Common use of Approval Required for Certain Actions Clause in Contracts

Approval Required for Certain Actions. (a) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof; (v) any Discriminatory Transaction; (vi) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof; (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary. (b) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.05. (e) Notwithstanding the foregoing, Stockholder shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

Approval Required for Certain Actions. (a) For so long as the Stockholder Tengelmann’s Outstanding Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of Stockholder Tengelmann will be required for the Company A&P to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-LawsBylaws): (i) any Business Combination by the CompanyA&P, except for the Merger and any other Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company A&P or its stockholders, stockholders as the case may be; (ii) the issuance of any Equity Security of the CompanyA&P, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, however that this clause (ii) shall not include any issuance (A) of any Roll-over Warrants, (B) pursuant to any employee compensation plan or other benefit plan, plan including stock option, restricted stock or other equity-equity based compensation plans, plans or (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant Date after giving effect to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereofMerger; (iii) any amendment to the Charter or the By-Laws Bylaws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter AmendmentMerger Agreement); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent obviate in any manner any of StockholderTengelmann’s rights hereunder or the exercise thereof; (v) the adoption, implementation or amendment of, or redemption under, any takeover defense measures (including a rights plan); (vi) any Discriminatory Transaction; (vivii) any transaction between (A) A&P or any of its Subsidiaries, on the one hand, and (B) any Affiliate of A&P (other than (1) any Director, officer or Subsidiary of A&P and (2) Tengelmann or any of its Affiliates), on the other hand; (viii) a change of the CompanyA&P’s policies concerning the need for Board approval intended or reasonably reasonable likely to circumvent have the effect of obviating any of StockholderTengelmann’s rights hereunder or the exercise thereof; (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) the issuance and delivery to Yucaipa of any action A&P Common Stock upon exercise by Yucaipa of the Company or Roll-over Warrants, except to the extent that a cash settlement of any Roll-over Warrants would reasonably be expected to cause a Liquidity Impairment (as defined in Section 5.01(f)), in which case A&P shall be permitted to issue and deliver A&P Common Stock to Yucaipa upon exercise of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent such Roll-over Warrants to the Company’s ability extent necessary to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementaryavoid a Liquidity Impairment. (b) For so long as the Stockholder Tengelmann’s Outstanding Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of at least one a majority of the Stockholder Tengelmann Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries A&P to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-LawsBylaws): (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the CompanyA&P), business operations or securities (other than Equity Securities of the Company)securities, with a Fair Market Value of more than $50,000,000, including such a disposition of equity securities of Metro, Inc. owned by A&P, but excluding any disposition to, or acquisition from or of, a wholly wholly-owned Subsidiary of the Company A&P or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party third party that is not a Subsidiary or Affiliate of the Company A&P in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company)A&P, the creation of any obligation right to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, however that this clause (ii) shall not include any issuance (A) of any Roll-over Warrants, (B) pursuant to any employee compensation plan or other benefit plan, plan including stock option, restricted stock or other equity-equity based compensation plans, plans or (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant Date after giving effect to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereofMerger; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) A&P Common Stock pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise otherwise, other than (A) a repurchase of Equity Securities of the Company A&P Common Stock from employees or former employees subject pursuant to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company A&P Common Stock from Stockholder Tengelmann pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any declaration or payment of a dividend on the A&P Common Stock; (v) the adoption or amendment of any strategic plans, priorities or direction for A&P and its Subsidiaries and their businesses for a period of at least three years, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vi) the adoption or amendment of the operating plan or budget, capital expenditure budget, financing plan or any financial goal, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vii) the appointment or removal of the chairman of the Board of Directors or the appointment (but not removal) of the chief executive officer of A&P; (viii) the Dissolution of A&P; (ix) any capital expenditure of more than $10,000,000 (excluding any capital expenditure previously approved, or capital expenditure pursuant to a capital expenditure program or budget or plan that was previously approved, by the Board of Directors as part of the approval of A&P’s annual operating plan, capital expenditures budget or otherwise); or (x) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date or the incurrence of which was approved by the Board of Directors in accordance with this Section 2.04, which refinancing is on terms consistent with or more favorable (except any refinancing to A&P) than the material terms of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing Indebtedness and