Common use of Board and Committee Representation Clause in Contracts

Board and Committee Representation. (a) The Company agrees: (i) no later than October 8, 2012, to appoint Xxxxxxx X. Xxxxxxxx (the designee of the Icahn Group) or his Replacement (as hereinafter defined) (Xx. Xxxxxxx X. Intrieri and his Replacement, the “Icahn Nominee”), as a Class I or Class II director in replacement of a director serving on the Board of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation in the form previously provided to the Icahn Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual Meeting”), and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn Group and the MHR Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn Group and the MHR Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later of December 15, 2012 and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn Group and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 and Section 3(d)), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn Nominee and the Mutual Designee in the Company’s slate of nominees for election as directors of the Company at the 2013 Annual Meeting; (v) subject to (A) compliance with applicable New York Stock Exchange listing requirements, being, as of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual (the “NYSE Manual”) and (B) compliance with changes in applicable law after the date hereof, no later than October 8, 2012, and at all times thereafter provided an Icahn Nominee is a member of the Board, to include an Icahn Nominee on the Nominating and Corporate Governance Committee (or such other committee responsible for the organizational structure of the Board and its committees, including the search to identify a chief executive officer). The Company hereby acknowledges and agrees that the Icahn Nominee does not have a material relationship with the Company as such term is used in Section 303A.02 of the NYSE Manual by virtue of the Icahn Group’s beneficial ownership of shares of Common Stock as of the date hereof; (vi) should any Icahn Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting), the Icahn Group, in the case of any Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person for each such Icahn Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn Group, in the case of the Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn Nominee shall be deemed to be the Icahn Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (vii) to use commercially reasonable efforts to cause the election of the Icahn Nominee and the Mutual Designee to the Board at the 2013 Annual Meeting (including recommending that the Company’s stockholders vote in favor of the election of the Icahn Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting and otherwise supporting such nominees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, to notify the Icahn Group prior to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before the advance notice deadlines set forth in Sections 8 and 9 of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to use commercially reasonable efforts to cause the election of any such nominees so nominated by the Company (including recommending that the Company’s stockholders vote in favor of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (ix) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, so long as an Icahn Nominee is a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (x) no later than October 5, 2012, the Company shall disband the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn Nominee is a member of the Board, to include an Icahn Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn Group, together with all controlled Affiliates of the members of the Icahn Group (such controlled Affiliates, collectively and individually, the “Icahn Affiliates”), ceases collectively to beneficially own (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), at least 5,125,250 shares of Common Stock as of such date, (1) the Icahn Group shall cause the Icahn Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits and (2) the Company shall have no further obligations under this Section 2. In furtherance of this Section 2(b), any Icahn Nominee shall, prior to his or her appointment to the Board, and each member of the Icahn Group shall cause each such Icahn Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.

Board and Committee Representation. (a) The Company agrees: (a) (i) no later than October 8, 2012upon execution of this Agreement, to appoint Xxxxxxx X. Xxxxxxxx (Xxxxx Xxxxx and Xxxxx Xxxxxxxxx to the designee board of the Icahn Group) or his Replacement (as hereinafter defined) (Xx. Xxxxxxx X. Intrieri and his Replacement, the “Icahn Nominee”), as a Class I or Class II director in replacement of a director serving on the Board directors of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation in the form previously provided to the Icahn Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual MeetingBoard”), ) and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn Group and the MHR Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn Group and the MHR Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later announcement of December 15, 2012 management’s and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn Group and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 and Section 3(d)), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn Nominee and the Mutual Designee in the Company’s slate of nominees for election as directors of the Company at the 2013 Company’s 2010 annual meeting of stockholders (the “2010 Annual Meeting”) (A) to notify the Icahn Group in