Common use of Board of Managers Clause in Contracts

Board of Managers. The management of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by ▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Majority Member Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or resignation, or (B) the appointment of such Manager’s successor pursuant to the provisions of Section 6.01. Any Manager may resign at any time by ▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President In the event of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (c) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects ▇may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (d) Meetings of the Board of Managers may be held at any time and at any location specified in the notice thereof in such place within or without the State of Delaware. ▇. ▇▇▇▇▇▇, Vice President A majority of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (e) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (f) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (g) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”h) which shall initially engage ▇▇▇▇▇▇▇▇▇ Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (i) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (j) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation.

Board of Managers. The management business of the Company is vested in a will be managed by the Board of Managers, and the Persons constituting the Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively will be the “Managers”managers” of the Company for all purposes under the Act. (a) The Board of Managers shall have full and exclusive authority, power and discretion to manage and control the business, affairs and properties of the Company, two to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of Company business, unless otherwise provided in the Act, the Certificate or this Agreement. Except as expressly provided herein, the vote of a Majority of the Board shall be required to approve or effect any action or transaction on behalf of the Company. (2b) selected The Board of Managers will initially consist of seven (7) members (such members, along with any other Persons appointed from time to time, the “Board Members”). The number of Board Members may be increased from time to time by resolution of the Board of Managers. The initial Board Members shall be (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇, (iii) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, (iv) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, (v) ▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ selects , (vi) ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and (vii) Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on . (c) At all times at least a majority of the Board Members shall be “Independent Directors” as defined under NASDAQ Rule 5605(a)(2), as amended. (d) Any Board Member may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of Managers and Cyprus selects its receipt by the remaining Board Members. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. (e) Any Board Member, other than ▇. ▇. ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇. Waksal for so long as he continues to beneficially own or control at least ten percent (10%) of the outstanding equity of the Company, Vice President Operations Undergroundmay be removed by at any time by a majority vote of the other Board Members. In the event any Board Member is convicted of a felony involving moral turpitude, Peabody Midwest Group as its representatives fraud, theft or dishonesty, if such Board Member is not removed by the Board of Managers within thirty (30) days, such Board Member may be removed by a Special Approval Vote. (f) In the event of a vacancy on the Board of Managers due to the resignation or removal of any Board Member, such vacancy may only be filled by a majority vote of the Board of Managers. Except as provided herein, Any Board Member position to be filled by reason of an increase in the decisions number of Board Members may be filled by the Person selected by the vote of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Managers. (g) Each Board Member which has appointed such Manager, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize reasonably determines may be necessary or appropriate to manage and operate the Managing Company. (h) Each Board Member and/or all or less than all of has the Managers power and authority to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managersdeliver, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (, all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager acquisition, mortgage or disposition of the Company’s day-to-day operations property; assignments; bills of sale; leases; partnership agreements; and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member instruments or documents; provided that if the Board of Managers consists of more than one Person, any such documents have been authorized and approved by a Majority of the Board. (i) The Board of Managers may delegate all or part of its authority to committees or the Board or officers of the Company whom the Board of Managers may appoint from time to time, including, without limitation, officers possessing the titles of President, Vice President, Treasurer and Secretary. (j) All Board Members shall also have owe the authority, in its sole discretion, same fiduciary duties to assume the position Company and each of manager the Members as a director of a corporation organized under the Management Agreement, both elections being entirely independent from the otherState of Delaware owes to such corporation and its stockholders.

