Common use of Directors and Voting Agreements Clause in Contracts

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company shall be as BRS shall determine, and (ii) the individuals designated by BRS shall be elected to the Board of Directors of the Company. BRS shall designate Xxxxx Xxxxxx as a director so long as (i) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the Company. (b) Each Investor and Permitted Transferee shall take all necessary action to cause the composition of the Board of Directors of the Company to remain in accordance with Section 3.1(a) (including without limitation voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) to cause the Board of Directors of the Company to be in accordance with Section 3.1(a). (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all of the holders of the Securities on an equal per share or Securities basis.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee agrees that it shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company shall be (the “Board of Directors”) is composed of such number of directors as BRS shall determine, and (ii) the individuals designated determined by BRS shall be elected to the ValueAct Capital. The initial Board of Directors of the Company. BRS shall designate be composed of: Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx as a director so long as (i) BRS has the foregoing right to designate directors X. Xxxxx, Xxxxxxx X. Xxxxx and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the CompanyXxxxxxx X. Xxxxx. (b) Each Investor and Permitted Transferee shall agrees to take all necessary action to cause the composition of the Board of Directors of the Company to remain in accordance with Section 3.1(a3.2(a) hereof (including including, without limitation limitation, voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Personspersons) and to act itself (if a member of the Board of Directors) or cause its designee (if any) on the Board of Directors to vote or act by written consent to cause the composition of the Company Board of Directors to be remain in accordance with Section 3.1(a)3.2(a) hereof. (c) So long as BRS Investors In the event ValueAct Capital, together with its respective Affiliates and their Permitted Transferees together own Transferees, owns in the aggregate more less than 50% of the outstanding Common Stock, the rights of the Company to designate all of the directors of the Company as set forth in paragraph (a) above shall be modified to provide that so long as ValueAct Capital, its Affiliates and Permitted Transferees continue to own Securities of the Company, ValueAct Capital shall have the right to designate the percentage of directors equal to the number of Securities collectively owned by ValueAct Capital, its Affiliates and Permitted Transferees divided by the aggregate number of issued and outstanding shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote Stock. In the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted event this percentage would give ValueAct Capital the right to the holders designate a fraction of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securitiesa director, such transaction treats all of fractional right shall be deemed the holders of the Securities on an equal per share or Securities basisright to designate one additional director.

Directors and Voting Agreements. (a) Each Investor of the parties hereto and each Permitted Transferee (other than a Permitted Transferee pursuant to Section 5.4(e)(iv)) agrees that it shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote Securities owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company shall is composed at all times of at least six persons and not more than nine (or such greater number as may have been approved by the holders of a majority of the outstanding shares of Common Stock then outstanding) persons (with the exact number to be determined by BRS from time to time) as BRS shall determinefollows: (a) so long as the Xxxxx Investors and their Controlled Affiliates (considered as a single Investor) remain a Major Shareholder, one person designated by the trust known as T/D Xxxxxxx X. Xxxxx Dated November 18, 1983 (the "Xxxxx Trust"), (b) so long as the HCCP Entities and their Controlled Affiliates (considered as a single Investor) remain a Major Shareholder, one person designated by the HCCP Entities, (c) so long as the Xxxxx Entities and their Controlled Affiliates (considered as a single Investor) remain a Major Shareholder, one person designated by the Xxxxx Entities, (d) the chief executive officer of the Company and (iie) the individuals such number of persons as may be designated by BRS from time to time who shall constitute the remainder of the Board of Directors; provided that if the number of directors designated by BRS is more than three, such additional directors shall be independent (within the meaning of Rule 3.03 of the rules of the New York Stock Exchange) of the Company and each Investor, and shall have been approved by each of the Xxxxx Entities and the HCCP Entities (so long as they remain Major Shareholders), such approval not to be unreasonably withheld, it being understood that the parties will use their reasonable best efforts to identify and cause to be elected to the Board of Directors two independent directors pursuant to this proviso promptly following the Closing. The right to designate a director is not transferable by the Xxxxx Investors or the Xxxxx Trust, the HCCP Entities or the Xxxxx Entities without the prior written consent of BRS. BRS agrees with the HCCP Entities and the