Common use of Other Restrictions Clause in Contracts

Other Restrictions. Except as otherwise specifically authorized in advance by the Board, during the term of this Agreement, each Shareholder agrees that it will not, for the purpose of proposing or acting upon a proposal regarding acquisition of control of the Company, directly or indirectly: (a) initiate, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect to the voting of any equity securities of the Company or become a “participant” in any “election contest” with respect to the Company; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board; (d) call or seek to have called any meeting of the shareholders of the Company; (e) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) deposit any equity securities of the Company into a voting trust or subject any equity securities to any arrangement or agreement with respect to the voting thereof (other than this Agreement); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (g) make any public statement or proposal whatsoever with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or (h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions; provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholders.

Other Restrictions. Except as otherwise specifically authorized in advance by Each of the Board, during the term of this Agreement, each Shareholder agrees that it will Investors shall not, for the purpose of proposing or acting upon a proposal regarding acquisition of control of the Companyand will cause its controlled Affiliates not to, directly or indirectly, alone or in concert with others, unless specifically requested in writing by the Chief Executive Officer of the Company or by a resolution of the Company Board, take any of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following: (a) initiateeffect, seek, offer, engage in, propose (whether publicly or in any way otherwise) or cause or participate in, or assist any other Person to effect, seek, engage in, offer, cause, propose (whether publicly or otherwise) or participate in: (i) any acquisition of beneficial ownership of Voting Securities of the Company which would result in a breach of Section 6.1 of this Agreement; (ii) any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any material portion of its business or any purchase of all or any substantial part of the assets of the Company or any material portion of its business; provided that, if such transaction is being conducted by a third-party unaffiliated with such Investor, the foregoing shall not prevent such Investor from tendering, exchanging, exercising voting rights in respect of, or otherwise exercising rights in respect of and opting to receive the benefit of such transactions in the same manner as offered to other holders of the Company’s Common Stock not participating in the “group” (as such term is used in Section 13(d)(3) of the Exchange Act) conducting such transaction; or (iii) any “solicitation” of “proxies” to vote (as such terms are defined used in Rule 14a-1 under the Exchange Act)proxy rules of the SEC, solicit any consent or communicate with or seek but without regard to advise or influence any Person the exclusion set forth in Section 14a-1(l)(2)(iv) from the definition of “solicitation”) with respect to the voting of any equity securities of the Company or become any of its Affiliates or any action resulting in the Stockholder, or any of its controlled Affiliates, or such other Person becoming a “participant” in any “election contest” with respect to the Company; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described such terms are used in Rule 14a-8 under the Exchange Act or otherwiseproxy rules of the SEC) with respect to the CompanyCompany or any of its Subsidiaries. (b) propose any matter for submission to a vote of stockholders of the Company or any of its Affiliates; (c) seek election to, nominate seek to place a candidate forrepresentative on, or seek the removal of any member of, any director of the BoardCompany or any of its Affiliates; (d) call or seek except as contemplated by this Agreement and except for proxies granted to have called any meeting Affiliates of the shareholders Stockholder (and their respective employees, attorneys and agents (other than Persons who are attorneys and agents solely as a result of the granting of such proxy), grant any proxy with respect to any Capital Stock of the Company; (e) form, join or in any way participate in or assist in the formation of any a “group” within the meaning of (as such term is used in Section 13(d)(3) of the Exchange Act Act) with respect to any equity securities Capital Stock of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) or deposit any equity securities Capital Stock of the Company into in a voting trust or or, except as contemplated by this Agreement, subject any equity securities Capital Stock of the Company to any arrangement or agreement with respect to the voting thereof of such Capital Stock or other agreement having similar effect; (f) take any other than actions to seek to affect the control of the Company Board or the management of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to engage in or have another Person engage in a transaction that could reasonably be expected to result in a business combination or to increase the percentage of Capital Stock owned by the Investor; provided that from and after the first anniversary of this Agreement); provided, that this Section 3.5 each Investor and its Affiliates shall not prohibit any such arrangement among each Shareholder and any be prohibited by this clause (g) from acquiring Capital Stock of their respective Affiliatesthe Company; (g) make enter into any public statement discussions, negotiations, arrangements or proposal whatsoever understandings with any Persons with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assetsforegoing, or advise, assist, encourage or seek to persuade others to take any restructuring, recapitalization or similar transaction action with respect to any of the Companyforegoing; or (h) propose disclose to amend or modify, any Person (other than an Affiliate) or otherwise actinduce, alone encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in concert Article II or form any such intention which would result in the Company or any of its Affiliates or any Investor or any of its Affiliates being required to make any such disclosure in any filing with othersa Governmental Authority or being required to make a public announcement with respect thereto; provided, in a manner designed or having the deliberate effect of circumventinghowever, that notwithstanding the foregoing restrictions, each Investor shall be entitled to make any disclosure required by securities or similar disclosure laws, as advised in writing by outside counsel reasonably familiar with such matters; provided provided, further that the Stockholder shall not be prohibited from requesting that the Company Board consider nominating a designee of the Stockholder for election to the Company Board and, if so elected, from assisting such designee in the conduct of such designee’s office and the fulfillment of such designee’s fiduciary duties in such office. Subject to Section 7.1, nothing in this Agreement, including this Section 3.5 6.2, will prohibit, limit, condition or delay each Investor’s ability (i) to vote (including by proxy) or consent with respect to any matter properly brought before stockholders of the Company for a vote or consent, or (ii) to tender or exchange its shares); provided, further, that the Stockholder shall prohibit not be required to take any individual who is serving such action as a director result of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests request of the Company’s shareholdersCompany or a resolution of the Company Board, but, if so requested, prior to receipt of written notice from the Company to the contrary, the Stockholder may continue to take such actions that are reasonably related to the matters addressed in, reasonably in furtherance of, and not in conflict with, such request or resolution and, if available, the publicly stated position of the Company with respect to the matters addressed therein.