Board of Managers. (a) The management Company and the Members shall take such actions as may be required to ensure that the number of managers constituting the Board is at all times five (5). A Manager (and/or any successor or replacement) may, but shall not be required to, be a Member of the Company is vested Company. The Managers will be appointed or elected in a Board of Managers consisting initially of four the following manner: (4i) individuals acting as AGP Partners, LLC shall have the right to appoint three (3) Managers (individually a “Manager” and collectively the “Common Managers”) of the Companyand to remove and replace such Common Managers from time to time, two (2) selected by ▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and ▇who shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as its representatives on the Board of Managers and Cyprus selects ▇. ▇. Each Common Manager then in office shall be entitled to cast one (1) vote, provided, however, that ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group for so long as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such he is a Manager, but not by any other Member. In or, in the event that ▇▇▇▇▇ ▇▇▇▇▇▇ or Cyprus (or such partyis no longer a Manager, AGP Partners, LLC’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member designee shall be removed at entitled to cast a tie-breaking Board vote in the event of a deadlock. (ii) The holders of a majority of the Preferred Units, shall have the right to appoint two (2) Managers (the “Preferred Managers”), and to remove and replace such Preferred Managers from time and replaced to time, by the affirmative vote or consent of all a majority of the Members. Except as set forth in Section 3.2 and Section 7.12(e)Preferred Units, the Board of which Preferred Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of initially be ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Cyprus, and each . Each Preferred Manager then in office shall have be entitled to cast one (1) vote. No Manager shall be required to devote all of Notwithstanding the foregoing, at such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as that AGP Partners, LLC is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize no longer the Managing Member and/or all or less than Member, all of the Managers shall be appointed by the Members voting as a single class, and such Members shall have the right to execute remove and replace such Managers from time to time. (b) The Board shall maintain a schedule of all Managers with their respective mailing addresses, and shall update the schedule upon the removal or replacement of any Manager in accordance with this Section 8.02 or Section 8.03. (c) The following is a list of material decisions (“Material Decisions”) that shall require an affirmative vote of the Requisite Managers: (i) a merger, consolidation, conversion or other similar transaction involving the Company or any of the Company Subsidiaries; (ii) the sale, lease or conveyance of all or substantially all of the assets of the Company and all documents necessary the Company Subsidiaries on a consolidated basis; (iii) any material acquisition by the Company or convenient any Company Subsidiary, or any agreement to carry out those actions approved engage in such material acquisition or the acquisition by the Company or any Company Subsidiary of an ownership interest in any Person; (iv) the creation of Subsidiaries, or entering into a joint venture, partnership or limited liability company agreement by the Company or any of its Subsidiaries; (v) any agreement or series of related agreements of the Company or any of its Subsidiaries for compensation and/or benefits of any Manager, Managing Member, Officer, or other executive of the Company or any other agreement for compensation and/or benefits with a total annual cost to the Company of at least $100,000; (vi) any action that results in a liquidation or dissolution of the Company or any wholly-owned Company Subsidiary; (vii) any transaction between the Company or a Subsidiary and any Affiliate of the Company or its Subsidiary, excluding transactions between the Company and wholly-owned Company Subsidiaries, provided, however, that in the event of such transaction whereby a conflict of interest exists with respect to any Requisite Managers of the Company, then such transaction shall require the consent of a majority of the Managersoutstanding Common Units, If the Board of Managers approves executing a document or agreement without specifically authorizing signersReal Estate Preferred Units, then the Managing Member Series Seed Preferred Units and each Series Seed+ Preferred Units of the Managers, acting individually, may execute such document Company voting as separate classes; (viii) issuance of additional Units or agreement on behalf the creation of new classes of Units by the Company or a Subsidiary; (ix) increasing the size of the Company. The Board; (x) confessing any judgment against the Company shall enter into or a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ Subsidiary or consenting to be the manager a receiver of the Company’s day-to-day operations and the development assets of the ProjectCompany or a Subsidiary; or (xi) incur any indebtedness, pledge, or grant liens on any assets, or guarantee, assume, endorse, or otherwise become responsible for the obligations of any other Person in accordance with the terms and conditions contained excess of $100,000 in a single transaction or series of related transactions, or in excess of $200,000 in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed aggregate at any time outstanding by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent Company or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the othera Subsidiary.

