Common use of Directors and Voting Agreements Clause in Contracts

Directors and Voting Agreements. Each 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, all action necessary (including voting any Securities 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 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 follows: (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 (e) 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 remaining 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 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) shall be a member of the executive committee, if any, of the Company or any committee performing substantially similar functions, and (ii) shall be included on such other committee of the 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 vote at meetings of the Board of Directors of the Company or such committees of the Board of Directors in their stead, to the extent designation of such proxy is permitted under applicable law.

Directors and Voting Agreements. Each of the parties hereto and each Permitted Transferee (other than a Permitted Transferee pursuant to Section 5.4(e)(iv)) Investor agrees that it shall take, at any time and from time to time, all action necessary (including voting any Securities the Common Stock entitled to vote owned by himit, her or calling special meetings of stockholders and executing and delivering written consents) to ensure that the Board of Directors of the Company (the "Board of Directors") is composed of eleven (11) directors from the date hereof until December 31, 2011 (the "Reduction Date)." From and after the Reduction Date, each Investor agrees that it shall take, at any time and from time to time, all action necessary (including voting the Common Stock entitled to vote owned by 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 at least six persons and not more than nine ten (or such greater number as may have been approved by the holders of a majority of the outstanding shares of Common Stock then outstanding10) persons (with the exact number to be determined by BRS from time to time) as follows: (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 (e) 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 Closingdirectors. 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 remaining members of the Board of Directors without the prior written consent of the HCCP Entities and the Xxxxx Entitiesshall be designated as follows: (i) so long as ValueAct Capital's Ownership Percentage is greater than or equal to (A) 50%, 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 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 be entitled to designate a director, each of their designees six directors (i) which number shall be a member reduced to five from and after the Reduction Date), one of the executive committee, if any, of the Company or any committee performing substantially similar functions, and (ii) whom shall be included on such other committee the chairman of the Board of Directors as they may request. Each Investor who is entitled to designate one (the "Chairman"), and two of whom shall be individuals not employed by or more directors affiliated with ValueAct 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; (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 affiliated with ValueAct Capital or any ValueAct Capital Affiliates or the Company; (D) 10% but less than 25%, it shall be entitled to 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 equal to (A) 25%, the Centerbridge Fund shall be entitled to designate three directors, one of whom shall be an individual not employed by or affiliated with 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 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 proxy group shall be entitled to designate two directors, one of whom shall be the Chief Executive Officer of 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 such vacancy shall be filled by the holders of 50% of the outstanding Common Stock. If any Major Stockholder's Ownership Percentage is greater than 0% but less than 5%, then such Major Stockholder (or proxies the Centerbridge Fund if such Major Stockholder is Centerbridge) shall have the right to attend and vote have a representative present at all meetings of the Board of Directors of the Company or such committees who shall have all rights as a member of the Board of Directors in their stead, other than the right to vote at meetings (including all rights to receive information provided to the extent designation Board of such proxy is permitted under applicable law.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 of the parties hereto and each Permitted Transferee (other than a Permitted Transferee pursuant to Section 5.4(e)(iv)) Restricted Investor agrees that it shall take, at any time and from time to time, all action necessary (including voting any Securities the Class A Common Stock 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 at least six persons 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 an executive officer of NSC reasonably acceptable to the remaining directors; two individuals designated by Sterling; and the remaining directors such independent directors, as shall be 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 than nine (of such independent directors or the election of any such greater number as may have been independent director is not approved by the holders of a majority of the outstanding shares of Class A Common Stock then outstanding) persons (with the exact number to be determined by BRS from time to time) as follows: (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 (e) 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 threeStock, such additional directors directorship(s) shall not 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 filled 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 remaining members of the Company's Board of Directors without the prior written consent of the HCCP Entities and the Xxxxx Entities, which consent but 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 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) shall be a member of the executive committee, if any, of the Company or any committee performing substantially similar functions, and (ii) shall be included on such other committee of the 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 vote at meetings of the Board of Directors of the Company or such committees of the Board of Directors in their stead, to the extent designation of such proxy is permitted under applicable law.remain vacant until the

Directors and Voting Agreements. Each of the parties hereto Investor 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, all action necessary (including voting any Securities the Class A Common Stock 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 at least six to nine persons as follows: Xxxxxxxx (so long as he continues to serve as Chairman of the Board of Directors of the Company); one individual designated by Masco who shall initially be X. X. Xxxxxx; two individuals designated by CVC; Xxxxxxx (so long as he continues to serve as an officer of or a consultant to the Company); Xxxxxx X. Xxxxxx (so long as he continues to serve as President of the Company, and when he ceases to serve in such office, his successor in such office); and up to three independent directors, who shall be designated by CVC (to the extent permitted by applicable law as determined by CVC 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 CVC) to veto the election of any such independent director, provided, that in the event that CVC concludes -------- that it is unable to designate, or elects not to designate for any reason, one or more than nine (of such independent directors or the election of any such greater number as may have been independent director is not approved by the holders of a majority of the outstanding shares of Class A Common Stock then outstanding) persons (with the exact number to be determined by BRS from time to time) as follows: (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 (e) 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 threeStock, such additional directors directorship(s) shall not 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 filled 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 remaining members of the Company's Board of Directors without but shall remain vacant until the prior written consent election of the HCCP Entities and the Xxxxx Entities, which consent shall not be unreasonably withheld. In the event BRS transfers a director designated by CVC 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 fill such transferee vacancy in the agreement relating to the transfer of such right to designate 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) shall be a member of the executive committee, if any, of the Company or any committee performing substantially similar functions, and (ii) shall be included on such other committee of the 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 vote at meetings of the Board of Directors of the Company or such committees of the Board of Directors in their stead, to the extent designation of such proxy is permitted under applicable lawaccordance with this Section 5.2.

Directors and Voting Agreements. Each of the parties hereto and each Permitted Transferee (other than a Permitted Transferee pursuant to Section 5.4(e)(iv)) agrees that it Investor shall take, at any ------------------------------- time and from time to time, all action necessary (including including, without limitation, voting any Securities the Class A Common Stock 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 at least six persons and up to five persons, determined as follows: (i) the 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 than nine (of such independent directors or the election of any such greater number as may have been 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) persons (with , then the exact number to be determined by BRS from time to time) as follows: (a) so long as Board of Directors of 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) Company shall consist of the chief executive officer of the Company and (e) such number of persons as may be up to four individuals designated by BRS from time to time who shall constitute the remainder of the Board of Directors; provided that if the number of Vectura in its sole discretion. The initial 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 named 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 remaining 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 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) Section 6.2 shall be a member of the executive committee, if any, of the Company or any committee performing substantially similar functions, Xxxxxxx X. Xxxxxx; Xxxxxxx X. Xxxxxxx and (ii) shall be included on such other committee of the 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 vote at meetings of the Board of Directors of the Company or such committees of the Board of Directors in their stead, to the extent designation of such proxy is permitted under applicable lawXxxxx Xxxxxxxx III.