Common use of BACKGROUND FACTS Clause in Contracts

BACKGROUND FACTS. Effective as of May 26, 2010, the Company adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by Amendment No. 2 to Tax Benefit Preservation Plan dated April 13, 2017 and the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 5% Shareholders (as defined below) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person from becoming an Acquiring Person and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates of such Person, that becomes the Beneficial Owner of 4.9% or more of the Company’s outstanding Common Stock. Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons (as defined below) have informed the Company that as of the Effective Date, the Initial Requesting Persons, together with all of their respective Affiliates and Associates, Beneficially Own the Current Beneficially Owned Shares. In the Plan Exemption Request Letter, the Initial Requesting Persons have requested that the Initial Requesting Persons be considered for a Plan Exemption to acquire Beneficial Ownership of additional shares of Common Stock. The Board has considered the Initial Requesting Persons’ request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, provided that the aggregate number of shares of Common Stock Beneficially Owned by the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of the additional shares of Common Stock, subject to and in reliance upon the Requesting Persons entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

BACKGROUND FACTS. Effective as of May 26, 2010, the Company has adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by Amendment No. 2 to Tax Benefit Preservation Plan dated April 13, 2017 and the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 “5% Shareholders shareholders” (as defined belowunder Section 382) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person “Person” (as defined in the Plan) from becoming an “Acquiring Person Person” (as defined in the Plan) and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates “Affiliates” (as defined in the Plan) of such Person, that becomes the “Beneficial Owner Owner” (as defined in the Plan) of 4.94.90% or more of the Company’s outstanding “Common Stock” (as defined in the Plan). Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons On November 15, 2010, Xxxxx Capital Management, LP (as defined below“Xxxxx Capital”) have informed filed a Form 13F with the Company Securities and Exchange Commission reporting, among other things, that as of September 30, 2010, various investment funds managed by Xxxxx Capital (“Xxxxx Funds”) held, in the aggregate, 2,496,825, shares of Common Stock in the Company, or approximately 5.5% of the Company’s outstanding Common Stock. The Company first became aware of this filing on November 16, 2010. Since September 30, 2010, the Xxxxx Funds have continued to acquire shares of Common Stock. As of the Effective Date, the Initial Requesting Personsholdings of Common Stock by the Xxxxx Funds are as set forth on the signature page hereto. As a result of such holdings, together with all of their respective Affiliates Xxxxx Capital and Associatesits Affiliates, including the Xxxxx Funds, Beneficially Own approximately 7% of the Current Beneficially Owned SharesCompany’s outstanding Common Stock as of the Effective Date and are deemed to be an Acquiring Person for purposes of the Plan. In the Plan Exemption Request Letter, the Initial Requesting Persons have Xxxxx has requested that the Initial Requesting Persons Board consider whether the Board would exercise its discretionary authority under the Plan to xxxx Xxxxx and its Affiliates not to be considered for a Plan Exemption to acquire an Acquiring Person because the acquisition of Beneficial Ownership of additional shares of Common StockStock by Xxxxx and its Affiliates will not be likely to directly or indirectly limit the availability to the Company of the Tax Benefits or otherwise is in the best interests of the Company (“Plan Exemption”). The Board has considered the Initial Requesting PersonsXxxxx’ request and is prepared to grant the Requesting Persons xxxxx Xxxxx and its Affiliates a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, provided that the aggregate number of shares of Common Stock Beneficially Owned by the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of the additional shares of Common StockExemption, subject to and in reliance upon the Requesting Persons Stockholders entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:.