writing that two incumbent directors of the Board will not stand for re-election at the 2010 Annual Meeting and (B) to reduce the size of the Board to ten (10) directors; (b) upon execution of this Agreement, if it does not already exist, to create a committee of the Board for the purpose of considering strategic or other significant transactions (the “Strategic Transaction Committee”), and at all times, to include the two Icahn Suggested Nominees (as defined below) on the Strategic Transaction Committee (and such other committee formed, from time to time, for the purpose of considering strategic or other significant transactions), which such committee may be composed of either four (4) or five (5) directors; provided, however, that if it is composed of five (5) directors, then one of the Icahn Suggested Nominees shall serve as the chairman of such committee; (c) upon execution of this Agreement and at all times thereafter, to include one of the Icahn Suggested Nominees on the Board’s Compensation Committee; (d) to include Xxxxx Xxxxx and Xxxxx Xxxxxxxxx or their respective Replacements (as hereinafter defined) (each, an “Icahn Suggested Nominee”, and collectively, the “Icahn Suggested Nominees”) in management’s and the Company’s slate of nominees for election as directors of the Company at the 2010 Annual Meeting; (ve) subject that to the extent either of Xxxxx Xxxxx or Xxxxx Xxxxxxxxx (Aor their respective Replacements) compliance with applicable New York Stock Exchange listing requirementsis unable to serve as a nominee for election as director or to serve as a director, beingfor any reason, as the Icahn Group shall have the right to submit the name of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual a replacement (the “NYSE ManualReplacement”) to the Company for its reasonable approval and (B) compliance with changes in applicable law after who shall serve as the date hereofnominee for election as director or serve as director. If the proposed Replacement is not approved by the Company, no later than October 8, 2012, and at all times thereafter provided an the Icahn Nominee is a member of Group shall have the Board, right to include an Icahn Nominee on submit another proposed Replacement to the Nominating and Corporate Governance Committee (or such other committee responsible Company for the organizational structure of the Board and its committees, including the search to identify a chief executive officer)reasonable approval. The Company hereby acknowledges and agrees that Icahn Group shall have the Icahn Nominee does not have right to continue submitting the name of a material relationship with proposed Replacement to the Company for its reasonable approval until the Company approves that such Replacement may serve as a nominee for election as director or to serve as a director whereupon such term person is used in Section 303A.02 of appointed as the NYSE Manual by virtue of the Icahn Group’s beneficial ownership of shares of Common Stock as of the date hereofReplacement; (vi) should any Icahn Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting), the Icahn Group, in the case of any Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person for each such Icahn Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn Group, in the case of the Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn Nominee shall be deemed to be the Icahn Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (viif) to use commercially reasonable best efforts to cause the election of the Icahn Nominee and the Mutual Designee Suggested Nominees to the Board at the 2013 2010 Annual Meeting (including recommending that the Company’s stockholders vote in favor of the election of the Icahn Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting Suggested Nominees and otherwise supporting such nominees them for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, to notify the Icahn Group prior to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before the advance notice deadlines set forth in Sections 8 and 9 of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to use commercially reasonable efforts to cause the election of any such nominees so nominated by the Company (including recommending that the Company’s stockholders vote in favor of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (ix) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, so long as an Icahn Nominee is a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (xg) no later than October 5, 2012, that the Company shall disband be relieved of its obligations set forth in this Section 1 in the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn Nominee is a member of the Board, to include an Icahn Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn Group, together with all controlled Affiliates of the members of event that the Icahn Group (such controlled Affiliates, collectively and individually, ceases to be the “Icahn Affiliates”), ceases collectively to beneficially own beneficial owner (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), ) of the lesser of at least 5,125,250 (x) 10% of the outstanding common stock, par value $0.01, of the Company (the “Common Stock”) and (y) 4,094,963 shares of Common Stock as of such date, (1) the Icahn Group shall cause the Icahn Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits and (2) the Company shall have no further obligations under this Section 2. In furtherance of this Section 2(b), any Icahn Nominee shall, prior to his or her appointment to the Board, and each member of the Icahn Group shall cause each such Icahn Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or natureStock.