Other Restrictions. Except as otherwise specifically authorized expressly set forth in advance by the Board, during the term of this AgreementArticle II, each Shareholder covenants and agrees with the Company that such Shareholder shall not, and it will notcause its Affiliates not to, for directly or indirectly, alone or in concert with others, unless specifically requested in writing by the purpose Chief Executive Officer of proposing the Company or acting upon by a proposal regarding acquisition resolution of control a majority of the Directors of the Company, directly take any of the actions set forth below (or indirectly:take any action that would require the Company to make an announcement regarding any of the following): (a) initiateeffect, seek, offer, engage in, propose (whether publicly or in any way otherwise) or cause or participate in, or assist any “other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in (other than through the making of any Transfer permitted by the terms of this Agreement): (i) any acquisition of Beneficial Ownership of Voting Shares which would result in a breach of Section 4.01 of this Agreement; (ii) any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any material portion of its business or any purchase of all or any substantial part of the assets of the Company or any material portion of its business; or (iii) any "solicitation” " of “"proxies” to vote " (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek proxy rules of the SEC but without regard to advise or influence any Person the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of "solicitation") with respect to the voting Company or any of its Affiliates or any action resulting in any Shareholder, any Affiliates of any equity securities Shareholder, or such other Person becoming a "participant" in any "election contest" (as such terms are used in 26 22 the proxy rules of the Company or become a “participant” in any “election contest” SEC) with respect to the CompanyCompany or any of its Subsidiaries; (b) initiate, propose any matter for submission to a vote of shareholders of the Company or otherwise solicit shareholders for the approval any of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Companyits Affiliates; (c) seek election to, nominate seek to place a candidate forrepresentative (other than the Family Designees) on, or seek the removal of any member of, the Boardany Director, except pursuant to Section 2.01; (d) call grant any proxy with respect to any Voting Shares (other than to a Shareholder, its Affiliates or seek to have called any meeting of the shareholders Chief Executive Officer of the Company); (e) formexcept as contemplated by this Agreement, join or in execute any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act written consent with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective AffiliatesVoting Shares; (f) form, join or participate in a Group with respect to any Voting Shares or deposit any equity securities of the Company into Voting Shares in a voting trust or subject any equity securities Voting Shares to any arrangement or agreement with respect to the voting thereof of such Voting Shares or other agreement having similar effect (other than this Agreement); providedin each case except among Shareholders, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder Permitted Transferees and any of their respective Affiliates); (g) make take any public statement other action to seek to affect the control of the management or proposal whatsoever with respect Board of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to any engage in or have another Person engage in a transaction that could reasonably be expected to result in a business combination transaction involving or to increase the Company, including, without limitation, a merger, exchange offer or liquidation ownership percentage of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or (h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictionsShareholders; provided that nothing in this Section 3.5 4.02(g) shall prohibit restrict the manner in which (A) a Shareholder, a Permitted Transferee or any individual who is serving as of their respective Affiliates may vote its shares or (B) a director Family Designee, Shareholder or Affiliate thereof, may (i) vote on any matter submitted to the Board or (ii) participate in deliberations or discussions of the Company, solely Board or take any other action in his or her capacity as a Director or officer of the Company (so long as such directoractions do not otherwise violate any other provision of Section 4.01 or Section 4.02); (h) enter into any discussions, from taking negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in each case except among Shareholders, Permitted Transferees and their respective Affiliates); (i) disclose to any Person (other than a Shareholder, Permitted Transferee or making their respective Affiliates), or otherwise induce, encourage, discuss or facilitate, any statement whichintention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in Article III or form any such director’s best judgment, is intention which would result in the best interests Company or any of its Affiliates or any Shareholder or any Affiliates of any Shareholder being required to make any such disclosure in any filing with a Governmental Entity (as defined in the Merger Agreement) or being required to make a public announcement with respect thereto; or (j) request the Company or any of its Affiliates, directors, officers, employees, representatives, advisors or agents, directly or indirectly, to amend or waive this Agreement (including this Section 4.02) or the statutes or by-laws (or similar constituent documents) of the Company’s shareholdersCompany or any of its Affiliates.