BACKGROUND FACTS. Effective as of May 26, 2010, the Company adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by 2014, Amendment No. 2 to Tax Benefit Preservation Plan dated as April 13, 2017 2017, and Amendment No. 3 dated as of March 31, 2020, and with the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 5% Shareholders (as defined below) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person from becoming an Acquiring Person and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates of such Person, that becomes the Beneficial Owner of 4.9% or more of the Company’s outstanding Common Stock. Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons (as defined below) and the Company previously entered into a Tax Benefit Preservation Plan Exemption Agreement dated as of May 12, 2021 (“Original Exemption Agreement”), pursuant to which the Initial Requesting Persons were granted an exemption under the Plan to acquire up to 875,281 shares of Common Stock, representing approximately six and one-half percent (6.5%) of the Company’s 13,465,871 shares of Common Stock outstanding as of May 12, 2021 (“Original Effective Date”). The Initial Requesting Persons have informed the Company that as of the Effective Date, the Initial Requesting Persons, together with all of their respective Affiliates and Associates, Beneficially Own the Current Beneficially Owned Shares. In the Plan Exemption Request Letter, the Initial Requesting Persons have requested that the Initial Requesting Persons be considered for a Plan Exemption to acquire Beneficial Ownership of additional shares of Common StockStock beyond the number of shares of Common Stock allowed by the Original Exemption Agreement. Tax Benefit Preservation Plan Exemption Agreement The Board has considered the Initial Requesting Persons’ request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, provided that the aggregate number of shares of Common Stock Beneficially Owned by the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of the additional shares of Common Stock, subject to and in reliance upon the Requesting Persons entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

BACKGROUND FACTS. Effective as of May 26, 2010, the Company adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by 2014, Amendment No. 2 to Tax Benefit Preservation Plan dated as April 13, 2017 2017, and Amendment No. 3 dated as of March 31, 2020, and with the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 5% Shareholders (as defined below) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person from becoming an Acquiring Person and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates of such Person, that becomes the Beneficial Owner of 4.9% or more of the Company’s outstanding Common Stock. Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons (as defined below) and the Company previously entered into a Tax Benefit Preservation Plan Exemption Agreement dated as of May 12, 2021 (“Original Exemption Agreement”), pursuant to which the Initial Requesting Persons were granted an exemption under the Plan to acquire up to 875,281 shares of Common Stock, representing approximately six and one-half percent (6.5%) of the Company’s 13,465,871 shares of Common Stock outstanding as of May 12, 2021 (“Original Effective Date”). The Initial Requesting Persons have informed the Company that as of the Effective Date, the Initial Requesting Persons, together with all of their respective Affiliates and Associates, Beneficially Own the Current Beneficially Owned Shares. In the Plan Exemption Request Letter, the Initial Requesting Persons have requested that the Initial Requesting Persons be considered for a Plan Exemption to acquire Beneficial Ownership of additional shares of Common StockStock beyond the number of shares of Common Stock allowed by the Original Exemption Agreement. The Board has considered the Initial Requesting Persons’ request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, provided that the aggregate number of shares of Common Stock Beneficially Owned by the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of the additional shares of Common Stock, subject to and in reliance upon the Requesting Persons entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

BACKGROUND FACTS. Effective as of May 26, 2010, the Company has adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by Amendment No. 2 to Tax Benefit Preservation Plan dated April 13, 2017 and the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 “5% Shareholders shareholders” (as defined belowunder Section 382) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person “Person” (as defined in the Plan) from becoming an “Acquiring Person Person” (as defined in the Plan) and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates “Affiliates” (as defined in the Plan) of such Person, that becomes the “Beneficial Owner Owner” (as defined in the Plan) of 4.94.90% or more of the Company’s outstanding “Common Stock” (as defined in the Plan). Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons Piton Capital Partners LLC, a Delaware limited liability company (as defined below) have “Piton”), is a Stockholder and has informed the Company that as of the Effective Date, the Initial Requesting PersonsPiton, together with all of their respective its Affiliates and Associates, Beneficially Own Owns 625,000 shares of Common Stock (the “Current Holdings”). As of the Effective Date, the Current Beneficially Owned SharesHoldings are as set forth on Exhibit A attached hereto and incorporated herein by reference (“Beneficial Ownership Schedule”). In Piton has informed the Plan Company that if permitted to do so under the Plan, Piton would be interested in acquiring additional shares of Common Stock in excess of the Current Holdings. By letter dated September 27, 2017, a copy of which is attached hereto as Exhibit C and incorporated herein by reference, (“Exemption Request Letter”), the Initial Requesting Persons have Piton requested that the Initial Requesting Persons Board consider whether the Board would exercise its discretionary authority under the Plan to deem Piton and its Affiliates not to be considered for a Plan Exemption to acquire an Acquiring Person by reason of the acquisition of Beneficial Ownership of additional shares of Common StockStock because the acquisition of Beneficial Ownership of shares of additional shares Common Stock by Piton and its Affiliates will not be likely to directly or indirectly limit the availability to the Company of the Tax Benefits or otherwise is in the best interests of the Company (i.e., gxxxx Xxxxx a Plan Exemption). The Board has considered the Initial Requesting Persons’ Piton’s request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, Holdings provided that the aggregate number of shares of Common Stock Beneficially Owned by Piton, any other Stockholders that may become a party to this Agreement in accordance with the Requesting Persons terms hereof and any of their respective Affiliates and Associates does not collectively exceed 7.5% of the Plan Exemption Limit Company’s outstanding shares of Common Stock at the time of the acquisition of Beneficial Ownership of the additional shares of Common Stock, subject to and in reliance upon the Requesting Persons Piton and any other such Stockholders entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:.