Board and Committee Representation. (a) The Company agrees: (i) no later than October 8, 2012, Subject to appoint Xxxxxxx X. Xxxxxxxx (the designee of the Icahn Group) or his Replacement (as hereinafter defined) (Xx. Xxxxxxx X. Intrieri and his Replacement, the “Icahn Nominee”), as a Class I or Class II director in replacement of a director serving on the Board of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation in the form previously provided to the Icahn Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual Meeting”), and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn Group and the MHR Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn Group and the MHR Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later of December 15, 2012 and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn Group and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 and Section 3(d)), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn Nominee and the Mutual Designee in the Company’s slate of nominees for election as directors of the Company at the 2013 Annual Meeting; (v) subject to (A) compliance with applicable New York Stock Exchange listing requirements, being, as of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual (the “NYSE Manual”) and (B) compliance with changes in applicable law after the date hereof, no later than October 8, 2012, and at all times thereafter provided an Icahn Nominee is a member of the Board, to include an Icahn Nominee on the Nominating and Corporate Governance Committee (or such other committee responsible for the organizational structure of the Board and its committees, including the search to identify a chief executive officer). The Company hereby acknowledges and agrees that the Icahn Nominee does not have a material relationship with the Company as such term is used in Section 303A.02 of the NYSE Manual by virtue of the Icahn Group’s beneficial ownership of shares of Common Stock as of the date hereof; (vi) should any Icahn Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting6.3(d), the Icahn Group, in Shareholders shall have the case right to nominate a number of any Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person individuals for each such Icahn Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn Group, in the case of the Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn Nominee shall be deemed to be the Icahn Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (vii) to use commercially reasonable efforts to cause the election of the Icahn Nominee and the Mutual Designee to the Board at the 2013 Annual Meeting (including recommending that annual meetings of the Company’s stockholders shareholders so as to provide the Shareholders with that percentage representation on the Board (based on the size of the Board at the relevant time of determination) as set forth below, provided that each such nominee is then (i) qualified to serve as a member of the Board pursuant to the Company’s corporate governance policies, the requirements of the Principal Trading Market and applicable Law, in each case, as in effect at the applicable time and (ii) willing to serve as a member of the Board and to comply with the Company’s corporate governance policies, the requirements of the Principal Trading Market and applicable Law (including, without limitation, by filing any necessary or advisable reports with, or providing information to, the Commission). Subject to the foregoing but notwithstanding the immediately following sentence, any such nominee may be an Affiliate of a Shareholder (other than an officer or employee of a Shareholder or an Affiliate of a Shareholder). In addition, any such person shall not be eligible for nomination for election if he or she shall have been determined, by a majority of the Independent Directors, to be an employee, officer, director or Affiliate of, or a consultant, representative, independent contractor or agent for, directly or indirectly, a Person that is a competitor of the Company. Each Shareholder Designee shall serve on a different class of the Board. For purposes of this Section 6.3, the Shareholders shall have the right to nominate: three individuals for election to the Board for so long as their aggregate Percentage Ownership as of the record date for such meeting exceeds 19%; two individuals for so long as such percentage exceeds 14%, and one individual for so long as such percentage exceeds 10%; provided that if the Company and the Sellers’ Representative (as defined in the Purchase Agreement) mutually agree pursuant to the Purchase Agreement to set the size of the Board at nine directors, then the parties shall mutually agree on different Percentage Ownership percentages than those set forth in this sentence. For the avoidance of doubt, subject to the Shareholders’ rights pursuant to Section 6.3(a), the Company may set the size of the Board. (b) The Company shall use reasonable best efforts to cause each member of the Board to, subject to their fiduciary duties, recommend, in each proxy statement of the Company that sets forth nominees for election to the Board, that the shareholders of the Company vote in favor of the election of the Icahn Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting and otherwise supporting such nominees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, Board of any individuals designated for nomination by the Shareholders pursuant to notify this Article 6. If a designated individual nominated by the Icahn Group prior Shareholders is not elected to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before Board by the advance notice deadlines set forth in Sections 8 and 9 shareholders of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to shall use commercially reasonable best efforts to cause the election of any such nominees so nominated Board, subject to the directors’ fiduciary duties, to appoint a replacement designated by the Company (including recommending that the Company’s stockholders vote in favor Shareholders to serve instead of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate);individual. (ixc) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, For so long as an Icahn Nominee any Shareholder Designee is on the Board a Shareholder Designee shall have the right to be a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (x) no later than October 5, 2012, the Company shall disband the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn Nominee is a member of the Board, to include an Icahn Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn Group, together with all controlled Affiliates of the members of the Icahn Group (such controlled Affiliates, collectively and individually, the “Icahn Affiliates”), ceases collectively to beneficially own (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), at least 5,125,250 shares of Common Stock as of such date, (1) the Icahn Group shall cause the Icahn Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits is qualified to serve as a member of the committee pursuant to the requirements of the Principal Trading Market, applicable Law and the Company’s corporate governance policies, in each case, as in effect at the applicable time. (2d) In the event that, at any time, the number of Shareholder Designees exceeds the number of individuals that the Shareholders are entitled to nominate for election to the Board pursuant to Section 6.3(a), the Shareholders shall cause all Shareholder Designees in excess of such number to immediately resign from the Board (and all committees thereof) so that the number of Shareholder Designees does not exceed the number of individuals that the Shareholders are entitled to nominate for election to the Board pursuant to Section 6.3(a). In the event that, at any time, the Percentage Ownership of the Shareholders is less than 10%, the Shareholders shall cause all Shareholder Designees to immediately resign from the Board (and from all committees thereof) and the Shareholders shall have no right to nominate under this Agreement any representative for election to the Board (and the Company shall have no further obligations under this Section 2. In furtherance obligation with respect to any representative of this Section 2(b), any Icahn Nominee shall, prior to his or her appointment the Shareholders being nominated to the Board). The Company acknowledges that a Shareholder Designee is eligible to be elected as lead independent director by the Independent Directors, provided that he or she satisfies the applicable requirements of such position of Law, and each member of the Icahn Group shall cause each such Icahn Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or naturePrincipal Trading Market.