Board of Managers. The management Company will be managed by the Board. The Board will consist of six (6) Managers; three Managers to be appointed by IBC and three Managers to be appointed by Empyrean. The Managers will serve at the request of IBC and Empyrean and IBC and Empyrean will have the right to replace each of the Company is vested in a Board of three Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively they were entitled to appoint without the “Managers”) approval of the CompanyBoard; provided, two (2) selected by however, that any successor to the original appointees shall be either the Chairman of the Board, Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of Empyrean or IBC, as the case may be. Initially, the Board will consist of Lawrence D. Bain, Richard C. A▇▇▇▇▇▇, ▇▇▇▇▇▇▇ S. ▇▇▇▇▇, ▇▇▇▇ ▇▇me▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ T▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially▇, ▇.▇. ▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and ▇d A▇▇▇▇▇ ▇▇▇▇▇▇, President ▇. ▇ quorum of the ▇▇▇▇▇▇▇▇▇ as its representatives on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇ ▇▇e composed of all six Managers. (1) The Board will have full, Vice President Operations Undergroundexclusive, Peabody Midwest Group and complete discretion, power, and authority, subject in all cases to the other provisions of this Agreement and the requirements of applicable law, to manage, control, administer, and operate the business and affairs of the Company for the purposes herein stated, and to make all decisions affecting such business and affairs, whether or not in the ordinary course of such business and affairs, and to perform any and all other acts or activities customary or incident to the management of the Company's business, including, without limitation, the making of any distributions to the Members. (2) The Board may meet at the principal offices of the Company or at any other place as its representatives on may be agreed upon from time to time by the Board at any time as may be determined by the Board or upon the request of any Manager or the President upon ten (10) days' notice to all the Managers. Except as provided herein, Meetings may be held by telephone. The Board will cause written minutes to be prepared of all actions taken by the decisions Board and will cause a copy thereof to be delivered to each Manager within fifteen (15) days after the meeting. (3) No action may be taken at a meeting of the Board unless a majority of the Managers shall be binding upon the Company and may be relied upon by other persons or entities. A is present at such meeting. (4) Each Manager may at is entitled to cast one vote with respect to any time be changed or removed and replaced decision made by the Member Board, except with respect to a determination to seek indemnification under Section 5(h), in which has appointed such Manager, but event a Manager seeking indemnification may not by any other Membervote with respect to his or her indemnification. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases Any action to be a Member, the Managers appointed by such Member shall be removed at such time and replaced taken by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) a majority of the four Managers. Approval or action by the Board constitutes approval or action by the Company and is binding on the Members. (45) Managers, including The Board will first attempt to settle and vote on each and every matter presented to it respecting the affirmative vote management of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much in good faith. In the event the business of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage suffering or is threatened with irreparable injury because the Board is so divided respecting the management of the affairs of the Company that the required vote for action by the Board cannot be obtained within thirty (30) days from the date such vote is first presented to the best advantage of Board, the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents Members and agreements that do not require consent of the Board of Managers, For documents hereby agree to submit and agreements that require have such consent, the Board of Managers may, divided vote decided by final and binding arbitration conducted in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved a mutually agreed location by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager of the Company’s day-to-day operations and the development of the Projectone neutral arbitrator, in accordance with the terms then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). A judgment may be entered in any court having competent jurisdiction. The arbitrator will not have the power to award any consequential or punitive damages. The arbitrator will not have the power to order pre-hearing discovery of documents or the taking of depositions, but may compel attendance of witnesses and conditions contained in the Management Agreement production of documents at the hearing. This Section will be governed and this Agreement. Pursuant enforced under the Federal Arbitration Act, 9 U.S.C. Sections 1 to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed 16. (6) Any action to be taken by the Board of may be taken without a meeting if consents in writing setting forth the action so taken are signed by all Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. (a) The management board of managers of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by ▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the "Board of Managers") shall, subject to Section 8.02 (c), consist of three natural persons (the "Managers"), each of whom shall be entitled to vote, one of whom shall be designated by STV in its sole discretion (subject to the last sentence of this Section 8.02(a)) as its representative (the "STV Manager"), one of whom shall be designated by NDI in its sole discretion as its representative (the "NDI Manager"), and one of whom shall be designated by agreement of NDI and STV and be independent of both NDI and STV (the "NDI/STV Manager"). Except as provided herein, the decisions Each member of the Board of Managers shall be binding upon a natural person. The initial Managers shall be those natural persons listed on Appendix C. No Manager may give a proxy to a third party. Notwithstanding anything to the Company and contrary, no STV Manager may be relied (or without NDI's consent, have been in the prior three years) an officer, director, employee, consultant or otherwise any Person