does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiumsIndebtedness), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company (i) A&P or any of its Subsidiaries, on the one hand, and Stockholder(ii) Tengelmann, or any Subsidiary or Affiliate of StockholderTengelmann, on the other hand (other than the compensation of Directors directors and officers in the ordinary course of business), will require the approval of a majority of the Other Board of Directors, including a majority of the Non-Tengelmann Directors (in addition to any other Board of Directors’ Directors or stockholders’ stockholder approval required by any Law, the Charter or By-LawsBylaws). (d) The Company approval of a majority of the Board of Directors, including a majority of the Non-Tengelmann Directors, will be required for the Board of Directors to approve or authorize A&P effecting, and for A&P to effect (i) any action that is required by Law, the Charter or Bylaws to be approved by the stockholders of A&P and would reasonably be expected to adversely and disproportionately affect the stockholders of A&P other than Tengelmann or (ii) any amendment to A&P’s policies or change to A&P’s practices in a manner that would limit or adversely affect the authority of the Non-Tengelmann Directors. (e) Prior to proposing to take any action set forth in Section 2.04(a), Section 2.04(b), Section 2.04(c) or Section 2.04(d) at any meeting, the secretary for the meeting will cause to be included in the agenda of the meeting a statement that such proposed action is an action set forth in such Section 2.04(a), Section 2.04(b), Section 2.04(c) or Section 2.04(d), as applicable, the vote required to approve such action in accordance with this Agreement and the party or parties proposing such action, which party or parties will provide to A&P all relevant information relating to such action to accompany such agenda and A&P will cause such agenda to be supplied to each Director and Tengelmann at least five days prior to such meeting. (f) A&P will amend its generally applicable policies regarding matters that required approval of the Board of Directors Director approval to reflect the requirements of this Section 2.052.04. (e) Notwithstanding the foregoing, Stockholder shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

Approval Required for Certain Actions. In addition to any approval by the Board required by the Charter, the Bylaws, applicable Law or Trading Market Regulation, the prior approval of one of the Incumbent Directors and a majority of the Investor Designated Directors shall be required in order for the Board to validly approve and authorize any of the following: (a) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof; (v) any Discriminatory Transaction; (vi) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof; (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action entry by the Company or any of its Subsidiaries subsidiaries into any merger, conversion or consolidation or the acquisition (including borrowingswhether by merger, consolidation, purchase of assets or stock or otherwise) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) any action by the Company or any of its Subsidiaries, including entering into subsidiaries of any contract business or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary.assets; (b) For so long any recommendation that the Company’s stockholders tender into a tender or exchange offer, except for the Tender Offer; (c) the authorization or issuance of any equity securities or any securities convertible into or exercisable for equity securities of the Company or any subsidiary of the Company (other than shares of Common Stock into which the Acquired OP Units or Additional OP Units may be exchangeable, exercisable or convertible, as the Stockholder Percentage Interest has been continuously since case may be; other than shares of Common Stock into which the Closing Date 17.8% Warrant may be exercisable; other than options or morewarrants outstanding on the date of this Agreement or pursuant to employee or director stock option or incentive compensation or similar plans approved by the Board or a duly authorized committee of the Board after the date of this Agreement, the approval of including by at least one of the Stockholder Investor Designated Directors will be required for the on such Board of Directors to approve or authorizecommittee); (d) any sale, and for asset exchange, lease, exchange, mortgage, pledge, transfer or other disposition by merger or otherwise by the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any acquisition or disposition subsidiaries (in one transaction or a series of related transactions) of any securities or assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that subsidiary thereof which constitutes a Substantial Portion of the Company; (Ae) occurs in connection with creating any amendment to the Charter or granting Bylaws, or the adoption of or amendment to the articles of incorporation or by-laws of any Encumbrances to a Third Party that is not a Subsidiary or Affiliate subsidiary of the Company in connection with a bona fide financing (other than amendments that may be necessary or (B) arises advisable for the authorization of shares of Common Stock into which the Acquired OP Units or Additional OP Units may be exchangeable, exercisable or convertible, as a matter the case may be and other than amendments that may be necessary or advisable for the authorization of Law or occurs pursuant to a court ordershares of Common Stock into which the Warrant may be exercisable); (iif) any change in the authorized number of directors of the Board of the Company or the establishment or abolition of any Board Committee; (g) any incurrence or repayment (prior to scheduled maturity) of indebtedness (including capitalized leases) in an aggregate amount greater than $25 million; (h) any action to repurchase, retire, redeem or otherwise acquire any equity securities of the Company or any subsidiary of the Company, pursuant to self-tender offers, stock repurchase programs, open market transactions, privately-negotiated purchases or otherwise; (i) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of entry by the Company or any of its Subsidiaries subsidiaries into any Discriminatory Transaction; (j) any action to declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or