Board and Committee Representation. (a) The Company agrees: (i) no later than October 8, 2012, to appoint Xxxxxxx Xxxx X. Xxxxxxxx (the designee of the Icahn MHR Group) or his Replacement (as hereinafter defined) (Xx. Xxxxxxx X. Intrieri Xxxxxxxx and his Replacement, the “Icahn MHR Nominee”), as a Class I or Class II director in replacement of a director serving on the Board of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation documentation, in the form previously provided to the Icahn MHR Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual Meeting”), and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn MHR Group and the MHR Icahn Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Icahn Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Icahn Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn MHR Group and the MHR Icahn Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn MHR Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn MHR Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later of December 15, 2012 and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn MHR Group and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn MHR Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 a provision relating to the termination of that certain agreement between the Company and Section 3(d)Other Shareholders, dated November 14, 2011 and the withdrawal of the Other Shareholder’s books and records demand and related matters), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn MHR Nominee and the Mutual Designee in the Company’s slate of nominees for election as directors of the Company at the 2013 Annual Meeting; (v) subject to (A) compliance with applicable New York Stock Exchange listing requirements, being, as of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual (the “NYSE Manual”) and (B) compliance with changes in applicable law after the date hereof, no later than October 8, 2012, and at all times thereafter provided an Icahn MHR Nominee is a member of the Board, to include an Icahn MHR Nominee on the Nominating and Corporate Governance Committee (or such other committee responsible for the organizational structure of the Board and its committees, including the search to identify a chief executive officer). The Company hereby acknowledges and agrees that the Icahn MHR Nominee does not have a material relationship with the Company as such term is used in Section 303A.02 of the NYSE Manual by virtue of the Icahn MHR Group’s beneficial ownership of shares of Common Stock as of the date hereof; (vi) should any Icahn MHR Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting), the Icahn MHR Group, in the case of any Icahn MHR Nominee, and the Icahn MHR Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person for each such Icahn MHR Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn MHR Group, in the case of the Icahn MHR Nominee, and the Icahn MHR Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn MHR Nominee shall be deemed to be the Icahn MHR Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (vii) to use commercially reasonable efforts to cause the election of the Icahn MHR Nominee and the Mutual Designee to the Board at the 2013 Annual Meeting (including recommending that the Company’s stockholders vote in favor of the election of the Icahn MHR Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting and otherwise supporting such nominees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, to notify the Icahn MHR Group prior to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before the advance notice deadlines set forth in Sections 8 and 9 of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn MHR Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to use commercially reasonable efforts to cause the election of any such nominees so nominated by the Company (including recommending that the Company’s stockholders vote in favor of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (ix) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, so long as an Icahn MHR Nominee is a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (x) no later than October 5, 2012, the Company shall disband the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn MHR Nominee is a member of the Board, to include an Icahn MHR Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn MHR Group, together with all controlled Affiliates of the members of the Icahn MHR Group (such controlled Affiliates, collectively and individually, the “Icahn MHR Affiliates”), ceases collectively to beneficially own (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), at least 5,125,250 5,137,500 shares of Common Stock as of such date, (1) the Icahn MHR Group shall cause the Icahn MHR Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits and (2) the Company shall have no further obligations under this Section 2. In furtherance of this Section 2(b), any Icahn MHR Nominee shall, prior to his or her appointment to the Board, and each member of the Icahn MHR Group shall cause each such Icahn MHR Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.