Xxxxx Entities that it will not assign to third parties unaffiliated with BRS the right to designate one or more of the Companyremaining members of the Board of Directors without the prior written consent of the HCCP Entities and the Xxxxx Entities, which consent shall not be unreasonably withheld. In the event BRS transfers to any person other than BRS the right to designate one or more of the remaining members of the Board of Directors, BRS agrees that it shall obtain from such transferee in the agreement relating to the transfer of such right to designate Xxxxx Xxxxxx as a director so director(s) an undertaking by such transferee to vote any Securities owned by it in favor of the persons designated pursuant to clauses (a), (b), (c) and (d) above. So long as the HCCP Entities or the Xxxxx Entities are entitled to designate a director, each of their designees (i) BRS has shall be a member of the foregoing right to designate directors executive committee, if any, of the Company or any committee performing substantially similar functions, and (ii) Xxxxx Xxxxxx is serving as the chief executive officer shall be included on such other committee of the Company. (b) Board of Directors as they may request. Each Investor who is entitled to designate one or more directors shall be entitled to designate a proxy or proxies to attend and Permitted Transferee shall take all necessary action to cause the composition vote at meetings of the Board of Directors of the Company to remain in accordance with Section 3.1(a) (including without limitation voting or causing to vote or acting by written consent with respect to, all shares such committees of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) to cause the Board of Directors of the Company to be in accordance with Section 3.1(a). (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investorstead, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders extent designation of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all of the holders of the Securities on an equal per share or Securities basisproxy is permitted under applicable law.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee agrees that it shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company shall be as BRS shall determine, and (ii) the individuals designated by BRS shall be elected to the "Board of Directors Directors") is composed of eleven (11) directors from the Company. BRS date hereof until December 31, 2011 (the "Reduction Date)." From and after the Reduction Date, each Investor agrees that it shall designate Xxxxx Xxxxxx as a director so long as take, at any time and from time to time, all action necessary (iincluding voting the Common Stock entitled to vote owned by it, calling special meetings of stockholders and executing and delivering written consents) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the Company. (b) Each Investor and Permitted Transferee shall take all necessary action to cause the composition of ensure that the Board of Directors of the Company is composed of ten (10) directors. The members of the Board of Directors shall be designated as follows: (i) so long as ValueAct Capital's Ownership Percentage is greater than or equal to remain in accordance (A) 50%, it shall be entitled to designate six directors (which number shall be reduced to five from and after the Reduction Date), one of whom shall be the chairman of the Board of Directors (the "Chairman"), and two of whom shall be individuals not employed by or affiliated with Section 3.1(aValueAct Capital or any ValueAct Capital Affiliates or the Company; (B) 40% but less than 50%, it shall be entitled to designate four directors, two of whom shall be individuals not employed by or affiliated with ValueAct Capital or any ValueAct Capital Affiliates or the Company; (including without limitation voting C) 25 % but less than 40%, it shall be entitled to designate three directors, one of whom shall be an individual not employed by or causing affiliated with ValueAct Capital or any ValueAct Capital Affiliates or the Company; (D) 10% but less than 25%, it shall be entitled to vote designate two directors; and (E) 5% but less than 10%, it shall be entitled to designate one director; (ii) so long as Centerbridge's Ownership Percentage is greater than or acting equal to (A) 25%, the Centerbridge Fund shall be entitled to designate three directors, one of whom shall be an individual not employed by written consent or affiliated with respect to, all Centerbridge or any of its Affiliates or the Company; provided that for so long as Centerbridge has not Transferred any shares of Common Stock (other than Transfers to Affiliates), the Centerbridge Fund shall continue to be entitled to vote thereon or any other voting capital stock designate three directors in accordance with this clause (A), and clauses (B) - (C) of this Section 3.1(b)(ii) shall not apply; (B) 10% but less than 25%, the Centerbridge Fund shall be entitled to designate two directors and (C) 5%, but less than 10%, the Centerbridge Fund shall be entitled to designate one director; and (iii) the Management Investors as a group shall be entitled to designate two directors, one of whom shall be the Chief Executive Officer of the Company now or hereafter owned or held by Company. If at any time an Investor is no longer entitled to designate directors pursuant to this Section 3.1, such Investor or Permitted Transferee in favor of such Persons) agrees to cause take all action necessary to remove from the Board of Directors of the Company to such Investor's designees and such vacancy shall be in