Common use of Number and Election Clause in Contracts

Number and Election. (a) Subject to Section 14 of this Article III, the number of directors constituting the entire Board of Directors, which shall be not less than three directors, shall be fixed from time to time solely by a resolution passed by a majority of the entire Board of Directors. Subject to the terms of any Preferred Stock of the Corporation then outstanding, directors shall be elected at each annual meeting of stockholders. Subject to Section 14 of this Article III and subject to the terms of any Preferred Stock of the Corporation then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, removal from office or other cause may, unless otherwise required by law or by resolution of the Board of Directors, be filled by a majority vote of the directors then in office, though less than a quorum. Each director elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. (b) Each director shall be elected by the vote of the majority of the votes cast with respect to the director at an annual meeting of stockholders at which a quorum is present; provided that if, as of the tenth day before the Corporation first mails its notice of meeting for the meeting to elect directors, the number of nominees exceeds the number of directors to be elected, the directors shall be elected by the votes of the plurality of the shares represented in person or by proxy at such annual meeting and entitled to vote on the election of directors. A majority of the votes cast in an election of a director shall mean that the number of votes cast “for” a director’s election must exceed the number of votes cast “against” that director’s election and, shares not present, “broker nonvotes” and shares voting “abstain” or “abstentions” shall not be counted as a vote cast either “for” or “against” a director’s election for purposes of determining whether a nominee for director has received a majority of the votes cast. Elections of directors need not be by written ballot. (c) If a nominee for director who is an incumbent director is not elected, the director shall promptly tender such director’s resignation to the Board of Directors. The Corporate Governance Committee will make a recommendation to the Board of Directors as to whether to accept or reject the resignation of such incumbent director, or whether other action should be taken. The Board of Directors will act on the Corporate Governance Committee’s recommendation and publicly disclose (by a press release, a filing with the Securities and Exchange Commission or other broadly disseminated means of communication) its decision regarding the tendered resignation and the rationale behind the decision within 90 days from the date of the certification of the election results. The director who tenders his or her resignation will not participate in the Corporate Governance Committee’s recommendation or the Board of Director’s decision with respect to his or her resignation. In addition, if there are not at least two members of the Corporate Governance Committee who were elected at the annual meeting, then each of the independent members of the Board of Directors who were elected at the meeting shall appoint a committee amongst themselves to consider all resignations tendered and recommend to the Board of Directors whether to accept them (which committee of the independent members shall act in lieu of the Corporate Governance Committee with respect to the resignations tendered in such circumstances). (d) If the incumbent director’s resignation is not accepted by the Board of Directors, such director shall continue to serve until the next annual meeting and until such director’s successor is elected and qualified or such director’s earlier death resignation or removal. If the Board of Directors accepts a director’s resignation pursuant to this Section 2, or if a nominee for director is not elected and the nominee is not an incumbent director, the Board of Directors may fill the resulting vacancy.

Number and Election. Subject to the paragraphs below, the Board of Managers shall consist of three Managers to be elected as follows: (a) Subject to Section 14 of this Article III, for so long as the number of directors constituting the entire Board of Directors, which shall be not less than three directors, shall be fixed from time to time solely by a resolution passed by Investor Group holds a majority of the entire Board issued and outstanding Class A Units, the Investor Group shall have the right to elect two Managers, and (b) for so long as the C3 Entities collectively hold a majority of Directorsthe issued and outstanding Class B Units, the C3 Entities shall have the right to elect one Manager. Subject To the extent that clause (a) above shall not be applicable, any Manager who would otherwise have been designated in accordance with the terms thereof shall instead be elected upon the vote or written consent of the holders of a majority of all of the Membership Units, and to the extent that clause (b) above shall not be applicable, any Manager who would otherwise have been designated in accordance with the terms of any Preferred Stock thereof shall instead be elected upon the vote or written consent of the Corporation then outstanding, directors shall be elected at each annual meeting holders of stockholdersa majority of all the Membership Units. Subject to Section 14 of this Article III and subject to In the terms of any Preferred Stock event of the Corporation then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, removal from office or other cause may, unless otherwise required by law or by resolution of the Board of Directors, be filled by a majority vote of the directors then in office, though less than a quorum. Each director elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal. removal