enter into any agreement with respect to the voting of its capital stock; (k) any appointment or termination of any person as the Chief Executive Officer, President or Chief Financial Officer of the Company; (l) any related party transactions, including, without limitation, the redemption or exchange of partnership interests in the Operating Partnership held by the Investor Group, any “key man” or similar provision in any agreement with any third party or any amendment, modification or replacement of any such agreement; (m) any waiver or increase of the Ownership Limit (as defined in the Charter); (n) any amendment or waiver of this Agreement; (o) any action that authorizes the termination of Sections 4.01, 4.02 and 4.04 of this Agreement (other than a Liquidity Event) in accordance with Section 4.06 of this Agreement; (p) any amendment or waiver of the Tax Protection Agreement or any actions that would trigger indemnification payments under the Tax Protection Agreement; (q) any amendment or waiver of the Warrant Agreement; and (r) any decision to cease operating in a manner intended to qualify the Company as a “real estate investment trust” or “REIT” under the Internal Revenue Code. The Company shall not, and shall not permit any of its subsidiaries to, take any of the actions specified above without the Investor Group approvals required above. Notwithstanding the foregoing, no approval of the Investor Group shall be required for the Board to approve or authorize (a) the payment of any dividend or the making of any other distributions by any subsidiary of the Company to the Company or any wholly owned Subsidiary another subsidiary of the Company), (b) the creation payment by any subsidiary of the Company of any obligation to acquire such Equity Security or any amendment indebtedness owed to the terms Company, (c) the making of any such Equity Security; providedloans by, howeveror advances from, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as subsidiary of the Closing DateCompany to the Company, including the Series B Warrants or (Cd) the transfer by any subsidiary of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion Company of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company its property or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject assets to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.05. (e) Notwithstanding the foregoing, Stockholder shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

Approval Required for Certain Actions. (a) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in In addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof; (v) any Discriminatory Transaction; (vi) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof; (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary. (b) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors A Directors, if any, and a majority of the B Directors, if any, designated and elected under Article II shall be required to approve any of the following actions by the Company: (a) the amendment of the Certificate of Incorporation or the Bylaws or other organizational documents of the Company, including without limitation any and all certificates of designations of any series of preferred stock of the Company, or the amendment, termination or waiver of any provision under the Recap Agreement; (b) other than with respect to shares of New Series C Preferred Stock, securities convertible or exercisable into shares of New Series C Preferred Stock or rights or warrants entitling the holders thereof to subscribe for or purchase shares of New Series C Preferred Stock issued in addition connection with the High-Yield Financing, shares of New Common Stock, and New Series A Preferred Stock, New Series B Preferred Stock and New Series C Preferred Stock issued pursuant to the Recap Agreement (including any shares reclassified upon filing of the Amended and Restated Certificate of Incorporation of the Company and conversion of any shares issued in accordance with the Recap Agreement or reclassified upon filing of the Amended and Restated Certificate of Incorporation of the Company) and shares of Common Stock issued in connection with an Initial Public Offering or the issuance of securities pursuant to the Waterstone Agreement or the exercise of the Odetics Warrant or the exercise of options pursuant to the Existing Stock Option Plan (and related agreements) or the grant or exercise of options pursuant to the New Equity Plan (and related agreements), such grant or exercise under the New Equity Plan, together with all prior grants or exercises under the New Equity Plan since the Closing Date, representing in the aggregate no more than 15% of the Fully-Diluted Shares as of the Closing Date, the issuance, delivery or sale of any shares or equity interests, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or the issuance of any other security in respect of or in lieu of or in substitution for shares or equity interests, or the entry into any agreements restricting the transfer of, or affecting the rights of holders of shares or equity interests, the granting of any preemptive or anti- dilutive rights to any other Board holder of Directors’ any class of securities, or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval granting of the Board of Directors to reflect the requirements of this Section 2.05. (e) Notwithstanding the foregoing, Stockholder shall not have any approval registration rights with respect to any class of securities; (c) except for the High Yield Financing, the incurrence of any indebtedness for borrowed money, the making of any guarantee of any such indebtedness, the issuance or sale of any debt securities, or the prepayment or refinancing of any indebtedness for borrowed money, in each case in excess of $25 million in the aggregate; (id) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% replacement of the aggregate principal amount Company's independent auditors or the making of any material change in any method of financial accounting or accounting practice, except for any such notes or change required by reason of a concurrent change in generally accepted accounting principles; and (iie) the 2012 Convertible Notes, if at entry into any agreement with respect to the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notesforegoing.