BACKGROUND FACTS. Effective as of May 26, 2010, the Company has adopted a Tax Benefit Preservation Plan ("Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by Amendment No. 2 to Tax Benefit Preservation Plan dated April 13, 2017 and the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 (the original plan, as amended and adjusted, is collectively referred to herein as the “Plan”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan"). The Board of Directors of the Company (“"Board”") adopted the Plan to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“"Tax Benefits”") that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s 's ability to use the Tax Benefits will be adversely affected if there is an “"ownership change” " of the Company as defined under Section 382 of the Internal Revenue Code (“"Section 382”"). In general, an ownership change will occur if the Company’s Section 382 's "5% Shareholders shareholders" (as defined belowunder Section 382) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan was adopted to reduce the likelihood that the Company’s 's use of its Tax Benefits could be substantially limited under Section 382. The Plan is intended to deter any Person "Person" (as defined in the Plan) from becoming an "Acquiring Person Person" (as defined in the Plan) and thereby jeopardizing the Company’s 's Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates "Affiliates" (as defined in the Plan) of such Person, that becomes the "Beneficial Owner Owner" (as defined in the Plan) of 4.94.90% or more of the Company’s 's outstanding "Common Stock" (as defined in the Plan). Under the Plan, the Board may, in its sole discretion, exempt any person from being deemed an Acquiring Person for purposes of the Plan if the Board determines that such person’s 's ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s 's Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons On August 7, 2012, Mercury Management, L.L.C., a Texas limited liability company (as defined below"Mercury") have informed notified the Company that as various investment funds managed by Mercury ("Mercury Funds") held, in the aggregate, approximately 400,000 shares of Common Stock in the Company, or approximately 4.5% of the Effective DateCompany's outstanding Common Stock. Mercury informed that Company that if permitted to do so under the Plan, Mercury and the Initial Requesting Persons, together with all of their respective Affiliates and Associates, Beneficially Own the Current Beneficially Owned Shares. In the Plan Exemption Request Letter, the Initial Requesting Persons have requested that the Initial Requesting Persons Mercury Funds would be considered for a Plan Exemption to acquire interested in acquiring Beneficial Ownership of additional shares of Common Stock. The Board has considered the Initial Requesting Persons’ request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess As of the Current Beneficially Owned SharesEffective Date, provided that the aggregate number of shares holdings of Common Stock Beneficially Owned by Mercury and its Affiliates, including the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed Mercury Funds, are as set forth on the signature page hereto. Mercury has requested that the Board consider whether the Board would exercise its discretionary authority under the Plan Exemption Limit at the time to deem Mercury and its Affiliates not to be an Acquiring Person by reason of the acquisition of Beneficial Ownership of the additional shares of Common StockStock because the acquisition of Beneficial Ownership of shares of Common Stock by Mercury and its Affiliates will not be likely to directly or indirectly limit the availability to the Company of the Tax Benefits or otherwise is in the best interests of the Company ("Plan Exemption"). The Board has considered Mercury' request and is prepared to grant Mercury and its Affiliates a Plan Exemption, subject to and in reliance upon the Requesting Persons Stockholders entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration of the representations, warranties, covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:.