which is, or any Affiliate or associate of, any NDI Competitor. (b) In the event of a Transfer by a Member pursuant to Article X of all, but not less than all, of its Membership Interests to one person, effective at the time of such Transfer, (i) the Manager, if any, designated solely by the transferor of such Membership Interests shall automatically be removed from the Board of Managers, (ii) the transferee of such Membership Interests shall be permitted to designate one Manager to the Board of Managers as its representative in place of the removed Manager (subject, in the case of the Transfer of the Membership Interests originally held by STV, to the restrictions in the proviso clause of Section 8.02(d)), and (iii) the transferee of such Membership Interests shall succeed to the transferor's rights with respect to the NDI/STV Manager. Such transferee shall promptly notify the other Members as to the name of the person who such transferee has designated as its representative on the Board of Managers. (c) In the event of a Transfer by any Member pursuant to Article X of a portion (but not all) of its Membership Interests constituting at least 30% of the outstanding Percentage Interests, effective at the time of such Transfer, automatically the number of Managers shall increase to five natural persons, of which two shall be STV Managers, two shall be NDI Managers and one shall be the NDI/STV Manager (who shall be selected by NDI and STV unless either of them assigns pursuant to this Agreement its right to participate in such appointment; it being understood that the NDI/STV Manager need be appointed only by two Members, such Members being (i) NDI or its transferee and (ii) STV or its transferee). In no event shall the number of Managers exceed five persons. In the case of a Transfer pursuant to the first sentence of this Section 8.02(c), if the transferor is NDI, then NDI shall have the right to designate one of the two NDI Managers and the transferee shall have the right to designate the other NDI Manager and STV, together with any STV transferee as permitted pursuant to this Agreement shall have the right to designate the two STV Managers. If the Transferor is STV, then STV shall have the right to designate one of the two STV Managers and its transferee shall have the right to designate the other STV Manager, and NDI, together with any NDI transferee as permitted pursuant to this Agreement shall have the right to designate the two NDI Managers. Notwithstanding anything to the contrary, in the event of any Transfer by a Member of less than its entire Membership Interests which does not meet the requirements of the first sentence of this Section 8.02(c), then the transferor shall continue to hold and exercise all the rights of the transferor under this Article 8 (subject to the then-existing rights allocated to prior transferees) and in no event shall the transferor enter into any agreement or understanding with the transferee regarding the designation of any Manager or how it or any Manager will vote with respect to any matter and any such agreement or understanding shall be null and void, ab initio. (d) In the event of a vacancy in the NDI/STV Manager position and STV and NDI cannot agree as to the person to serve as the NDI/STV Manager within 60 days of such vacancy, for the two-year period following such disagreement, the NDI/STV Manager shall be selected as follows: (i) for the first year, NDI shall select two candidates and STV shall designate the NDI/STV Manager from such candidates to serve a one-year term; (ii) for the second year, STV shall select two candidates and NDI shall designate the NDI/STV Manager from such candidates to serve a one-year term; and (iii) upon by other persons completion of such second year, if STV and NDI do not mutually agree as to the person to serve as the NDI/STV Manager, the NDI/STV Manager for the subsequent two-year period shall be selected as provided in clauses (i) and (ii); provided however, in no event may any prospective NDI/STV Manager selected as a candidate pursuant to this Section 8.02(d) be an officer, director, or entitiesemployee of or otherwise associated with any NDI Competitor. A The rights under this Section 8.02(d) cannot be Transferred except as part of a Transfer pursuant to Section 8.02(b) or the first sentence of Section 8.02(c). (e) Each Manager may be removed and replaced, with or without cause, at any time be changed or removed and replaced by the Member which has appointed such designating him or her or, in the case of the NDI/STV Manager, but by mutual agreement of NDI and STV, but, except as provided in Section 8.02(b), may not be removed or replaced by any other Membermeans. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such A Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), who removes its representative from the Board of Managers shall act solely upon promptly notify the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts other Members as to the affairs name of the Company but shall devote so much of such its replacement Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.

Board of Managers. (a) The management management, control and operation of and the determination of policy with respect to the Company and its affairs shall be vested exclusively in the Board of Managers (acting directly or through its duly appointed agents), which is hereby authorized and empowered on behalf and in the name of the Company, subject to the terms of this Agreement, to carry out any and all of the purposes of the Company is vested and to perform all acts and enter into and perform all contracts and other undertakings that it may in a its sole discretion deem necessary, advisable, convenient or incidental thereto. (b) The Board of Managers consisting initially shall have a maximum of four five (45) individuals acting as Managers managers (individually each, a “Manager” and collectively collectively, the “Managers”). The Company’s initial Board of Managers shall consist of five (5) Managers, three (3) of which shall be appointed by HMNY (the “HMNY Managers”) for so long as HMNY has not resigned or withdrawn as a Member (and thereafter by