Other Restrictions. Except as otherwise specifically authorized in advance by For a period commencing immediately following the BoardEquity Closing and ending on the Expiration Date, during the term of this Agreementno FRG Investor shall, each Shareholder agrees that it will notnor shall any FRG Investor permit its Affiliates, for the purpose of proposing or acting upon a proposal regarding acquisition of control of the Company, directly or indirectlyto: (i) make, initiate, solicit or submit a proposal (public or otherwise) for, or offer of (with or without conditions), any merger, consolidation, business combination, tender or exchange offer of or for (i) a material portion of the assets, properties or businesses of the Company or any of its Subsidiaries or (ii) any of their respective Equity Securities (provided, that, nothing in this clause (a) initiate, shall restrict any tender of shares in any such tender or exchange); (ii) make or in any way participate in, in any “solicitation” of “proxies” to vote (as such terms are defined in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect to the voting of any equity securities of the Company or become a “participant” in any “election contest” with respect to (as such terms are used in the Companyproxy rules of the Exchange Act); (biii) initiate, propose any matter for submission to a vote of stockholders of the Company or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board; (d) call or seek to have called any call a meeting of the shareholders stockholders of the Company; (eiv) form, join or in grant any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act proxies with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) deposit any equity voting securities of the Company into to any Person or deposit any voting securities of the Company in a voting trust or subject enter into any equity securities to any arrangement or other agreement with respect to the voting thereof (other than this Agreement); providedas recommended by the Board, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliatesincluding in a proxy solicitation distributed by the Company; (gv) make other than as a result of this Agreement, form or join any public statement or proposal whatsoever 13D Group with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation voting securities of the Company’s assets, or Company with any restructuring, recapitalization or similar transaction with respect to Persons other than the CompanyFRG Investors and their Affiliates; or (hvi) propose to amend or modify, or otherwise acttake any action, alone or in concert with othersother Persons, in a manner designed to remove or having oppose the deliberate effect election of circumventingany Directors or to seek to change the size or composition of the Board. Notwithstanding the foregoing, and for the avoidance of doubt, none of the foregoing restrictions; provided that nothing restrictions in this Section 3.5 3(b) shall prohibit limit or restrict the ability of an FRG Investor or any individual who is serving of their respective Affiliates to (A) privately respond to requests for assistance from, or privately provide advice or assistance or perspectives to, Company management from time to time, (B) act as a director of the CompanyCompany or a Board observer, solely (C) enforce any rights or obligations or exercise any remedies in his or her its capacity as such directora lender to the Company or any Subsidiary thereof, from taking or (D) exercise any action rights or making any statement whichremedies under this Agreement, in such director’s best judgment, is in the best interests of the Company’s shareholdersincluding pursuant to Section 6 hereof.

Other Restrictions. Except as otherwise specifically authorized Each Stockholder covenants and agrees, severally and not jointly with any other Stockholder, with the Company that, until the earlier of the fifth anniversary of the Closing Date and the first date upon which such Stockholder, together with its Counted Permitted Transferees, beneficially owns Voting Securities that represent in advance by the Boardaggregate less than 5% of the Total Voting Power, during the term of this Agreement, each Shareholder agrees that it will such Stockholder shall not, for and shall not cause any of its Affiliates to, directly or indirectly, alone or in concert with others, take any of the purpose actions set forth below (or take any action that would require the Company to make an announcement regarding any of proposing the following): (i) except as expressly permitted by Sections 2.02(a) or acting upon a proposal regarding acquisition 2.02(b), effect, seek, offer, engage in, propose (whether publicly or otherwise) or cause or participate in, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in any tender or exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution, share exchange or other extraordinary transaction involving the Company or any material portion of its business or any purchase of all or any substantial part of the assets of the Company or any material portion of its business; (ii) take or propose to take any action to seek to affect the control of the management of the Company or any of the businesses, operations or policies of the Company, directly or indirectly: including through (aA) initiate, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect proxy rules of the SEC but without regard to the voting exclusion set forth in Section 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any equity securities of the Company or become a “participant” in consents to any “election contest” action from any holder of any Voting Securities, (B) publicly announcing its desire to affect the control of the management or policies of the Company or (C) any filings with respect to the Companyany government or judicial authority; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board; (diii) call or seek to have called any call a special meeting of the shareholders stockholders of the Company or nominate any person as a Director or propose any matter to be voted upon by the stockholders of the Company; (e) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (fiv) deposit any equity securities of the Company into a voting trust or subject any equity securities of the Company to any agreement or arrangement or agreement with respect to the voting thereof of such securities with any third party , other than any agreement or arrangement set forth in the organizational documents of such Stockholder; (v) seek to amend or waive any provision of Section 3.01 (other than this Agreementa proposal made privately to the Board in a manner that is not intended to result in the Company being required to make any public disclosure or other public announcement related to such proposal); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (gvi) take any action, make any public statement statement, or proposal whatsoever disclose any intention, that to such Stockholder’s knowledge is inconsistent with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Companyforegoing; or (hvii) propose to amend enter into any discussions, negotiations, arrangements or modifyunderstandings with any Person inconsistent with any of the foregoing, or otherwise actadvise, alone assist or encourage any Person in concert connection with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions; provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholdersforegoing.

Other Restrictions. Except as otherwise specifically authorized in advance by Each of Xxxx Xxxxx and each Vulcan Stockholder covenants and agrees with the BoardCompany that they shall not, during and shall cause each of their Affiliates (other than any such Affiliate that is listed on a national securities exchange) not to, and each of Xxxxxx Xxxxxxxxx and DW Lips covenants and agrees with the term Company that they shall not, and shall cause each Xxxxxxxxx Party not to, prior to the earlier of (i) the fifth anniversary of the date of this Agreement, each Shareholder agrees that it will not, for Agreement and (ii) the purpose of proposing or acting upon a proposal regarding acquisition of control of the CompanyKG Termination Date, directly or indirectly:, alone or in concert with others, unless specifically requested in writing by a Principal Holder or by a resolution of a majority of the Directors or pursuant to a transaction (x) in which the Company has entered into a definitive agreement or (y) the Board has recommended in favor of, take any of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following): (a) initiateeffect, seek, offer, engage in, propose (whether publicly or in any way otherwise) or cause or participate in, or assist any “other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in: (i) any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any material portion of its or their business or any purchase of all or any substantial part of the assets of the Company or any of its subsidiaries or any material portion of its or their business; or (ii) any "solicitation” " of “"proxies” to vote " (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek proxy rules of the SEC but without regard to advise or influence any Person the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of "solicitation") with respect to the voting Company or any of its Affiliates or any equity securities action resulting in Xxxx Xxxxx, Vulcan, any Affiliate of Xxxx Xxxxx or Vulcan or such other Person becoming a "participant" in any "election contest" (as such terms are used in the proxy rules of the Company or become a “participant” in any “election contest” SEC) with respect to the CompanyCompany or any of its subsidiaries; (b) initiate, propose any matter for submission to a vote of stockholders of the Company or otherwise solicit shareholders for call or seek to call a meeting of the approval stockholders of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate seek to place a