Approval Required for Certain Actions. (a) For The Stockholder Agreement provides that, so long as the Stockholder Percentage HLR Group Interest has been continuously since the Closing Date 17.8is 30% or more, no action by the approval of Stockholder will be required for the Company to do (Surviving Corporation or authorize or permit any of its Subsidiaries subsidiaries will be taken with respect to do) any of the following actions (in addition to any other matters without the approval of a Special Majority of the Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): Directors: (i) the appointment of any Business Combination by of the CompanyChairman of the Board, except for Chief Executive Officer, President, Secretary, Treasurer, the Chief Administrative Officer, General Counsel, Chief Financial Officer or Chief Operating Officer or other executive officer in any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by similar capacity of the Surviving Corporation or to the Company or any of its stockholderssubsidiaries, as the case may be; (ii) the issuance approval of any Equity Security of the CompanyStrategic Plans and Annual Operating Plans referred to below in "Strategic and Operating Planning Process", the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to merger or consolidation of the Charter Surviving Corporation or the By-Laws (any of its subsidiaries with or into any Person other than amendments contemplated by (A) this Agreementthe Surviving Corporation or any of its subsidiaries, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter certificate of incorporation or the bylaws of the Surviving Corporation or any adoption of, or amendment to, the certificate of incorporation or the bylaws of any committee subsidiary of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof; Surviving Corporation, (v) any Discriminatory Transaction; (vi) a change acquisition of the Company’s policies concerning the need for Board approval intended assets, business, operations or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof; (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action securities by the Company Surviving Corporation or any of its Subsidiaries subsidiaries by merger or otherwise (including borrowingswhether in one transaction or a series of related transactions) that could cause which assets, business, operations or securities would constitute more than 10% of the ABL Credit Facility fair market value of the total assets of the Surviving Corporation and its subsidiaries as of the end of the most recent fiscal quarter ending prior to limitsuch transaction (a "Substantial Part" of the Surviving Corporation), restrict(vi) any sale, prohibit asset exchange, lease, exchange, mortgage, pledge, transfer or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated other disposition by merger or otherwise by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) any action by the Company Surviving Corporation or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary. (b) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws): (i) any acquisition or disposition subsidiaries (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations subsidiaries or securities (other than Equity Securities assets of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company Surviving Corporation or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary subsidiaries which constitutes a Substantial Part of the Company)Surviving Corporation, (vii) the creation settling of any obligation litigation, investigation or proceeding involving any governmental authority or where the amount to acquire such Equity Security or any amendment to the terms be paid in settlement is in excess of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans$5,000,000, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iiiviii) any repurchase of Equity Securities of material transaction between the Company Surviving Corporation or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiariessubsidiaries, on the one hand, and Stockholder, any stockholder or affiliate of the Surviving Corporation (other than any Subsidiary or Affiliate subsidiary of Stockholderthe Surviving Corporation and other than HLR and its affiliates), on the other hand (other than as specifically contemplated by the compensation Sharing and Call Option Agreement), (ix) the issuance of Directors and officers any security of the Surviving Corporation or of any security of any subsidiary of the Surviving Corporation (other than as specifically contemplated by the Merger Agreement, the Warrants or existing employee stock options), (x) any capital expenditures individually in excess of $1,000,000 or in the ordinary course aggregate in excess of business$50,000,000 per annum or which represent in the aggregate 110% or more of the total amount provided for in certain plans for such year, (xi) any reclassification, recombination, split, subdivision or redemption, purchase or other acquisition, directly or indirectly, of any debt or Equity Securities or other capital stock of the Surviving Corporation, except as provided in the Merger Agreement and the Warrants, (xii) any change in the size or composition of the Board of Directors, any committee thereof or the Management Committee or any establishment of a new committee of the Board, (xiii) any incurrence, assumption or issuance by the Surviving Corporation or any of its subsidiaries of indebtedness other than indebtedness existing immediately after the Effective Time and any refinancings thereof and other indebtedness in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, (xiv) any declaration of any dividend or any making of any other distribution with respect to, or any redemption, repurchase or other acquisition of, any class of securities of the Surviving Corporation or any of its subsidiaries, except as expressly otherwise provided in the Merger Agreement or pursuant to the Warrants, (xv) any proposal, or entry into, by the Surviving Corporation or any of its subsidiaries of any Discriminatory Transaction (as defined in the Stockholder Agreement), will require (xvi) any relocation of the headquarters of the Surviving Corporation, (xvii) any determination of compensation, benefits, perquisites and other incentives for executive officers (other than officers whose total compensation including employee stock options and similar incentives does not exceed $150,000 annually) and any approval or amendment of any plans or contracts in connection therewith, (xviii) any adoption or implementation of any takeover defense measures, including the institution, amendment or redemption by the Surviving Corporation or any of its subsidiaries of any stockholder rights plan or similar plan or device, or any change of control matters, (xix) any transaction involving, or any action by, the Surviving Corporation or any of its subsidiaries (A) leading to a circumstance in which any Person or 13D Group (as defined in the Stockholder Agreement) representing a percentage of Total Voting Power or any equity interest in the Surviving Corporation greater than 15% or (B) requiring the approval of holders of a majority of the Other securities having the right to vote generally in any election of Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect Surviving Corporation or Equity Securities and (xx) any change in the requirements of this Section 2.05. (e) Notwithstanding fiscal year or the foregoingaccounting or tax principles, Stockholder shall not have any approval rights or policies with respect to any refinancing of (i) the 2011 Convertible Notesfinancial statements, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% records or affairs of the aggregate principal amount Surviving Corporation or any of such notes its subsidiaries, except as required by GAAP or by law or (iixxi) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% any dissolution of the aggregate principal amount Surviving Corporation or any of such notesits subsidiaries, any adoption of a plan of liquidation of the Surviving Corporation of any of its subsidiaries or any action by the Surviving Corporation or any of its subsidiaries to commence any suit, case, proceeding or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors seeking to have an order for relief entered with respect to the Surviving Corporation or any of its subsidiaries, seeking to adjudicate the Surviving Corporation or any of its subsidiaries bankrupt or insolvent or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to the Surviving Corporation or any of its subsidiaries or (B) seeking appointment of a receiver, trustee custodian or other similar official for the Surviving Corporation or any of its subsidiaries or for all or any Substantial Part of the assets of the Surviving Corporation or any of its subsidiaries or making a general assignment for the benefit of the creditors of the Surviving Corporation or any of its subsidiaries.