a Majority Interest) and two (2) of which shall be appointed by EFO (the “EFO Managers”) for so long as EFO has not resigned or withdrawn as a Member (and thereafter by a Majority Interest). At least two (2) of the HMNY Managers shall be independent within the meaning of the listing rules of the Nasdaq Stock Market LLC (the “Helios Independent Managers”). The Managers need not be Members, individuals, or residents of the State of Delaware, and each Manager shall hold office until death, Disability, resignation or withdrawal pursuant to Section 3.1(c), or removal or replacement in accordance with Section 3.1(d) and 3.1(e). The initial Chairman of the Board of Managers (“Chairman”) and the initial Managers of the Company designated by HMNY and EFO are as set forth on Schedule B attached hereto and incorporated herein by this reference. (c) A Manager may voluntarily resign or withdraw from his, her or its position as a Manager of the Company by giving written notice to the Members, to take effect on the date that is thirty (30) days from the Members’ receipt of that written notice or at such later time as specified in the written notice. Unless otherwise specified in the notice, the acceptance of the resignation or withdrawal shall not be necessary to make it effective. The resignation or withdrawal of a Manager shall not affect any rights such Manager or any of its Affiliates may have under any written agreement with the Company, and the resignation or withdrawal of a Manager who is also a Member shall not affect such Manager’s rights as a Member or constitute a withdrawal of such Manager as a Member. (d) A Manager may be removed or replaced at any time, with or without cause, by the Member or Members that appointed such Manager, upon written notice to the Company. (e) Except as otherwise set forth herein, in the event that a Manager shall have committed Prohibited Conduct or be adjudged mentally incompetent by a court of competent jurisdiction, such Manager will be removed upon the written request of a majority of the other Managers or a Majority Interest. (f) In the event any Manager dies, suffers a Disability, resigns or withdraws pursuant to Section 3.1(c) or is removed or replaced in accordance with Section 3.1(d) and 3.1(e), the vacancy shall be promptly filled by the Member or Members that appointed such removed Manager. In addition, in the event a Member ceases to have the right to elect any Managers pursuant to Section 3.1(b), each designee of such Member on the Board of Managers shall be replaced by a new Manager who shall be elected in accordance with the provisions of Section 3.1(b). The replacement Manager shall be admitted to the Company as a Manager on such terms as the replacement Manager and a majority of the Managers may jointly determine; provided however, that no such terms shall conflict with the provisions of this Agreement affecting the rights of the former Manager. Effective immediately upon the admission of such new Person as a Manager of the Company, the existing Manager being removed or resigning or withdrawing from the position of Manager shall cease to be a Manager of the Company. The Company shall not be dissolved by the removal and replacement of a Manager in accordance with the foregoing provisions of this Agreement. (g) The Board of Managers may designate one or more committees, each committee to consist of one or more of the Managers of the Company. The Board of Managers may designate one or more Managers as alternate members of any committee, who may replace any absent or disqualified committee member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Managers to act at the meeting in place of any such absent or disqualified committee member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board of Managers or this Agreement, shall have and may exercise all the powers and authority of the Board of Managers in the management of the business and affairs of the Company. (h) Unless the Board of Managers otherwise provides, each committee designated by the Board of Managers may make, alter and repeal rules for the conduct of its business, provided that it cannot expand its powers beyond those described in subparagraph (g) above. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Managers conducts its business pursuant to this Agreement. (i) The Board of Managers shall appoint a Compensation Committee comprised of two (2) selected Managers, one (1) of which shall be one of the Helios Independent Managers and one (1) of which shall be one of the EFO Managers designated by ▇▇▇▇▇▇▇▇▇ EFO (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign“Compensation Committee”). Initially, ▇▇▇▇▇▇▇▇▇ selects ▇The initial members of the Compensation Committee shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇ (being one of the initial Helios Independent Managers), Vice President of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ (as its representatives hereby designated by EFO). HMNY may change the Helios Independent Manager designated by HMNY to serve on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on Compensation Committee at any time upon written notice to the Board of Managers. Except as provided herein, EFO may change its designee to serve on the decisions Compensation Committee at any time upon written notice to the Board of Managers. Any action of the Compensation Committee shall require the affirmative vote or written consent of both members of the Compensation Committee. The charter of the Compensation Committee of the Board of Managers shall be binding upon substantially equivalent to the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all charter of the Members. Except as set forth in Section 3.2 and Section 7.12(ecompensation committee of the board of directors of HMNY, mutatis mutandis (i.e. making any necessary alterations without affecting the substance thereof), the Board final form of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required subject to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time approval and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed adoption by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherBoard.