candidate for, representative on or seek the removal of any member ofDirector, except the BoardClass C Director pursuant to the Charter; provided, however, that nothing in this Section 4.02(c) shall restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; (d) call or seek grant any proxy with respect to have called any meeting Common Stock (other than to a Principal Holder, the Chief Executive Officer of the shareholders Company or a bona fide financial institution in connection with a bona fide recourse borrowing); (e) execute any written consent with respect to any Common Stock other than in respect of the election or removal of the Class C Director or at the request of a Principal Holder or the Chief Executive Officer of the Company; (ef) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act a Group with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) Common Stock or deposit any equity securities of the Company into Common Stock in a voting trust or subject any equity securities Common Stock to any arrangement or agreement with respect to the voting thereof of such Common Stock or other agreement having similar effect (other than this Agreementin each case except with the Class B Holders); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (g) make except pursuant to the Charter as it relates to the Class C Director, take any public statement or proposal whatsoever with respect other action to any business combination transaction involving seek to affect the Company, including, without limitation, a merger, exchange offer or liquidation control of the Company’s assets, management or Board of the Company or any restructuringof its Affiliates, recapitalization including publicly suggesting or similar transaction with respect announcing its willingness to the Company; or (h) propose to amend engage in or modify, or otherwise act, alone or in concert with others, have another Person engage in a manner designed or having transaction that could reasonably be expected to result in a transaction of the deliberate effect of circumventingtype described in Section 4.02(a)(i); provided, the foregoing restrictions; provided however, that nothing in this Section 3.5 4.02(g) shall prohibit restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; (h) enter into any individual who is serving discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in each case except with the Class B Holders); (i) disclose to any Person, or otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in Article III or which would result in the Company or any of its Affiliates or any Class B Holder or any Affiliates of any Class B Holder being required to make any such disclosure in any filing with a governmental entity or being required to make a public announcement with respect thereto; (j) bring any action or otherwise act to contest the validity of this Article IV (including this Section 4.02) or seek a release from the restrictions contained in this Article IV; or (k) request the Company or any of its Affiliates, directors, officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, to amend or waive this Article IV, the Charter or the Restated By-laws (or similar constituent documents) of the Company or any of its Affiliates (except for such amendments and waivers relating to the rights, powers or preferences of the Class C Stock or the Class C Director). Each of Xxxx Xxxxx and each Vulcan Stockholder covenants and agrees with the Company that they shall not cause any of their respective Affiliates that are listed on a national securities exchange to take any of the actions prohibited by this Section 4.02 and will not vote any securities of any such Affiliate in favor of the taking of such actions (in each case, as if this Section 4.01 applied to such Affiliates). Notwithstanding the foregoing, nothing in this Section 4.02 shall in any way restrict the Class C Director, in his capacity as a director Director or Board committee member, from exercising his or her fiduciary duties and taking any action in such capacity (including voting in his capacity as a Director or Board committee member) that he deems to be in the best interest of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholders.

Other Restrictions. Except as otherwise expressly set forth in Article II, Stockholder covenants and agrees with the Company that Stockholder shall not, and it will cause its Subsidiaries not to, directly or indirectly, alone or in concert with others, unless specifically authorized 17 7 13 requested in advance writing by the Board, during Chief Executive Officer of the term Company or by a resolution of this Agreement, each Shareholder agrees that it will not, for a majority of the purpose of proposing or acting upon a proposal regarding acquisition of control Directors of the Company, directly take any of the actions set forth below (or indirectlytake any action that would require the Company to make an announcement regarding any of the following); provided, however, that Stockholder shall not be required to take any such action as a result of the request of the Company: (a) initiateeffect, seek, offer, engage in, propose (whether publicly or in any way otherwise) or cause or participate in, or assist any “other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in: (i) any acquisition of Beneficial Ownership of Voting Shares which would result in a breach of Section 4.1 of this Agreement; (ii) any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any material portion of its business or any purchase of all or any substantial part of the assets of the Company or any material portion of its business; or (iii) any "solicitation” " of “"proxies” to vote " (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect proxy rules of the SEC but without regard to the voting exclusion set forth in Section 14a- 1(1)(2)(iv) from the definition of any equity securities of the Company or become a “participant” in any “election contest” with respect to the Company; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise"solicitation") with respect to the CompanyCompany or any of its Affiliates or any action resulting in Stockholder, any of its Subsidiaries, or such other Person becoming a "participant" in any "election contest" (as such terms are used in the proxy rules of the SEC) with respect to the Company or any of its Subsidiaries. (b) propose any matter for submission to a vote of shareholders of the Company or any of its Affiliates; (c) seek election to, nominate seek to place a candidate forrepresentative (other than the Designee) on, or seek the removal of any member of, the Boardany Director, except pursuant to Section 2.1; (d) call or seek except as contemplated by this Agreement, grant any proxy with respect to have called any meeting of the shareholders of the CompanyVoting Shares; (e) formexcept as contemplated by this Agreement, join or in execute any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act written consent with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective AffiliatesVoting Shares; (f) form, join or participate in a Group with respect to any Voting Shares or deposit any equity securities of the Company into Voting Shares in a voting trust or subject any equity securities Voting Shares to any arrangement or agreement with respect to the voting thereof (of such Voting Shares or other than this Agreement); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliatesagreement having similar effect; (g) make take any public statement other action to seek to affect the control of the management or proposal whatsoever with respect Board of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to any engage in or have another Person engage in a transaction that could reasonably 18 14 be expected to result in a business combination transaction involving or to increase the Company, including, without limitation, a merger, exchange offer or liquidation ownership percentage of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or (h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictionsStockholder; provided that nothing in this Section 3.5 4.2(g) shall prohibit restrict the manner in which the Designee may (i) vote on any individual who is serving as a director matter submitted to the Board or (ii) participate in deliberations or discussions of the Company, solely Board (so long as such actions do not otherwise violate any other provision of Section 4.1 or Section 4.2) in his or her capacity as a Director so long as such directoraction is required by the Designee's fiduciary duty to the Company or its shareholders or by securities or similar laws, from taking in each case as advised by outside counsel to the Designee (to the extent practicable under the then-existing circumstances); (h) enter into any discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing; (i) disclose to any Person (other than an Affiliate), or making otherwise induce, encourage, discuss or facilitate, any statement whichintention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in Article III or form any such director’s best judgment, is intention which would result in the best interests Company or any of its Affiliates or Stockholder or any of its Affiliates being required to make any such disclosure in any filing with a Governmental Authority or being required to make a public announcement with respect thereto; or (j) request the Company or any of its Affiliates, directors, officers, employees, representatives, advisors or agents, directly or indirectly, to amend or waive this Agreement (including this Section 4.2) or the articles of amalgamation or bylaws (or similar constituent documents) of the Company or any of its Affiliates; provided, however, that notwithstanding the foregoing restrictions, Stockholder shall be entitled to make any disclosure required by securities or similar disclosure laws, as advised in writing by outside counsel reasonably satisfactory to the Company’s shareholders.