accordance with Section 3.1(a). (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned filled by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all 50% of the holders outstanding Common Stock. If any Major Stockholder's Ownership Percentage is greater than 0% but less than 5%, then such Major Stockholder (or the Centerbridge Fund if such Major Stockholder is Centerbridge) shall have the right to have a representative present at all meetings of the Securities on an equal per share or Securities basis.Board of Directors who shall have all rights as a member of the Board of Directors other than the right to vote at meetings (including all rights to receive information provided to the Board of Directors). As of the date hereof, the Board of Directors shall be composed of: Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxx X. Xxxxxxx, Xxx X.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee agrees that it shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company shall be as BRS shall determine, and (ii) the individuals designated by BRS shall be elected to the “Board of Directors Directors”) is composed of the Company. BRS shall designate Xxxxx Xxxxxx as a director so long as ten (i10) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the Companydirectors. (b) Each The members of the Board of Directors shall be designated as follows: (i) so long as Centerbridge’s Ownership Percentage is greater than or equal to (A) 10%, the Centerbridge Fund shall be entitled to designate two directors (each, a “Centerbridge Director”); provided that for so long as Centerbridge has not Transferred any shares of Common Stock (other than Transfers to Affiliates), the Centerbridge Fund shall continue to be entitled to designate two directors in accordance with this clause (A), and clause (B) of this Section 3.1(b)(i) shall not apply; (B) 5%, but less than 10%, the Centerbridge Fund shall be entitled to designate one Centerbridge Director; (ii) the Management Investors as a group shall be entitled to designate two directors, one of whom shall be the Chief Executive Officer of the Company; and (iii) any remaining seats may be filled by the holders of 50% of the outstanding Common Stock, one of which seats, if any of such seats are filled, shall be filled with an individual not employed by or affiliated with Centerbridge or any of its Affiliates or the Company. If at any time an Investor is no longer entitled to designate directors pursuant to this Section 3.1, such Investor agrees to take all action necessary to remove from the Board of Directors such Investor’s designees and Permitted Transferee such vacancy shall be filled by the holders of 50% of the outstanding Common Stock. If the Major Stockholder’s Ownership Percentage is greater than 0% but less than 5%, then the Major Stockholder shall have the right to have a representative present at all meetings of the Board of Directors who shall have all rights as a member of the Board of Directors other than the right to vote at meetings (including all rights to receive information provided to the Board of Directors). As of the date hereof, the Board of Directors is composed of: (1) Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx, who have been designated pursuant to Section 3.1(b)(ii), (2) Xxxx X. Xxxx and Ash Xxxxxxxxx, who are the Centerbridge Directors, and (3) Xxxx Xxxxxxx and Xxxxxx X. Xxxxxx, who have been designated pursuant to Section 3.1(b)(iii). (c) Subject to the terms and provisions of Section 3.1(d) hereof, each Investor agrees to take all necessary action to cause the composition of the Board of Directors of the Company to remain in accordance with Section 3.1(a) hereof (including including, without limitation limitation, voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of the nomination and election of such Persons) to cause the Board of Directors and to act itself (if a member of the Company Board of Directors) or cause its designee (if any) on the Board of Directors to be vote or act by written consent to cause the composition of the Board of Directors to remain in accordance with Section 3.1(a)) hereof. (cd) So Concurrently with, or immediately prior to, the execution and delivery of this Agreement by the parties hereto, the certificate of incorporation of the Company shall be amended as set forth on Exhibit A to provide, among other things, that: (A) All directors shall be entitled to one (1) vote on all matters brought before the Board of Directors; provided that so long as BRS Investors and their Permitted Transferees together own in Centerbridge’s Ownership Percentage is greater than or equal to 50%, the aggregate more shares Centerbridge Directors shall be entitled, collectively (whether there is one or two Centerbridge Directors at the applicable time), to a total of Common Stock than any other single Investornine (9) votes on all matters brought before the Board of Directors. (e) Any director that is not affiliated with or employed by Centerbridge or the Company shall be entitled to compensation (including option grants) that is customary for “independent” directors of similar companies. (f) Subject to Section 3.6, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all actions of the holders Board of Directors shall require (i) the affirmative vote of at least a majority of the Securities on an equal per share votes of directors present at a duly convened meeting of the Board of Directors at which a majority of the votes of the Board of Directors is present (in person or Securities basistelephonically) or (ii) the unanimous written consent of all Directors.