Board of Managers. (a) The management of the Company is vested in shall be managed by a Board of Managers consisting initially of seven (7) individuals. The members of the Board of Managers are sometimes referred to herein as a “Manager” or “Board Representative”. (b) The Member owning a majority of the Units shall appoint four (4) individuals acting as to the Board of Managers (individually and the Member owning a “Manager” and collectively the “Managers”) minority of the CompanyUnits shall appoint three (3) individuals to the Board of Managers. Each Manager shall, two to the maximum extent permitted by Law, be entitled to represent solely the interests of the Member that shall have appointed such Manager. Each Manager appointed by a Member shall be an employee of, or otherwise affiliated with, such Member or its Affiliates and shall otherwise be familiar with the Business. (2c) selected by As of the date of this Agreement, the Board of Managers consists of the following seven (7) Managers: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President of Operations of ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇, appointed by Magnetation, and ▇▇▇▇ as its representatives on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇▇, Vice President of Cyprus and ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company Newport and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Member▇. ▇▇▇▇, the Managers appointed by such AKS. (d) Each Board Representative is to serve until the earlier of his or her death, resignation or removal. Each Member shall be removed have the exclusive right to (1) remove (with or without cause and with or without prior notice) any of its appointed Managers at such any time and replaced appoint their respective successors, and (2) appoint an individual to fill any vacancies created by the affirmative vote of all reason of the Membersremoval, resignation, or death of such Member’s appointed Manager. Except as set forth in Section 3.2 Appointments and Section 7.12(e), the Board removals of Managers made pursuant to this Section 6.1(d) shall act solely upon the majority consent of all be evidenced by an instrument in writing signed by a duly authorized representative of the Managersappointing Member. (e) No Manager shall be entitled to any form of remuneration or reimbursement of expenses from the Company, which requires an affirmative vote of at least three and no former Manager nor the family members or dependents thereof shall have any right to receive benefits from the Company, in each case in such Person’s capacity as Manager or former Manager. Nothing contained in this Agreement shall be construed to preclude any Manager from serving the Company in any other capacity and receiving compensation for such service. (3f) In the event that the Member holding a majority of the four outstanding Units is diluted (4the “Diluted Member”) Managerspursuant to the provisions of this Agreement such that it no longer holds a majority of the Units, including then, effective on the affirmative vote first Business Day of at least the next succeeding calendar quarter, one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ such Diluted Member shall resign and Cyprus, and each Manager the other Member shall have one appoint an individual to fill such vacancy. The Diluted Member shall thereafter be entitled to appoint three (13) vote. No Manager individuals to the Board while the other Member shall be required entitled to devote all of such Manager’s time or business efforts appoint four (4) individuals to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the otherBoard.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually subject to Section 6.01(d) and Section 6.01(g)) (each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Non-PubCo Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) From time to time following the date hereof, the Corporation, without the consent of any other Member, shall be entitled to increase or decrease (i) the size of the Board and/or (ii) the number of PubCo Managers and Non-PubCo Managers on such Board; provided, that the consent of the holders of a majority of the Series A Preferred Stock shall be required before the Corporation increases or decreases the number of PubCo Managers and/or Non-PubCo Managers in a manner that would result in the PubCo Managers ceasing to represent a majority of the Board. Following any such adjustment, the Members shall be obligated to remove any Managers and to elect (i) the applicable number of the PubCo Managers as designated by ▇▇▇▇▇▇▇▇▇ the Corporation and/or the holders of a majority of the Series A Preferred Units and (ii) the applicable number of the Non-PubCo Managers as designated by the holders of a majority of the Units then outstanding held by Members other than the Corporation and its wholly-owned Subsidiaries in accordance with such adjusted Board membership requirements. (c) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or its resignation, or (B) the appointment of such Manager’s successor or permitted assign) pursuant to the provisions of Section 6.01. Any Manager may resign at any time by giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President In the event of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (d) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects ▇may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (e) Meetings of the Board of Managers may be held at any time and at any location specified in the notice thereof in such place within or without the State of Delaware. ▇. ▇▇▇▇▇▇, Vice President A majority of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (f) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (g) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (h) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”i) which shall initially engage ▇▇▇▇▇▇▇▇▇ Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (j) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (k) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation. (l) The holders of a majority of the Series A Preferred Units may designate one person to receive (i) notice of, and attend and participate in, all meetings of the Board of Managers; (ii) all information sent to the Managers in their capacity as such; (iii) copies of all proposed written consents in lieu of meetings of the Board of Managers by no later than simultaneously with the delivery thereof to the Board in accordance with Section 6.01(e); and (iv) copies of all fully executed written consents in lieu of meetings of the Board of Managers within ten (10) days after execution.