Other Restrictions. Except During the Standstill Period and subject to Section 4.01(c), neither Parent nor the Investor shall, and neither Parent nor the Investor shall cause their respective Affiliates to, except through any actions of any of its Investor Designees in their capacities as otherwise specifically authorized Directors, directly or indirectly, alone or in advance concert with others, take any of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following): (i) except as expressly permitted by Section 3.02(a) in connection with a Qualified Transfer, effect, seek, offer, engage in, propose (whether publicly or otherwise) or participate in, assist any other Person to effect, seek, offer, engage in, propose (whether publicly or otherwise) or participate in, or solicit, initiate, encourage or facilitate any offer or proposal for, or any indication of interest in, any tender or exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, share exchange, sale, disposition, purchase, acquisition or other extraordinary transaction involving the BoardCompany, during any of its Subsidiaries or any material portion of any of their respective businesses or assets; provided that Parent or the term of this AgreementInvestor may make a proposal privately to the Board (which proposal (A) shall not be publicly disclosed by Parent or the Investor and (B) the Board can accept or reject in its sole discretion) in a manner that is not intended to and would not reasonably be likely to result in the Company being required to make any public disclosure or other public announcement related to such proposal; (ii) arrange, each Shareholder agrees that it will notor in any way participate in, any financing for the purpose purchase of proposing any Voting Securities or acting upon a proposal regarding acquisition of control any securities convertible or exchangeable or exercisable for any Voting Securities or assets of the Company, directly except for such Voting Securities or indirectly:assets as are then being offered for sale by the Company or any of its Subsidiaries; (aiii) initiatemake, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1 14a‑1(l)(2)(iv) under the Exchange Act)Act from the definition of “solicitation”) to vote or deliver a written consent with respect to, solicit any consent or communicate with or seek to advise or influence in any manner whatsoever any Person with respect to the voting of, any Voting Securities on any matter (whether or not relating to the election or removal of Directors) or agree or announce its intention to vote with any equity securities Person undertaking a “solicitation,” except to the extent required by applicable Law; (iv) take or propose to take any action to seek or propose (whether through public announcement, filings with any Governmental Authority or otherwise) to control, change or influence the management, Board or policies of the Company or become a “participant” in any “election contest” with respect to the Companyof its Subsidiaries; (bv) initiateseek, propose alone or otherwise solicit shareholders for the approval of in concert with any shareholder proposal other Person, (as described in Rule 14a-8 under the Exchange Act or otherwiseA) with respect to the Company; (c) seek election to, nominate call a candidate for, or seek the removal of any member of, the Board; (d) call or seek to have called any meeting of the shareholders stockholders of the Company or initiate any stockholder proposal for action by stockholders of the Company, (B) additional representation on the Board or nominate or remove any person as a Director, (C) a change in the composition or size of the Board or (D) to propose any other matter to be voted upon by the stockholders of the Company; (e) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (fvi) deposit any equity securities of the Company into a voting trust or subject any equity securities Voting Securities to any agreement or arrangement or agreement (including by granting any proxies with respect to the Voting Securities to any third party with respect to the voting thereof (of such Voting Securities with any third party, other than this Agreement); provided, that this Section 3.5 shall not prohibit pursuant to any such agreement or arrangement among each Shareholder and any of their respective Affiliatesthe Investor set forth in the organizational or governance documents of the Investor existing on the date hereof; (gvii) make form, join or in any public statement or proposal whatsoever way participate in a 13D Group with respect to any business combination transaction involving the Company, including, without limitation, Voting Securities (other than a merger, exchange offer or liquidation 13D Group composed of the Company’s assetsInvestor); (viii) seek to amend or waive any provision of this Section 4.01, provided that Parent or the Investor may make a proposal privately to the Board (which the Board can accept or reject in its sole discretion) in a manner that is not intended to and would not reasonably be likely to result in the Company being required to make any public disclosure or other public announcement related to such proposal; (ix) take any action, make any statement or publicly disclose any intention, plan, arrangement or other contract that is prohibited by, or inconsistent with, any restructuring, recapitalization or similar transaction with respect to of the Companyforegoing; or (hx) propose to amend enter into any discussions, negotiations, arrangements or modifyunderstandings with any Person inconsistent with any of the foregoing, or otherwise actadvise, alone assist or encourage any Person in concert connection with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions; provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholdersforegoing.