Approval Required for Certain Actions. (a) For so long as the Stockholder Tengelmann Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of Stockholder Tengelmann will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):); provided, however, that the approval of Tengelmann will not be required in connection with the actions specified in clauses (v) and (vii) below until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholder Agreement) falls below 17.8%: (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-equity based compensation plans, (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants Date or (CD) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of StockholderTengelmann’s rights hereunder or the exercise thereof; (v) the adoption, implementation or amendment of, or redemption under, any takeover defense measures (including a rights plan); (vi) any Discriminatory Transaction; (vivii) any transaction between (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Affiliate of the Company (other than (1) any Director, officer or Subsidiary of the Company and (2) Tengelmann or any of its Affiliates), on the other hand; (viii) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of StockholderTengelmann’s rights hereunder or the exercise thereof; (viiix) the issuance and delivery to Yucaipa of any Company Common Stock upon exercise by Yucaipa of the Series B Warrants, except to the extent that a cash settlement of any Series B Warrants would reasonably be expected to cause a Liquidity Impairment (as defined in Section 5.01(f)), in which case the Company shall be permitted to issue and deliver Company Common Stock to Yucaipa upon exercise of such Series B Warrants to the extent necessary to avoid a Liquidity Impairment; (x) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder Tengelmann in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay any rights, privileges or preferences of the Convertible Preferred Stock;; or (viiixi) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ixxii) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary. (b) For so long as the Stockholder Tengelmann Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of at least one a majority of the Stockholder Tengelmann Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):); provided, however, that the approval of a majority of the Tengelmann Directors will not be required in connection with the actions specified in clauses (v), (vi), (vii)(B), (viii) and (ix) until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholders Agreement) falls below 17.8%: (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants Date or (CD) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder Tengelmann pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (v) the adoption or amendment of any long term (i.e., three years or more) strategic plans, priorities or direction for the Company and its Subsidiaries and their businesses, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vi) the adoption or amendment of the operating plan or budget, capital expenditure budget, financing plan or any financial goal, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vii) (A) the appointment or removal of the chairman of the Board of Directors or (B) the appointment (but not removal) of the chief executive officer of the Company; (viii) the Dissolution of the Company; (ix) any capital expenditure of more than $10,000,000 (excluding any capital expenditure previously approved, or capital expenditure pursuant to a capital expenditure program or budget or plan that was previously approved, by the Board of Directors as part of the approval of the Company’s annual operating plan, capital expenditures budget or otherwise); or (x) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii2.04(a)(x)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and StockholderTengelmann, or any Subsidiary or Affiliate of StockholderTengelmann, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.052.04. (e) Notwithstanding the foregoing, Stockholder Tengelmann shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, StockholderTengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, StockholderTengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

Approval Required for Certain Actions. (a) For so long as the Stockholder Percentage Interest has been continuously since From the Closing Date 17.8% or moreuntil the Initial Sunset Date, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other approval by the Board of Directors or stockholder approval required by any Lawthe Charter, the Charter Bylaws, applicable Law or By-Laws):applicable rules and regulations of the Commission or the Stock Exchange, the prior approval of the Independent Audit Committee shall be required in order for the Board to validly approve and authorize a voluntary delisting of the Company Common Stock from the Stock Exchange or a transaction (including an merger, recapitalization, stock split or otherwise) which results in (i) the delisting of the Company Common Stock from the Stock Exchange, (ii) the Company ceasing to be an SEC Reporting Company or (iii) the Company filing a Form 25, Form 15 or any similar form with the Commission. From the Closing until the Initial Sunset Date, the Board shall cause the Company to take all actions required to maintain the listing of the Company Common Stock on the Stock Exchange and to cause the Company to be an SEC Reporting Company. (b) From the Closing until the Initial Sunset Date, in addition to any approval by the Board required by the Charter, the Bylaws, applicable Law or applicable rules and regulations of the Commission or the Stock Exchange, the prior approval of (1) the Independent