Board of Managers. (a) The management Company shall be managed by a board of managers (the Company is vested in a “Board of Managers consisting initially Managers” or “Board”) comprised of four five (45) individuals acting as Managers (individually subject to Section 6.01(d) and Section 6.01(g)) (each a “Manager” and collectively together the “Managers”). The Managers shall be elected as follows: (i) the Members holding Common Units representing more than fifty percent (50%) of the Company, total Common Units entitled to vote (the “Majority Members”) shall have the right to designate two (2) selected Managers (the “Non-PubCo Managers”); and (ii) the Corporation shall have the right to designate three (3) Managers (the “PubCo Managers”). (b) From time to time following the date hereof, the Corporation, without the consent of any other Member, shall be entitled to increase or decrease (i) the size of the Board and/or (ii) the number of PubCo Managers and Non-PubCo Managers on such Board; provided, that the consent of the holders of a majority of the Series A Preferred Stock shall be required before the Corporation increases or decreases the number of PubCo Managers and/or Non-PubCo Managers in a manner that would result in the PubCo Managers ceasing to represent a majority of the Board. Following any such adjustment, the Members shall be obligated to remove any Managers and to elect (i) the applicable number of the PubCo Managers as designated by ▇▇▇▇▇▇▇▇▇ the Corporation and/or the holders of a majority of the Series A Preferred Units and (ii) the applicable number of the Non-PubCo Managers as designated by the holders of a majority of the Units then outstanding held by Members other than the Corporation and its wholly- owned Subsidiaries in accordance with such adjusted Board membership requirements. (c) Each Manager shall serve in such capacity until the first to occur of (A) such Manager’s death, disability, removal or its resignation, or (B) the appointment of such Manager’s successor or permitted assign) pursuant to the provisions of Section 6.01. Any Manager may resign at any time by giving written notice to the Board. Unless otherwise specified in the notice, the resignation shall take effect upon the giving of such notice to the Board, and the other two (2) selected by Cyprus (or its successor or permitted assign)acceptance of the resignation shall not be necessary to make it effective. Initially, ▇▇▇▇▇▇▇▇▇ selects ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President In the event of Operations of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of ▇▇▇▇▇▇▇▇▇ as its representatives on any vacancy in the Board of Managers or upon the death, disability, removal or resignation of any Manager, a new or successor Manager shall be appointed by the Corporation or the Majority Members, as the case may be, who had designated the departing Member. (d) Notwithstanding anything to the contrary contained in Section 6.01, each Manager shall serve at the pleasure of the Member(s) or Person(s) who appointed such Manager and Cyprus selects ▇may be removed or replaced at any time only upon written notice from such Member(s) or Person(s) having the right to appoint such Manager position pursuant to Section 6.01. (e) Meetings of the Board of Managers may be held at any time and at any location specified in the notice thereof in such place within or without the State of Delaware. ▇. ▇▇▇▇▇▇, Vice President A majority of Cyprus and ▇▇▇ ▇▇▇▇▇▇, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Managers may call a meeting of the Board of Managers. Except as provided hereinReasonable and sufficient notice of each meeting shall be given to each Manager, and in any event not less than twenty-four (24) hours prior to any such meeting (unless otherwise waived by each of the decisions Managers). (f) In any matter presented to the Board of Managers for approval or consent, a majority of Managers shall constitute a quorum. At any meeting of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Managera quorum is present, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ or Cyprus (or such party’s successor or permitted assign) ceases to be a Memberunless otherwise specified in this Agreement, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority or consent of all of the Managersa majority (i.e., which requires an affirmative vote of at least three (3greater than 50%) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ and Cyprus, and each Manager shall have one (1) vote. No Manager such quorum shall be required to devote all of such Manager’s time the approval or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, . No individual Manager may act for the Board of Managers or on behalf of the Company absent a specific and duly adopted delegation of authority from the Board of Managers. (g) At any time any particular Member has the right to appoint more than one (1) Manager, such Member may, upon notice to the Company and the other Members, vest in connection with its approval thereofa single Manager the rights and powers of all Manager seats that such Member is entitled to appoint (such that, authorize by way of example, at any time the Managing Corporation is entitled to appoint three (3) Managers, the Corporation may vest in a single Manager appointed by the Corporation three (3) Manager votes and the other rights and powers that would be held by the Corporation’s three (3) Managers, severally). The provisions of this Agreement shall be equitably interpreted to give effect to the vesting in a single Manager of the status, rights and powers of multiple Manager seats that a Member and/or all is entitled to appoint, including for purposes of the determination of whether or less than not a quorum is present. (h) The Board of Managers may act from time to time by written consent in lieu of a meeting if all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement written consent. (the “Management Agreement”i) which shall initially engage ▇▇▇▇▇▇▇▇▇ Any action required to be the manager taken at a meeting of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, or any action that may be taken at a meeting of the Board of Managers, may be taken at a meeting held by means of conference telephone or other communications equipment by means of which time Cyprus all persons participating in the meeting can hear each other. The Company shall have make reasonable accommodation for such participation upon the authorityprior request of any Manager. Participation in such a meeting shall constitute presence in person at such meeting. (j) No Manager shall be entitled to compensation by the Company for any services as a Manager, in provided that the Company may reimburse each Manager for its sole discretionreasonable, to assume the position documented out-of-pocket expenses for attending meetings of Managing Member without consent or action from any other Member or the Board of Managers and shall also have other similar expenses incurred in connection with such Manager’s service on the authorityBoard of Managers. (k) In connection with the performance of their duties as members of the Board, in its sole discretion, the Managers acknowledge that they will owe to assume the position Members the same fiduciary duties as they would owe to the stockholders of manager a Delaware corporation under the Management AgreementGeneral Corporation Law of the State of Delaware, both elections being entirely independent as amended from time to time (or any corresponding provisions of succeeding law) if they were members of the otherboard of directors of such a corporation and the Members were stockholders of such corporation. (l) The holders of a majority of the Series A Preferred Units may designate one person to receive (i) notice of, and attend and participate in, all meetings of the Board of Managers; (ii) all information sent to the Managers in their capacity as such; (iii) copies of all proposed written consents in lieu of meetings of the Board of Managers by no later than simultaneously with the delivery thereof to the Board in accordance with Section 6.01(e); and (iv) copies of all fully executed written consents in lieu of meetings of the Board of Managers within ten (10) days after execution.