Other Restrictions. Except as otherwise specifically authorized Each of Paul Allen and each Vulcan Stockholder covenants and agrees with the Xxxxxxx xhat they (x) shall not, (y) shall cause each of their respective Affiliates Controlled By any of them (other than any such Affiliate that is listed on a national securities exchange) not to and (z) shall use their reasonable best efforts to cause each of their respective Affiliates not Controlled By any of them (other than any such Affiliate that is listed on a national securities exchange) not to, in advance by each case, prior to the Board, during earlier of (i) the term fifth anniversary of the date of this Agreement, each Shareholder agrees that it will not, for Agreement and (ii) the purpose of proposing or acting upon a proposal regarding acquisition of control of the CompanyKG Termination Date, directly or indirectly:, alone or in concert with others, unless specifically requested in writing by a Principal Holder or by a resolution of a majority of the Directors or pursuant to a transaction (x) in which the Company has entered into a definitive agreement or (y) the Board has recommended in favor of, take any of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following): (a) initiateeffect, seek, offer, engage in, propose (whether publicly or in any way otherwise) or cause or participate in, or assist any “other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in: (i) any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any material portion of its or their business or any purchase of all or any substantial part of the assets of the Company or any of its subsidiaries or any material portion of its or their business; or (ii) any "solicitation” " of “"proxies” to vote " (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek proxy rules of the SEC but without regard to advise or influence any Person the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of "solicitation") with respect to the voting Company or any of its Affiliates or any equity securities action resulting in Paul Allen, DWI II, any Affiliate of Paul Allen or DWI II or such otxxx Person becoming a "participxxx" xx xxy "election contest" (as such terms are used in the proxy rules of the Company or become a “participant” in any “election contest” SEC) with respect to the CompanyCompany or any of its subsidiaries; (b) initiate, propose any matter for submission to a vote of stockholders of the Company or otherwise solicit shareholders for call or seek to call a meeting of the approval stockholders of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate seek to place a candidate for, representative on or seek the removal of any member ofDirector, except the BoardClass C Director pursuant to the Charter; provided, however, that nothing in this Section 4.02(c) shall restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; (d) call or seek grant any proxy with respect to have called any meeting Common Stock (other than to a Principal Holder, the Chief Executive Officer of the shareholders Company or a bona fide financial institution in connection with a bona fide recourse borrowing); (e) execute any written consent with respect to any Common Stock other than in respect of the election or removal of the Class C Director or at the request of a Principal Holder or the Chief Executive Officer of the Company; (ef) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act a Group with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) Common Stock or deposit any equity securities of the Company into Common Stock in a voting trust or subject any equity securities Common Stock to any arrangement or agreement with respect to the voting thereof of such Common Stock or other agreement having similar effect (other than this Agreementin each case except with the Class B Holders); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (g) make except pursuant to the Charter as it relates to the Class C Director, take any public statement or proposal whatsoever with respect other action to any business combination transaction involving seek to affect the Company, including, without limitation, a merger, exchange offer or liquidation control of the Company’s assets, management or Board of the Company or any restructuringof its Affiliates, recapitalization including publicly suggesting or similar transaction with respect announcing its willingness to the Company; or (h) propose to amend engage in or modify, or otherwise act, alone or in concert with others, have another Person engage in a manner designed or having transaction that could reasonably be expected to result in a transaction of the deliberate effect of circumventingtype described in Section 4.02(a)(i); provided, the foregoing restrictions; provided however, that nothing in this Section 3.5 4.02(g) shall prohibit restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; (h) enter into any individual who is serving discussions, negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in each case except with the Class B Holders); (i) disclose to any Person, or otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in Article III or which would result in the Company or any of its Affiliates or any Class B Holder or any Affiliates of any Class B Holder being required to make any such disclosure in any filing with a governmental entity or being required to make a public announcement with respect thereto; (j) bring any action or otherwise act to contest the validity of this Article IV (including this Section 4.02) or seek a release from the restrictions contained in this Article IV; or (k) request the Company or any of its Affiliates, directors, officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, to amend or waive this Article IV, the Charter or the Restated By-laws (or similar constituent documents) of the Company or any of its Affiliates (except for such amendments and waivers relating to the rights, powers or preferences of the Class C Stock or the Class C Director). Each of Paul Allen and each Vulcan Stockholder covenants and agrees with the Xxxxxxx xhat they shall not cause any of their respective Affiliates that are listed on a national securities exchange to take any of the actions prohibited by this Section 4.02 and will not vote any securities of any such Affiliate in favor of the taking of such actions (in each case, as if this Section 4.01 applied to such Affiliates). Notwithstanding anything herein to the contrary, nothing in Section 4.01 or this Section 4.02 shall in any way restrict Paul Allen or any Vulcan Stockholder or the Class C Director, in thexx xxxxxxxy as a director or board committee member of the CompanyCompany or any non-wholly owned Affiliate, solely from exercising their fiduciary duties in his or her such capacity (including voting in their capacity as such director, from taking any action a director or making any statement which, in such director’s best judgment, is board committee member) as they deem to be in the best interests interest of the Company’s shareholdersCompany or such non-wholly owned Affiliate, as applicable. For purposes hereof, the term "non-wholly owned Affiliate" shall mean an Affiliate of Paul Allen or any Vulcan Stockholder any portion of the equity of whxxx xx xxxed by a Person that is not (1) a Vulcan Party or (2) an officer, director, employee or other representative of a Vulcan Party.