Directors and Voting Agreements. (a) Each Restricted Investor and Permitted Transferee agrees that it shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Class A Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that (i) the number of directors comprising the Board of Directors of the Company is composed at all times of seven Persons as follows: Kirk Xxxx (xx long as he continues to own Securities); Josexx Xxxxxx (xx long as he continues to own Securities); the President of the Company if either of Kirk Xxxx xx Josexx Xxxxxx xx no longer serving on the Board of Directors, if NSC so chooses, so long as NSC continues to own Securities, one individual designated by NSC provided that such person shall initially be either Briax X. Xxxxx xx Donaxx Xxxxxxx (xxtil the earlier of the second anniversary of the Closing Date or the date upon which such person ceases to be an executive officer of NSC) and thereafter shall be as BRS shall determine, and (ii) an executive officer of NSC reasonably acceptable to the remaining directors; two individuals designated by BRS Sterling; and the remaining directors such independent directors, as shall be elected designated by Sterling (to the extent permitted by applicable law as determined by Sterling in its sole discretion), subject to the right of the Chief Executive Officer of the Company to veto the election of any such independent director, provided, that in the event that Sterling concludes that it is unable to designate, or elects not to designate for any reason, one or more of such independent directors or the election of any such independent director is not approved by the holders of a majority of the outstanding shares of Class A Common Stock, such directorship(s) shall not be filled by the remaining members of the Company's Board of Directors of the Company. BRS but shall designate Xxxxx Xxxxxx as a director so long as (i) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the Company.remain vacant until the (b) Each Investor and Permitted Transferee shall agrees to take all necessary action to cause the composition board of the Board of Directors directors of the Company to remain be as set forth in accordance with Section 3.1(a5.2(a) (including including, without limitation limitation, voting or causing to vote be voted or acting by written consent with respect to, all shares of Common Stock entitled to vote be voted thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) and to act itself (if a member of the board of directors) or cause its nominee (if any) on the board of directors to vote or act by written consent to cause the Board board of Directors directors of the Company to be as set forth in accordance with Section 3.1(a5.2(a). (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all of the holders of the Securities on an equal per share or Securities basis.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee shall take, at any ------------------------------- time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including including, without limitation, voting the Class A Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that the Board of Directors of the Company is composed at all times of up to five persons, determined as follows: (i) the number chief executive officer of the Company; (ii) one individual designated by Vectura; (iii) up to two independent directors, who shall be designated by Vectura (to the extent permitted by applicable law as determined by Vectura in its sole discretion), subject to the right of the holders of a majority of the outstanding shares of Class A Common Stock (including any shares of Class A Common Stock held by Vectura) to veto the election of any such independent director, provided that in the event that Vectura concludes that it is unable to designate, or elects not to designate for any reason, one or more of such independent directors comprising or the election of any such independent director is not approved by the holders of a majority of the outstanding shares of Class A Common Stock, such directorship(s) shall not be filled by the remaining members of the Company's Board of Directors but shall remain vacant until the election of a director designated by Vectura to fill such vacancy in accordance with this Section 6.2; and (iv) at all times, but only at such times, when the Board of Directors of the Company includes two independent directors determined in accordance with clause (iii) of this Section 6.2, one additional individual designated by Vectura, and provided that, notwithstanding clauses (i) through (iv) of this Section 6.2, if Vectura at any time owns of record in excess of 50% of the Class A Common Stock then outstanding, then the Board of Directors of the Company shall be as BRS shall determine, and (ii) the individuals designated by BRS shall be elected to the Board consist of Directors of the Company. BRS shall designate Xxxxx Xxxxxx as a director so long as (i) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the CompanyCompany and up to four individuals designated by Vectura in its sole discretion. The initial directors named pursuant to this Section 6.2 shall be Xxxxxxx X. Xxxxxx; Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxxxx III. (b) Each Investor and Permitted Transferee shall take all necessary action to cause the composition of the Board of Directors of the Company to remain in accordance with Section 3.1(a) (including without limitation voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) to cause the Board of Directors of the Company to be in accordance with Section 3.1(a). (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all of the holders of the Securities on an equal per share or Securities basis.