BACKGROUND FACTS. Effective as of May 26August 9, 20102009, the Company has adopted a Tax Benefit Preservation Plan, which plan was amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014 and by Amendment No. 2 to Tax Benefit Preservation Plan dated April 13, 2017 and the rights thereunder adjusted by that Certificate of Adjustment dated as of July 12, 2012 Section 382 Rights Agreement (the original plan, as amended and adjusted, is collectively referred to herein as the “PlanRights Agreement”; capitalized terms used but not otherwise defined herein shall have the definitions given in the Plan). The Board of Directors of the Company (“Board”) adopted the Plan Rights Agreement to protect stockholder value by preserving important tax assets. The Company has generated substantial net operating loss carryovers and other tax attributes for United States federal income tax purposes (“Tax Benefits”) that can generally be used to offset future taxable income and therefore reduce federal income tax obligations. However, the Company’s ability to use the Tax Benefits will be adversely affected if there is an “ownership change” of the Company as defined under Section 382 of the Internal Revenue Code (“Section 382”). In general, an ownership change will occur if the Company’s Section 382 “5% Shareholders shareholders” (as defined belowunder Section 382) collectively increase their ownership in the Company by more than 50% over a rolling three-year period. The Plan Rights Agreement was adopted to reduce the likelihood that the Company’s use of its Tax Benefits could be substantially limited under Section 382. The Plan Rights Agreement is intended to deter any Person “Person” (as defined in the Rights Agreement) from becoming an “Acquiring Person Person” (as defined in the Rights Agreement) and thereby jeopardizing the Company’s Tax Benefits. In general, an Acquiring Person is any Person, itself or together with all Affiliates “Affiliates” (as defined in the Rights Agreement) of such Person, that becomes the “Beneficial Owner Owner” (as defined in the Rights Agreement) of 4.94.90% or more of Company Stock (as defined in the Company’s outstanding Common StockRights Agreement). Under the PlanRights Agreement, a Person shall be deemed to be a Beneficial Owner of any securities or interests in the Company which such Person or any of such Person’s Affiliates or Associates (as defined in the Rights Agreement), directly or indirectly, has the right to vote or dispose of or has “beneficial ownership” of under Rule 13d-3 of the General Rules and Regulations under the Exchange Act (the “Exchange Act Regulations”) as in effect on the effective date of the Rights Agreement, including pursuant to any agreement, arrangement or understanding (whether or not in writing), but only if the effect of such agreement, arrangement or understanding is to treat such Persons as an “entity” under Treasury Regulations Section 1.382-3(a)(1). Xxxxx Capital Management, L.P. (“Xxxxx Capital”), the general partner and/or investment adviser of certain of the Stockholders, has requested that the Board mayconfirm that neither Xxxxx Capital nor any Stockholder, in its sole discretionincluding their Associates and Affiliates, exempt any person from being are deemed to be an Acquiring Person for purposes of the Plan if the Board determines that so long as each such person’s ownership of Common Stock will not be likely to directly or indirectly limit the availability of the Company’s Tax Benefits or is otherwise in the best interests of the Company. The Board shall not have any obligation, implied or otherwise, to grant such an exemption. The Initial Requesting Persons (as defined below) have informed the Company that as of the Effective Date, the Initial Requesting Persons, together Stockholder complies with all of their respective Affiliates and Associates, Beneficially Own the Current Beneficially Owned Sharesterms of this Agreement. In the Plan Exemption Request Letter, the Initial Requesting Persons have requested that the Initial Requesting Persons be considered for a Plan Exemption to acquire Beneficial Ownership of additional shares of Common Stock. The Board has considered the Initial Requesting Persons’ request and is prepared to grant the Requesting Persons a Plan Exemption pursuant to this Agreement to acquire shares of Common Stock in excess of the Current Beneficially Owned Shares, provided that the aggregate number of shares of Common Stock Beneficially Owned by the Requesting Persons and any of their respective Affiliates and Associates does not collectively exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of the additional shares of Common Stock, subject Subject to and in reliance upon the Requesting Persons signatories hereto entering into this Agreement and the Requesting Persons and their respective Affiliates and Associates remaining in compliance with the terms and conditions set forth in this Agreement. In consideration , the Company and the Board have considered Xxxxx Capital’s request and are prepared to confirm that no Stockholder shall be deemed to be an Acquiring Person so long as each such Stockholder complies with all of the representations, warranties, covenants and agreements set forth in terms of this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:.