Other Restrictions. Except Each Stockholder covenants and agrees, severally and not jointly with any other Stockholder, with the Company that, until the earlier of the fifty-four (54) month anniversary of the Closing Date and the first date upon which such Stockholder, together with its Counted Permitted Transferees, beneficially owns Voting Securities that represent in the aggregate less than 5% of the Total Voting Power, such Stockholder shall not, and shall not cause any of its Affiliates to, directly or indirectly, alone or in concert with others, take any of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following): (i) except as otherwise specifically authorized expressly permitted by Sections 2.02(a) or 2.02(b), effect, seek, offer, engage in, propose (whether publicly or otherwise) or cause or participate in, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in advance by any tender or exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution, share exchange or other extraordinary transaction involving the Board, during Company or any material portion of its business or any purchase of all or any substantial part of the term assets of the Company or any material portion of its business (it being understood that this clause (i) of this AgreementSection 3.01(b) shall not restrict a Stockholder from Transferring any of its shares of Company Common Stock to the extent expressly permitted by Sections 2.02(a) or 2.02(b), each Shareholder agrees that it will notincluding pursuant to a Qualified Transfer); (ii) take or propose to take any action to seek to affect the control of the management of the Company or any of the businesses, for the purpose of proposing operations or acting upon a proposal regarding acquisition of control policies of the Company, directly or indirectly: including through (aA) initiate, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek to advise or influence any Person with respect proxy rules of the SEC but without regard to the voting exclusion set forth in Section 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any equity securities of the Company or become a “participant” in consents to any “election contest” action from any holder of any Voting Securities, (B) publicly announcing its desire to affect the control of the management or policies of the Company or (C) any filings with respect to the Companyany government or judicial authority; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board; (diii) call or seek to have called any call a special meeting of the shareholders stockholders of the Company or nominate any person as a Director or propose any matter to be voted upon by the stockholders of the Company; (e) form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (fiv) deposit any equity securities of the Company into a voting trust or subject any equity securities of the Company to any agreement or arrangement or agreement with respect to the voting thereof of such securities with any third party , other than any agreement or arrangement set forth in the organizational documents of such Stockholder; (v) seek to amend or waive any provision of Section 3.01 (other than this Agreementa proposal made privately to the Board in a manner that is not intended to result in the Company being required to make any public disclosure or other public announcement related to such proposal); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (gvi) take any action, make any public statement statement, or proposal whatsoever disclose any intention, that to such Stockholder’s knowledge is inconsistent with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Companyforegoing; or (hvii) propose to amend enter into any discussions, negotiations, arrangements or modifyunderstandings with any Person inconsistent with any of the foregoing, or otherwise actadvise, alone assist or encourage any Person in concert connection with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions; provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director of the Company, solely in his or her capacity as such director, from taking any action or making any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholdersforegoing.

Other Restrictions. Except The Stockholder represents, covenants and agrees that, except as contemplated by this Agreement: (i) the Stockholder shall not grant any proxy or power of attorney, or deposit any Shares into a voting trust or enter into a voting agreement or other arrangement, with respect to the voting of Shares (each a “Voting Proxy”) except as provided by this Agreement; and (ii) except for the Voting Agreement, which shall remain in full force and effect in accordance with its terms (as amended from time to time hereafter), the Stockholder has not granted, entered into or otherwise created any Voting Proxy which is currently (or which will hereafter become) effective, and if any Voting Proxy other than the Voting Agreement has been created, such Voting Proxy is hereby revoked. The Stockholder hereby covenants and agrees that during the period commencing on the date hereof and continuing until this Agreement terminates pursuant to Section 4 below, that it shall not take any of the following actions, unless otherwise specifically authorized invited in advance writing by the Board, during the term of this Agreement, each Shareholder agrees that it will not, for the purpose of proposing or acting upon a proposal regarding acquisition of control of the Company, directly or indirectly: : (a) initiateeffect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any assets, indebtedness or businesses of the Company or any of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or affiliates or assets of the Company or the subsidiaries or affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” to vote (as such terms are defined used in Rule 14a-1 under the proxy rules of the Securities and Exchange Act), solicit Commission) or consents to vote any consent or communicate with or seek to advise or influence any Person with respect to the voting of any equity securities of the Company or become a “participant” in any “election contest” with respect to the Company; of its affiliates; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (c) seek election to, nominate a candidate for, or seek the removal of any member of, the Board; (d) call or seek to have called any meeting of the shareholders of the Company; (e) form, join or in any way participate in or assist in the formation of any a “group” within (as defined under the meaning of Section 13(d)(31934 Act) of the Exchange Act with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit (any such arrangement among each Shareholder and any of their respective Affiliates; (fgroup, a “Group”) deposit any equity securities of the Company into a voting trust or subject any equity securities to any arrangement or agreement with respect to the voting thereof (other than this Agreement); provided, that this Section 3.5 shall not prohibit Company or otherwise act in concert with any person in respect of any such arrangement among each Shareholder and any of their respective Affiliates; Securities; (gc) make any public statement or proposal whatsoever with respect to any business combination transaction involving the Company, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or (h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed to seek representation on or having to control or influence the deliberate effect management, Board of circumventing, Directors or policies of the foregoing restrictions; provided that nothing in this Section 3.5 shall prohibit any individual who is serving as a director Company or to obtain representation on the Board of Directors of the Company, solely in his or her capacity as such director, from taking ; (d) take any action which would or making would reasonably be expected to force the Company to make a public announcement regarding any statement which, in such director’s best judgment, is in the best interests of the Company’s shareholderstypes of matters set forth in clause (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.