of a Manager, the Members who elected such Manager may elect a successor Manager. On the date hereof, Xxxx Xxxx and Xxxxxxx X. Xxxxx are serving as the Managers elected by the Investor Group, and Xxxxxx Xxxxx is serving as the Manager elected by C3 Entities. Notwithstanding the foregoing: For so long as either C3 Entity continues to hold any Preferred Units or First Amended and Restated 14% Subordinated Notes payable to the C3 Entities (the “Notes”), in the event (such an event, a “Payment Default”) that (a) the Company has not paid any amount of principal or interest on the Notes on the date such payment is due and until such amount is paid by the Company to the C3 Entities, (b) Each director the Company does not make a Redemption Payment on or before the applicable Redemption Deadline to the C3 Entities and until such Redemption Payment is made by the Company to the C3 Entities, or (c) the Company does not make a distribution of cash to the Preferred Unit Holders in an amount equal to the cumulative Priority Return of each such Preferred Unit Holder for the calendar year on or before December 31st of such calendar year and until such distribution of cash is made by the Company to the Preferred Unit Holders, the Board of Managers shall then, and only then (subject to the following paragraph), consist of three Managers to be elected as follows: the Members holding Class A Units shall, by the vote or written consent of the majority holders of the votes cast with respect to the director at an annual meeting of stockholders at which a quorum is present; provided that if, as of the tenth day before the Corporation first mails its notice of meeting for the meeting to elect directors, the number of nominees exceeds the number of directors to be elected, the directors shall be elected by the votes of the plurality of the shares represented in person or by proxy at such annual meeting and entitled to vote on the election of directors. A majority of the votes cast in an election of a director shall mean that the number of votes cast “for” a director’s election must exceed the number of votes cast “against” that director’s election and, shares not present, “broker nonvotes” and shares voting “abstain” or “abstentions” shall not be counted as a vote cast either “for” or “against” a director’s election for purposes of determining whether a nominee for director has received a majority of the votes castClass A Units, have the right to elect one Manager and the C3 Entities shall have the right to elect two Managers (the “Preferred Unit Managers”). Elections of directors need not be by written ballot. (c) If At such time as a nominee for director who Payment Default ceases to continue and so long as no other Payment Default is an incumbent director is not electedcontinuing, the director Preferred Unit Managers shall promptly tender such director’s resignation to the Board of Directors. The Corporate Governance Committee will make a recommendation to the Board of Directors as to whether to accept or reject the resignation of such incumbent director, or whether other automatically and without any further action should be taken. The Board of Directors will act on the Corporate Governance Committee’s recommendation and publicly disclose (by a press release, a filing with the Securities and Exchange Commission or other broadly disseminated means of communication) its decision regarding the tendered resignation and the rationale behind the decision within 90 days from the date part of the certification of C3 Entities, the election results. The director who tenders his or her resignation will not participate in Company, the Corporate Governance Committee’s recommendation Members, or the Board of Director’s decision Managers cease to serve as Managers of the Company and the manner and method for the election of Managers shall revert to the manner and method set forth in the preceding paragraph. The right to elect Managers upon a Payment Default in accordance with respect this paragraph shall not apply to his any transferee or her resignationsubsequent holder of Preferred Units. In additionUpon completion of the computation at the Date of Determination set forth in Section 3(c) of the Nonrecourse Secured Promissory Note, dated November 30, 2011, issued by the Investor Group and payable to the Company in the original principal amount of One Million Two Hundred Seventy Two Thousand Eight Hundred Dollars ($1,272,800), if there are not at least two members the C3 Entities collectively own a majority of the Corporate Governance Committee who were elected at the annual meeting, then each of the independent members of the Board of Directors who were elected at the meeting shall appoint a committee amongst themselves to consider all resignations tendered issued and recommend to the Board of Directors whether to accept them (which committee of the independent members shall act in lieu of the Corporate Governance Committee with respect to the resignations tendered in such circumstances). (d) If the incumbent director’s resignation is not accepted by the Board of Directors, such director shall continue to serve until the next annual meeting and until such director’s successor is elected and qualified or such director’s earlier death resignation or removal. If the Board of Directors accepts a director’s resignation pursuant to this Section 2, or if a nominee for director is not elected and the nominee is not an incumbent directoroutstanding Membership Units, the Board of Directors may fill Managers shall thereafter consist of three (3) Managers to be elected as follows: the resulting vacancyMembers holding Class A Units shall, by vote or written consent of the holders of a majority of the Class A Units, have the right to elect one Manager and the C3 Entities shall have the right to elect two (2) Managers.