Audit Committee or (2) the Disinterested Audit Committee, as applicable, shall be required in order for the Board to validly approve and authorize any of the following: (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of that certain Management Services Agreement (the “Services Agreement”) dated June 14, 2019, by and between the Company and Steel Services Ltd., an indirect wholly-owned subsidiary of SP (“Steel Services”), provided, however, that nothing herein shall limit Steel Service’s or SP’s right to terminate the Services Agreement pursuant to its terms; or (ii) any such Equity SecurityRelated Party Transaction (other than an amendment to the Services Agreement) in which case, the Independent Audit Committee or the Disinterested Audit Committee, as applicable, will, to the extent it determines, in its sole discretion (except as otherwise indicated in this Section 2.03(b)(ii)), that such issuanceRelated Party Transaction is material, creation or amendment requires stockholder approvalimplement a special process that is customary in connection with the review and approval of such Related Party Transaction; provided, however, that this clause (ii) the parties agree that, any Related Party Transaction where the amount involved exceeds $80 million shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof; (v) any Discriminatory Transaction; (vi) a change of deemed material if the Company’s policies concerning Market Value at such time is below $750 million; provided further, however, in determining if a Related Party Transaction is material, the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder Independent Audit Committee or the exercise thereof; (vii) prior to the Maturity DateDisinterested Audit Committee, any amendment as applicable, shall treat all related steps or refinancing transactions that form part of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity a Related Party Transaction as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock; (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ix) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementarysingle Related Party Transaction. (bc) For so long as the Stockholder Percentage Interest has been continuously since Subject to Section 2.03(d), from and after the Closing Date 17.8% or moreuntil the Intermediate Sunset Date, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other approval by the Board of Directors or stockholder approval required by any Lawthe Charter, the Charter Bylaws, applicable Law or By-Laws): (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary applicable rules and regulations of the Company)Commission or the Stock Exchange, business operations or securities (other than Equity Securities the prior approval of the Company)(1) Independent Audit Committee or (2) the Disinterested Audit Committee, as applicable, shall be required in order for the Board to validly approve and authorize a going private transaction pursuant to which the members of the SP Group would acquire all of the outstanding Company Common Stock not held by the SP Group (with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or ofalternative transaction that would have the same impact, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non“Going-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the BoardPrivate Transaction”); provided, however, that prior to approving any Going-Private Transaction, the foregoing Independent Audit Committee or Disinterested Audit Committee, as applicable, shall not apply engage financial and legal advisors (and such other advisors as it deems appropriate) pursuant to any refinancing of Indebtedness existing on the Closing Date (except any refinancing Section 2.02(c) to assist in its evaluation of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or ByGoing-Laws)Private Transaction. (d) The Company will cause its generally From and after the Closing until the Final Sunset Date, in addition to any approval by the Board required by the Charter, the Bylaws, applicable policies regarding matters that required Law or applicable rules and regulations of the Commission or the Stock Exchange, the prior approval of the (1) Independent Audit Committee or (2) the Disinterested Audit Committee, as applicable, shall be required in order for the Board to validly approve and authorize a short-form or squeeze-out merger between the Company and a Person or Persons within the SP Group; provided, however, that prior to approving any such short-form or squeeze-out merger, the Independent Audit Committee or Disinterested Audit Committee, as applicable, shall engage financial and legal advisors (and such other advisors as it deems appropriate) pursuant to Section 2.02(c) to assist in its evaluation of Directors to reflect the requirements of this Section 2.05short-form or squeeze-out merger. (e) Notwithstanding From and after the foregoingClosing until the Final Sunset Date, Stockholder shall not have in addition to any approval rights with respect by the Board required by the Charter, the Bylaws, applicable Law or applicable rules and regulations of the Commission or the Stock Exchange, the prior approval of the (1) Independent Audit Committee or (2) the Disinterested Audit Committee, as applicable, shall be required prior to any refinancing transfer of (i) equity interests in the 2011 Convertible Notes, Company by the members of the SP Group if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25transfers would result in 80% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% voting power and value of the aggregate principal amount equity interests in the Company that are held by the members of such notesthe SP Group being held by one corporate entity.

