit and, in particular, from time to time to delegate any of the powers of the Board of Managers shall to any committee, officer or agent and to appoint any persons to be binding upon the agents of the Company with such powers (including the power to delegate) and upon such terms as may be relied upon by other persons or entitiesthought fit. 11. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that Xxxxxxxxx or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all To call special meetings of the Membersmembers for any purpose or purposes. 12. Except as set forth in Section 3.2 From time to time to make and Section 7.12(e)change rules and regulations, not inconsistent with this Operating Agreement, for the management of the Company’s affairs. 13. To increase or decrease the number of members of the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of Xxxxxxxxx and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required from time to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, fill vacancies in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require including such consent, vacancies as may be created by action of the Board of Managers may, in connection with its approval thereof, authorize increasing the Managing Member and/or all or less than all number of members of the Managers Board from time to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage Xxxxxxxxx to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement Xxxxxxxxx shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the othertime.