Vous êtes sur la page 1sur 6

Peak

ARTICLE V

MANAGEMENT

5.2 The Board.

5.2.1 Subject to the rights granted pursuant to Section 5.3, the purpose of the Board is
to advise and consult with the Manager on the operation, management and business plan of the Company.

- 14-
NY A 820520.12
5.2.2 The number of Directors who will constitute the entire Board shall be seven (7)
with the initial members of the Board being 3 • dUi:,.a lI3iI , Omar Amanat, ?c,
hit a 1 5 L JI andJlL II •. u.

.-7 5.2.3 Directors shall be elected by the holders of Units. An election of Directors will
be determined by a plurality of the votes cast. There shall be no cumulative voting. Each Member agrees
to vote all of his, her or its Units and will, as promptly as practicable, take all other necessary or desirable
actions within its control (whether in such Member's capacity as a Member or otherwise, and including,
without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and
execution ofwritten consents in lieu of meetings), and the Company will, as promptly as practicable, take
all necessary and desirable actions within its control (including, without limitation, calling special
meetings of the Board and the Members), so that each Director on the Board shall be elected when
designated as follows:

(a) so long as the Participant Member has not Transferred 75% or more of the Units
initially issued to it (other than Transfers to Permitted Transferees), the Participant Member shall be
entitled to designate one (1) Director to the Board (the "Participant Director");

(b) at any time prior to a Control Loss Event, the Rizvi Member shall be entitled to
designate two (2) Directors to the Board (each, a "Rizvi Director");

(c) so long as the ML Member has not Transferred 75% or more of the Units initially
issued to it (other than Transfers to Permitted Transferees), the ML Member shall be entitled to designate
one (l) Director to the Board (the "MIcJ!_irei<tQ[");

(d) so long as RT-New Groundswell LLC has not Transferred 75% or more of the
Units initially issued to it (other than Transfers to Permitted Transferees), RT-New Groundswell LLC
shall be entitled to designate one (1) Director to the Board;

(e) so long as Pegasus has not Transferred 75% or more of the Units initially issued
to it (other than Transfers to Permitted Transferees), Pegasus shall be entitled to designate one (1)
Director to the Board: and

(f) so long as Nala has not Transferred 75% or more of the Units initially issued to it
(other than Transfers to Permitted Transferees), Nala shall be entitled to designate one (1) Director to the
Board.

5.2.4 Meeting of the Board may be called at any time by the President, Secretary or
any Director upon at least two (2) Business Days written notice to the other Directors. A Director entitled
to vote at any meeting of the Board may authorize (in writing) another individual, including another
Director. to act in his or her place by proxy.

---':>-=-;:. 5.3 Consent of Directors. Unless consented to by each of a Rizvi Director, the ML Director
and the Participant Director, neither the Company nor the Manager shall:

(a) approve any matter that requires the approval of a Summit Director under the
terms of the Summit LLC Agreement;

(b) approve any matter that requires approval of the Compensation Committee
Representative under the terms of the Summit LLC Agreement;

- 15 -
NYA 820520. J 2
(c) approve any matter that requires the approval of the Company as a holder of
Summit Class A Preferred Units;

(d) except as expressly set forth in Section 6.2 and Section 6.3, exercise any rights
granted to the Company as a holder of Summit Class A Preferred Units;

(e) approve any sale by the Company of its Summit Class A Preferred Units
pursuant to the drag-along provisions set forth in Section 7.5 of the Summit LLC Agreement and

(f) approve any other material transaction with respect to the Company.

5.4 ronsel1lof Members. Unless consented to by each Member, neither the Company nor
the Manager shall:

(a) cause the Company or its subsidiaries to, directly or indirectly, engage in any
business other than perrmtted by Section 2.5;

(b) amend, to the extent adverse to such Member, Section 2.5, Article IV, Micle V,
Article VI, Section 7.2, Article~, Article X or Section 1.1 to the extent related to any of the foregoing
prOVISIOns;

(c) cause or permit the Company to issue Units to any Person;

(d) acquire or agree to acquire any material assets or merge or consolidate with any
Person or engage in any similar transaction; or

(e) cause the Company to dissolve or commence a voluntary bankruptcy case or


institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it or file a petition seeking, or consent to any, reorganization,
liquidation or relief under any applicable federal or state law relating to bankruptcy, insolvency,
reorganization or dissolution, or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a substantial part of its property, or make an
assignment for the benefit of creditors, or admit in writing its inability to pay its debts as they become
due, or take corporate action in furtherance of any such action.

5.5 Lllnila1i()I}sJm_Powcrs of the Members. Except as otherwise expressly stated in this


Agreement, no Member shall:

(a) be entitled or permitted to participate in the control, management or operation of


the business or affairs of the Company (other than exercising any right to vote, consent to or approve any
matter as provided 111 this Agreement or the Act); or

(b) have any authority, right or power to act as agent for or on behalf of the
Company, to do any act that would be binding on the Company, or to incur any expenditures with respect
to the Company or its property.

5.6 Management of Summit.

5.6.1 As set forth in the Summit LLC Agreement, the Company shan be entitled to
designate (i) five (5) Summit Directors to the Summit Board; (ii) three (3) Persons to the Summit
Executive Advisory Committee and (iii) one Summit Director to the Summit Compensation Committee.