Approval Required for Certain Actions. (a) For so long as the Stockholder Tengelmann Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of Stockholder Tengelmann will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):); provided, however, that the approval of Tengelmann will not be required in connection with the actions specified in clauses (v) and (vii) below until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholder Agreement) falls below 17.8%: (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-equity based compensation plans, (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants Date or (CD) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment); (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of StockholderTengelmann’s rights hereunder or the exercise thereof; (v) the adoption, implementation or amendment of, or redemption under, any takeover defense measures (including a rights plan); (vi) any Discriminatory Transaction; (vivii) any transaction between (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Affiliate of the Company (other than (1) any Director, officer or Subsidiary of the Company and (2) Tengelmann or any of its Affiliates), on the other hand; (viii) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of StockholderTengelmann’s rights hereunder or the exercise thereof; (viiix) the issuance and delivery to Yucaipa of any Company Common Stock upon exercise by Yucaipa of the Series B Warrants, except to the extent that a cash settlement of any Series B Warrants would reasonably be expected to cause a Liquidity Impairment (as defined in Section 5.01(f)), in which case the Company shall be permitted to issue and deliver Company Common Stock to Yucaipa upon exercise of such Series B Warrants to the extent necessary to avoid a Liquidity Impairment; (x) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder Tengelmann in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay any rights, privileges or preferences of the Convertible Preferred Stock;; or (viiixi) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or (ixxii) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary. (b) For so long as the Stockholder Tengelmann Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 25%, the approval of at least one a majority of the Stockholder Tengelmann Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):); provided, however, that the approval of a majority of the Tengelmann Directors will not be required in connection with the actions specified in clauses (v), (vi), (vii)(B), (viii) and (ix) until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholders Agreement) falls below 17.8%: (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (BC) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants Date or (CD) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder Tengelmann pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (v) the adoption or amendment of any long term (i.e., three years or more) strategic plans, priorities or direction for the Company and its Subsidiaries and their businesses, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vi) the adoption or amendment of the operating plan or budget, capital expenditure budget, financing plan or any financial goal, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period; (vii) (A) the appointment or removal of the chairman of the Board of Directors or (B) the appointment (but not removal) of the chief executive officer of the Company; (viii) the Dissolution of the Company; (ix) any capital expenditure of more than $10,000,000 (excluding any capital expenditure previously approved, or capital expenditure pursuant to a capital expenditure program or budget or plan that was previously approved, by the Board of Directors as part of the approval of the Company’s annual operating plan, capital expenditures budget or otherwise); or (x) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii2.04(a)(x)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and StockholderTengelmann, or any Subsidiary or Affiliate of StockholderTengelmann, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws). (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.052.04. (e) Notwithstanding the foregoing, Stockholder Tengelmann shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, StockholderTengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, StockholderTengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

Approval Required for Certain Actions. (a) For so So long as the Stockholder Ciba's Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 40%, the approval of Stockholder will Ciba shall be required for the Company to do (or authorize or permit any of its Subsidiaries to do) do or effect any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):following: (i) any Business Combination the entry by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or any of its stockholders, as the case may beSubsidiaries into any Discriminatory Transaction; (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred a Level II Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereofIssuance; (iii) a reclassification, combination, split, subdivision or redemption, purchase or other acquisition, directly or indirectly, of any amendment to debt or equity securities or other capital stock of the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment)Company; (iv) any amendment to the charter Certificate of Incorporation of the Company or, subject to Section 2.01, any committee change in the size or composition of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise committee thereof; (v) any Discriminatory Transactionamendment to the By-laws of the Company; PROVIDED that Ciba's approval to any such amendment voted on by the Board of Directors and approved by a majority of Investor Directors will be deemed to have been given unless prior to the Board of Directors' vote on such amendment Ciba notifies the Company of its disapproval thereof; (vi) a change any incurrence, assumption or issuance by the Company or any of its Subsidiaries of Indebtedness (other than any Indebtedness of CCD assumed at the Closing and any refinancings thereof to the extent such refinancings do not increase the aggregate outstanding principal amount thereof) that, when aggregated with the principal amount of all then outstanding Indebtedness of the Company’s policies concerning Company and its Subsidiaries incurred, assumed or issued after the need for Board approval intended date of this Agreement (other than any Indebtedness of CCD assumed at the Closing and any refinancings thereof to the extent such refinancings do not increase the aggregate outstanding principal amount thereof), exceeds $460,000,000 if such incurrence, assumption or issuance (A) might reasonably likely be expected to circumvent any of Stockholder’s rights hereunder result in the Index Debt being rated less than Investment Grade by Xxxxx'x or S&P or (B) occurs at a time when the exercise thereofIndex Debt is rated less than Investment Grade by Xxxxx'x or S&P; (vii) prior to the Maturity Dateadoption or implementation of any takeover defense measures (except against Persons other than Ciba and its Affiliates), any including the institution, amendment or refinancing redemption by the Company or any of the ABL Credit Agreementits Subsidiaries of any stockholder rights plan or similar plan or device, except for changes or any change of control