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee agrees that it, he or she shall take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in all Necessary Action to ensure that the aggregate more shares Board of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock Directors of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by himis composed at all times of seven (7) persons, her or it, calling special meetings of stockholders and executing and delivering written consents) to ensure that including (i) Barrist as Chairman of the number Board, (ii) one (1) independent director designated by Barrist and reasonably acceptable to OEP; provided that after Barrist ceases to be Chief Executive Officer of the Company, OEP shall designate such independent director, and (iii) three (3) persons designated by OEP (the “OEP Designees“), and (iv) two (2) persons designated by OEP who shall be independent directors comprising reasonably acceptable to Barrist (the “OEP Independent Directors“ and together with the OEP Designees, the “OEP Directors“). An “independent” director shall mean any natural person designated as “independent” by OEP or Barrist, as the case may be, and who shall not be an Affiliate of or otherwise have a material relationship with the designating Investor. Notwithstanding anything herein contained to the contrary, as of the effective time of the Merger and until OEP and Barrist have designated directors pursuant to this Section 2.2(a), which shall occur a soon as is reasonably practicable after the effective time of the Merger, the Board of Directors of the Company shall be composed of Xxxxxxx X. Xxxxxxx, as BRS Chairman, Xxxxxx X. Selmonosky, Xxxxx X. Xxxxx and Xxxxx X. Xxxxx. (b) Notwithstanding the foregoing Section 2.2(a), each Investor agrees that, in the event that Barrist and his Permitted Transferees together hold less than 25% of the shares of Common Stock owned by him and his Permitted Transferees on the date hereof and Barrist is not the Chief Executive Officer of the Company (“Barrist Minimum Threshold“), such Investor shall determinetake, and (ii) the individuals designated by BRS shall be elected from time to time thereafter, all Necessary Action to ensure that the Board of Directors of the Company. BRS shall designate Xxxxx Xxxxxx as a director so long as , subject to Section 2.2(c) hereof, is composed at all times of seven (i7) BRS has the foregoing right to designate directors and (ii) Xxxxx Xxxxxx is serving as the chief executive officer of the Company. (b) Each Investor and Permitted Transferee shall take all necessary action to cause the composition of the Board of Directors of the Company to remain in accordance with Section 3.1(a) (including without limitation voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) to cause the Board of Directors of the Company to be in accordance with Section 3.1(a)OEP Designees. (c) So long as BRS Investors Notwithstanding an Investor’s obligation to take all Necessary Action with respect to OEP Directors pursuant to the foregoing Sections 2.2(a) and 2.2(b), (i) in the event that OEP and their Permitted Transferees together own in hold less than 25% and at least 12.5% of the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates them and their Permitted Transferees on the date hereof, each Investor shall vote their Securitiesonly be required to take all Necessary Action to ensure that the Board of Directors includes two (2) OEP Designees, provided that, (ii) in the case of any transaction affecting the Securities, such transaction treats all event that OEP and their Permitted Transferees together hold less than 12.5% and at least 5% of the holders shares of Common Stock owned by them and their Permitted Transferees on the date hereof, each Investor shall only be required to take all Necessary Action to ensure that the Board of Directors includes one (1) OEP Designee, and (iii) in the event that OEP and their Permitted Transferees together hold less than 5% of the Securities shares of Common Stock owned by them and their Permitted Transferees on an equal per share or Securities basisthe date hereof, each Investor shall not be required to take any Necessary Action to ensure that the Board of Directors includes any OEP Directors.

Directors and Voting Agreements. (a) Each Investor and Permitted Transferee shall agrees that it will take, at any time and from time to time, so long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, all action necessary (including voting the Common Stock or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee entitled to vote owned by him, her or it, ; calling special meetings of stockholders stockholders; and executing and delivering written consents) to ensure that (i) the authorized number of directors comprising the Board of Directors of on the Company shall Board will be such number as BRS shall determine, determined by the Sponsor but in no event more than seven (7) members and (ii) the individuals designated by BRS shall Company Board will be elected to the Board of Directors comprised of the Company. BRS shall designate Xxxxx Xxxxxx as a director following Persons: (1) so long as the Management Investors and their Permitted Transferees collectively own more than five percent (i5%) BRS has (calculated on a fully-diluted basis, and reflecting any “Restricted Stock” (as such term is defined in the foregoing right Company 2006 Stock Incentive Plan) granted (whether or not vested) to designate the Management Investors and their Permitted Transferees) of all issued and outstanding Common Stock, two directors will be designated by the holders of a majority of the Common Stock held by all Management Investors (the “Management Directors”) and (ii2) Xxxxx Xxxxxx is serving as the chief executive officer balance of the Companydirectors will be such Persons as designated by the Sponsor (the “Sponsor Directors”). The Company Board will initially be comprised of the following five (5) Persons: Muhlschlegel, Xxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxx and Xxxx Xxxxxx. (b) Each Investor and Permitted Transferee shall agrees to take all necessary action to cause the composition of the Board of Directors of the Company directors to remain in accordance with Section 3.1(a) hereof (including including, without limitation limitation, voting or causing to vote or acting by written consent with respect to, all shares of Common Stock entitled to vote thereon or any other voting capital stock of the Company now or hereafter owned or held by such Investor or Permitted Transferee in favor of such Persons) and to act itself (if a member of the Company Board) or cause its designee (if any) on the Company Board to vote or act by written consent to cause the Board of Directors of the Company directors to be in accordance with Section 3.1(a)) hereof. (c) So long as BRS Investors and their Permitted Transferees together own in the aggregate more shares of Common Stock than any other single Investor, each Investor and Permitted Transferee shall vote the Securities owned by such Investor or Permitted Transferees in favor or against any matter submitted to the holders of such class or series of Securities for their approval in the same manner as BRS and BRS Affiliates and their Permitted Transferees shall vote their Securities, provided that, in the case of any transaction affecting the Securities, such transaction treats all of the holders of the Securities on an equal per share or Securities basis.