Other Restrictions. Except as otherwise specifically authorized Each of Xxxx Xxxxx and each Vulcan Stockholder covenants and agrees with the Company that they (x) shall not, (y) shall cause each of their respective Affiliates Controlled By any of them (other than any such Affiliate that is listed on a national securities exchange) not to and (z) shall use their reasonable best efforts to cause each of their respective Affiliates not Controlled By any of them (other than any such Affiliate that is listed on a national securities exchange) not to, in advance by each case, prior to the Board, during earlier of (i) the term fifth anniversary of the date of this Agreement, each Shareholder agrees that it will not, for Agreement and (ii) the purpose of proposing or acting upon a proposal regarding acquisition of control of the CompanyKG Termination Date, directly or indirectly: (a) initiate, alone or in concert with others, unless specifically requested in writing by a Principal Holder or by a resolution of a majority of the Directors or pursuant to a transaction (x) in which the Company has entered into a definitive agreement or (y) the Board has recommended in favor of, take any way of the actions set forth below (or take any action that would require the Company to make an announcement regarding any of the following): effect, seek, offer, engage in, propose (whether publicly or otherwise) or cause or participate in, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) or participate in: any tender or exchange offer, merger, consolidation, share exchange, business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any material portion of its or their business or any purchase of all or any substantial part of the assets of the Company or any of its subsidiaries or any material portion of its or their business; or any “solicitation” of “proxies” to vote (as such terms are defined used in Rule 14a-1 under the Exchange Act), solicit any consent or communicate with or seek proxy rules of the SEC but without regard to advise or influence any Person the exclusion set forth in Section 14a-1(1)(2)(iv) from the definition of “solicitation”) with respect to the voting of any equity securities of the Company or become any of its Affiliates or any action resulting in Xxxx Xxxxx, DWI II, any Affiliate of Xxxx Xxxxx or DWI II or such other Person becoming a “participant” in any “election contest” with respect to the Company; (b) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal (as described such terms are used in Rule 14a-8 under the Exchange Act or otherwiseproxy rules of the SEC) with respect to the Company or any of its subsidiaries; propose any matter for submission to a vote of stockholders of the Company or call or seek to call a meeting of the stockholders of the Company; (c) ; seek election to, nominate seek to place a candidate for, representative on or seek the removal of any member ofDirector, except the Class C Director pursuant to the Charter; provided, however, that nothing in this Section 4.02(c) shall restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; grant any proxy with respect to any Common Stock (other than to a Principal Holder, the Board; (d) call or seek to have called any meeting Chief Executive Officer of the shareholders Company or a bona fide financial institution in connection with a bona fide recourse borrowing); execute any written consent with respect to any Common Stock other than in respect of the election or removal of the Class C Director or at the request of a Principal Holder or the Chief Executive Officer of the Company; (e) ; form, join or in any way participate in or assist in the formation of any “group” within the meaning of Section 13(d)(3) of the Exchange Act a Group with respect to any equity securities of the Company; provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (f) Common Stock or deposit any equity securities of the Company into Common Stock in a voting trust or subject any equity securities Common Stock to any arrangement or agreement with respect to the voting thereof of such Common Stock or other agreement having similar effect (in each case except with the Class B Holders); except pursuant to the Charter as it relates to the Class C Director, take any other than this Agreementaction to seek to affect the control of the management or Board of the Company or any of its Affiliates, including publicly suggesting or announcing its willingness to engage in or have another Person engage in a transaction that could reasonably be expected to result in a transaction of the type described in Section 4.02(a)(i); provided, that this Section 3.5 shall not prohibit any such arrangement among each Shareholder and any of their respective Affiliates; (g) make any public statement or proposal whatsoever with respect to any business combination transaction involving the Companyhowever, including, without limitation, a merger, exchange offer or liquidation of the Company’s assets, or any restructuring, recapitalization or similar transaction with respect to the Company; or (h) propose to amend or modify, or otherwise act, alone or in concert with others, in a manner designed or having the deliberate effect of circumventing, the foregoing restrictions; provided that nothing in this Section 3.5 4.02(g) shall prohibit restrict the manner in which a Vulcan Stockholder may vote its shares of Common Stock; enter into any individual who is serving as a director discussions, negotiations, arrangements or understandings with any Person with respect to any of the Companyforegoing, solely or advise, assist, encourage or seek to persuade others to take any action with respect to any of the foregoing (in his each case except with the Class B Holders); disclose to any Person, or her capacity as otherwise induce, encourage, discuss or facilitate, any intention, plan or arrangement inconsistent with the foregoing or with the restrictions on transfer set forth in Article III or which would result in the Company or any of its Affiliates or any Class B Holder or any Affiliates of any Class B Holder being required to make any such director, from taking disclosure in any filing with a governmental entity or being required to make a public announcement with respect thereto; bring any action or making otherwise act to contest the validity of this Article IV (including this Section 4.02) or seek a release from the restrictions contained in this Article IV; or request the Company or any statement whichof its Affiliates, in such director’s best judgmentdirectors, is in officers, employees, representatives, advisors or agents, or any party hereto, directly or indirectly, to amend or waive this Article IV, the best interests Charter or the Restated By-laws (or similar constituent documents) of the Company’s shareholdersCompany or any of its Affiliates (except for such amendments and waivers relating to the rights, powers or preferences of the Class C Stock or the Class C Director). Each of Xxxx Xxxxx and each Vulcan Stockholder covenants and agrees with the Company that they shall not cause any of their respective Affiliates that are listed on a national securities exchange to take any of the actions prohibited by this Section 4.02 and will not vote any securities of any such Affiliate in favor of the taking of such actions (in each case, as if this Section 4.01 applied to such Affiliates).