matters (including change of control provisions in future collaborations that could not reasonably be expected have a material adverse effect on the value of Ciba's holdings in the Company if Ciba were to adversely affect Stockholder increase its ownership interest in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred StockCompany); (viii) any transaction involving or any action by the Company or any Subsidiary (a) leading to a circumstance in which any Person or 13D Group (other than Ciba and/or its Affiliates) shall beneficially own or control Equity Securities representing a percentage of Total Voting Power, or any equity interest in the Company or its successor, greater than 15% or (b) requiring the approval or participation of holders of a majority of the Voting Stock or Equity Securities; (ix) any Level II Acquisition; (x) any sale, asset exchange, lease, exchange, mortgage, pledge, transfer or other disposition by merger or otherwise by the Company or any of its Subsidiaries (including borrowingsin one transaction or a series of related transactions) that could cause of all of the ABL Credit Facility to limit, restrict, prohibit business or prevent assets of the Company from paying dividends in full in cash on and its Subsidiaries taken as a whole or of any part thereof constituting a Substantial Part of the Convertible Preferred Stock Company; (xi) any change in the amounts contemplated by Company's fiscal year; (xii) any change in the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors strategic mission of the BoardCompany and its Subsidiaries from that of being a technology-driven health care company; or (ixxiii) the dissolution of the Company or any Significant Subsidiary thereof; the adoption of a plan of liquidation of the Company or any Significant Subsidiary thereof; or any action by the Company or any of its SubsidiariesSignificant Subsidiary thereof to commence any suit, including entering into any contract case, proceeding or other agreementaction (A) under any existing or future law of any jurisdiction relating to bankruptcy, that could limitinsolvency, restrictreorganization or relief of debtors seeking to have an order for relief entered with respect to the Company or any Significant Subsidiary thereof, prohibit or prevent seeking to adjudicate the Company’s ability Company or any Significant Subsidiary thereof a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to pay dividends in full in cash on the Convertible Preferred Stock in Company or any Significant Subsidiary thereof or (B) seeking appointment of a receiver, trustee, custodian or other similar official for the amounts contemplated by Company or any Significant Subsidiary thereof, or for all or any Substantial Part of the Convertible Preferred Articles Supplementaryassets of the Company or any Significant Subsidiary thereof, or making a general assignment for the benefit of the creditors of the Company or any Significant Subsidiary thereof. (b) For so So long as the Stockholder Ciba's Percentage Interest has been continuously since the Closing Date 17.8% or moreis at least 40%, the approval of at least one a majority of the Stockholder Investor Directors will shall be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):following: (i) the declaration or payment by the Company of any acquisition Extraordinary Dividend; (ii) the issuance of any Equity Securities or other capital stock (or any options, warrants or rights with respect thereto) of the Company or any of its Subsidiaries to any of their directors, officers or other employees as compensation (pursuant to any plan or otherwise), except the issuance of Common Stock or options for the purchase thereof (A) pursuant to any employee compensation plan in existence at the Closing as long as the number of shares issued or issuable at any time pursuant to grants in any year (other than grants described in the following clause (B) or (C)) (1) does not exceed the lesser of 4% of the number of shares of Common Stock outstanding at the beginning of such year and 1,750,000 and (2) are issued for a price (or, in the case of options, having an exercise price) at least equal to fair market value (as defined in such plan), (B) as contemplated by Section 5.14(f) of the Investment Agreement or (C) to officers or other employees of the CCD component of the Company's diagnostics business during the three year period commencing with the Closing in amounts consistent with amounts granted to comparable employees of the Company; (iii) (A) during the five year period commencing with the Closing, (1) any changes to any employment agreement (or related arrangements) entered into between the Company and C. Xxxxxxx Xxxxx as contemplated by the Investment Agreement and (2) any disposition (in one transaction or a series of related transactions) of all of the business or assets of CCD or 25% or more thereof and (B) during the one year period commencing with the Closing, any assets removal, termination (including any Equity Securities constructive termination) or replacement of any Subsidiary him as chief operating officer of the Company), business operations or securities of CCD (other than Equity Securities of the Companyfor cause), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order; (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof; (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes; (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except amendment to the extent approved in advance by a majority By-laws of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or; (v) the declaration of in connection with any dividends or other distributions (whether in cash or property) on shares of Company Common Stock. (c) Any transaction between Acquisition by the Company or any of its Subsidiaries, on the one handgiving of any consideration by the Company or any of its Subsidiaries other than cash, and Stockholdershares of Specified Equity Securities or, to the extent any other required approval pursuant to Section 2.04 has been obtained, any assets of the Company or any of its Subsidiaries; (vi) subject to any other approval required under this Section 2.04, the issuance of any security of the Company or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).Specified Equity Securities; or (dvii) The Company will cause its generally applicable policies regarding matters that required approval the establishment of any committee of the Board of Directors to reflect the requirements of this other than as provided in Section 2.052.03(b)(i) through (v). (ec) Notwithstanding the foregoing, Stockholder shall not have any approval rights with With respect to any refinancing Acquisitions or Stock Issuances consummated by the Company or any of its Subsidiaries between the fifth and tenth anniversaries of the Effectiveness of this Agreement (i) and for each subsequent five year period), Ciba and the 2011 Convertible Notes, if at Company shall negotiate in good faith prior to the time beginning of such contemplated refinancingperiod regarding whether the $125,000,000 limit in the definition of Level I Acquisition or the $400,000,000 limits in the definition of Level I Stock Issuance should be revised; PROVIDED that, Stockholderabsent any mutual written agreement among the parties hereto, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of limits shall continue unchanged during such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notesperiods.