Board of Managers. The management of the Company is vested in a Board of Managers consisting initially of four (4) individuals acting as Managers (individually a “Manager” and collectively the “Managers”) of the Company, two (2) selected by ▇▇▇▇▇▇▇▇▇ Armstrong (or its successor or permitted assign) and the other two (2) selected by Cyprus (or its successor or permitted assign). Initially, ▇▇▇▇▇▇▇▇▇ Armstrong selects ▇▇▇▇▇▇▇ ▇▇▇▇▇Kenneth Allen, Vice President of Operations of ▇▇▇▇▇▇▇▇▇ Armstrong and ▇▇▇▇▇▇ ▇▇▇▇▇▇Martin Wilson, President of ▇▇▇▇▇▇▇▇▇ Armstrong as its representatives on the Board of Managers and Cyprus selects ▇. ▇. ▇▇▇▇▇▇T. L. Bethel, Vice President of Cyprus and ▇▇▇ ▇▇▇▇▇▇Tom Benner, Vice President Operations Underground, Peabody Midwest Group as its representatives on the Board of Managers. Except as provided herein, the decisions of the Board of Managers shall be binding upon the Company and may be relied upon by other persons or entities. A Manager may at any time be changed or removed and replaced by the Member which has appointed such Manager, but not by any other Member. In the event that ▇▇▇▇▇▇▇▇▇ Armstrong or Cyprus (or such party’s successor or permitted assign) ceases to be a Member, the Managers appointed by such Member shall be removed at such time and replaced by the affirmative vote of all of the Members. Except as set forth in Section 3.2 and Section 7.12(e), the Board of Managers shall act solely upon the majority consent of all of the Managers, which requires an affirmative vote of at least three (3) of the four (4) Managers, including the affirmative vote of at least one (1) Manager appointed by each of ▇▇▇▇▇▇▇▇▇ Armstrong and Cyprus, and each Manager shall have one (1) vote. No Manager shall be required to devote all of such Manager’s time or business efforts to the affairs of the Company but shall devote so much of such Manager’s time and attention to the Company as is reasonably necessary and advisable to manage the affairs of the Company to the best advantage of the Company. The Managing Member is hereby authorized to execute, in such capacity, all documents and agreements that do not require consent of the Board of Managers, For documents and agreements that require such consent, the Board of Managers may, in connection with its approval thereof, authorize the Managing Member and/or all or less than all of the Managers to execute any and all documents necessary or convenient to carry out those actions approved by a majority of the Managers, If the Board of Managers approves executing a document or agreement without specifically authorizing signers, then the Managing Member and each of the Managers, acting individually, may execute such document or agreement on behalf of the Company. The Company shall enter into a Management Agreement (the “Management Agreement”) which shall initially engage ▇▇▇▇▇▇▇▇▇ Armstrong to be the manager of the Company’s day-to-day operations and the development of the Project, in accordance with the terms and conditions contained in the Management Agreement and this Agreement. Pursuant to the terms of this Agreement ▇▇▇▇▇▇▇▇▇ Armstrong shall serve as the Managing Member until the occurrence of a Triggering Event or is removed by the Board of Managers, at which time Cyprus shall have the authority, in its sole discretion, to assume the position of Managing Member without consent or action from any other Member or the Board of Managers and shall also have the authority, in its sole discretion, to assume the position of manager under the Management Agreement, both elections being entirely independent from the other.