- 16 -
NYA 820520.12
Each Member agrees to vote all of its Units and will, as promptly as practicable, take all other necessary
or desirable actions within its control (whether in such Member's capacity as a Member or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a
quorum and execution of written consents in lieu of meetings), and the Company will, as promptly as
practicable, take all necessary and desirable actions within its control (including, without limitation,
calling special meetings of the Board and the Members), so that each Summit Director shall be designated
as follows:

(a) so long as the Participant Member has not Transferred 75% or more of the Units
initially issued to it (other than Transfers to Permitted Transferees), the Participant Member shall be
entitled to designate one Summit Director for election to the Summit Board and the Summit Executive
Advisory Committee;

(b) at any time prior to a Control Loss Event, the Rizvi Member shall be entitled to
designate (x) one Summit Director for election to the Summit Board and (y) an individual to the Summit
Executive Advisory Committee; and

(c) so long as the ML Member has not Transferred 75% or more of the Units initially
issued to it (other than Transfers to Permitted Transferees), the ML Member shall be entitled to designate
one Summit Director for election to the Summit Board and the Summit Executive Advisory Committee;

(d) so long as RT-New Groundswell LLC has not Transferred 75% or more of the
Units initially issued to it (other than Transfers to Permitted Transferees), RT-New Groundswell LLC
shall be entitled to designate one Summit Director for election to the Summit Board;

(e) so long as Nala has not Transferred 75% or more of the Units initially issued to it
(other than Transfers to Permitted Transferees), Nala shall be entitled to designate one Summit Director
for election to the Summit Board; and

(f) any seat on the Summit Board or a committee of the Summit Board for which
there is no designation right pursuant to clauses (a) to (e) above shall be fined by the Members owning a
majority of the Units.

5.6.2 Subject to the terms and provisions of the Summit LLC Agreement, neither a
Member nor the Company shall take any actions to remove a Summit Director without the consent of the
Member or Members who are entitled to appoint such Person as a Summit Director pursuant this
Agreement; provided, however, that any Summit Director may be removed by the Company with the
consent of the Member entitled to appoint such Summit Director under this Agreement and the vacancy
created by any former Summit Director may be filled by the Company appointing a new Summit Director
at the direction of the Member entitled to appoint the former Summit Director under this Agreement.
Subject to the foregoing, in the event a vacancy is created on the Summit Board by reason of the death,
disability, resignation or removal (with cause or without cause) of any Summit Director, each of the
Members and the Company hereby agrees that such vacancy shall be filled in accordance with the
procedures set forth in this Section 5.6.

5.6.3 Each Member entitled to designate a Summit Director agrees that such Member
shall designate the same Person to the Summit Board as designated by such Member to the Board.

5.6.4 The Members owning a majority of the Units shall designate a Summit Director
as the sole authorized representative of the Summit Directors for purposes of exercising the approval
rights granted to a Summit Director pursuant to the Summit LLC Agreement (the "Summit Director

- 17 -
NYA 820520.l2
Rcmrcsentativc"} and the Company shall notify Summit of the identity of the Summit Director
Representative. The Summit Director Representative shall, promptly upon receipt of notice of a proposed
matter or matters requiring the approval of a Summit Director pursuant to the terms and provisions of the
Summit LLC Agreement, notify each other Summit Director in writing of such proposed matter and
provide each Summit Director with a ballot, which shall set forth the proposed matter(s), solicit each
Summit Director's vote for or against such proposed matter(s) and provide instructions with respect to the
return of such ballot. In the event that a Summit Director (or his or her proxy) fails to return a ballot as
instructed such Summit Director (or his or her proxy) shall be deemed to vote against the proposed
matter{s) set forth in the ballot.

5.6.5 The Members owning a majority of the Units shall designate a Summit Director
as the sole authorized representative of the Summit Directors to serve on the Summit Compensation
Committee (the "Compensation Committee Representative") and the Company shall notify Summit of the
identity of the Compensation Committee Representative. The Compensation Committee Representative
shall, promptly upon receipt of notice of a proposed matter or matters requiring the approval of the
Compensation Conunittee Representative pursuant to the terms and provisions of the Summit LLC
Agreement, notify each other Summit Director in writing of such proposed matter and provide each
Summit Director with a ballot, which shall set forth the proposed matter(s), solicit each Summit
Director's vote for or against such proposed matter(s) and provide instructions with respect to the return
of such ballot. In the event that a Summit Director (or his or her proxy) fails to return a ballot as
instructed such Summit Director (or his or her proxy) shall be deemed to vote against the proposed
matter(s) set forth in the ballot.

---'l""';;;;" 5.6.6 Each Member entitled to designate a Summit Director agrees to cause such
Summit Director to vote together with the remaining Summit Directors at any meeting of the Summit
Board or the Summit Executive Advisory Committee, as applicable, and to act by written consent
together with the remaining Summit Directons), in each case. to the extent applicable. in accordance with
the decision of the Directors pursuant to the consent rights granted to such Directors under Section 5.3. In
the event a Summit Director does not vote in accordance with the decision of the Directors pursuant to the
consent rights granted to such Directors under Section 5.3, the Member entitled to designate such Summit
Director shall forfeit any rights granted to such Member pursuant to Section 5.2.3 and Section 5.6.1.