Board and Committee Representation. (a) The Company agrees: (i) no later than October 8, 2012, Subject to appoint Xxxxxxx X. Xxxxxxxx (the designee of the Icahn Group) or his Replacement (as hereinafter defined) (Xx. Xxxxxxx X. Intrieri and his Replacement, the “Icahn Nominee”), as a Class I or Class II director in replacement of a director serving on the Board of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation in the form previously provided to the Icahn Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual Meeting”), and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn Group and the MHR Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn Group and the MHR Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later of December 15, 2012 and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn Group and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 and Section 3(d)), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn Nominee and the Mutual Designee in the Company’s slate of nominees for election as directors of the Company at the 2013 Annual Meeting; (v) subject to (A) compliance with applicable New York Stock Exchange listing requirements, being, as of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual (the “NYSE Manual”) and (B) compliance with changes in applicable law after the date hereof, no later than October 8, 2012, and at all times thereafter provided an Icahn Nominee is a member of the Board, to include an Icahn Nominee on the Nominating and Corporate Governance Committee (or such other committee responsible for the organizational structure of the Board and its committees, including the search to identify a chief executive officer). The Company hereby acknowledges and agrees that the Icahn Nominee does not have a material relationship with the Company as such term is used in Section 303A.02 of the NYSE Manual by virtue of the Icahn Group’s beneficial ownership of shares of Common Stock as of the date hereof; (vi) should any Icahn Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting6.3(d), the Icahn Group, in Shareholders shall have the case right to nominate a number of any Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person individuals for each such Icahn Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn Group, in the case of the Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn Nominee shall be deemed to be the Icahn Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (vii) to use commercially reasonable efforts to cause the election of the Icahn Nominee and the Mutual Designee to the Board at the 2013 Annual Meeting (including recommending that annual meetings of the Company’s stockholders shareholders so as to provide the Shareholders with that percentage representation on the Board (based on the size of the Board at the relevant time of determination) as set forth below, provided that each such nominee is then (i) qualified to serve as a member of the Board pursuant to the Company’s corporate governance policies, the requirements of the Principal Trading Market and applicable Law, in each case, as in effect at the applicable time and (ii) willing to serve as a member of the Board and to comply with the Company’s corporate governance policies, the requirements of the Principal Trading Market and applicable Law (including, without limitation, by filing any necessary or advisable reports with, or providing information to, the Commission). Subject to the foregoing but notwithstanding the immediately following sentence, any such nominee may be an Affiliate of a Shareholder (other than an officer or employee of a Shareholder or an Affiliate of a Shareholder). In addition, any such person shall not be eligible for nomination for election if he or she shall have been determined, by a majority of the Independent Directors, to be an employee, officer, director or Affiliate of, or a consultant, representative, independent contractor or agent for, directly or indirectly, a Person that is a competitor of the Company. Each Shareholder Designee shall serve on a different class of the Board. For purposes of this Section 6.3, the Shareholders shall have the right to nominate: three individuals for election to the Board for so long as their aggregate Percentage Ownership as of the record date for such meeting exceeds 19%; two individuals for so long as such percentage exceeds 14%, and one individual for so long as such percentage exceeds 10%; provided that if the Company and the Sellers’ Representative (as defined in the Purchase Agreement) mutually agree pursuant to the Purchase Agreement to set the size of the Board at nine directors, then the parties shall mutually agree on different Percentage Ownership percentages than those set forth in this sentence. For the avoidance of doubt, subject to the Shareholders’ rights pursuant to Section 6.3(a), the Company may set the size of the Board. 2 NTD: Conforming changes to be made if number of directors changes pursuant to the mutual agreement of Buyer and the Sellers’ Representative. (b) The Company shall use reasonable best efforts to cause each member of the Board to, subject to their fiduciary duties, recommend, in each proxy statement of the Company that sets forth nominees for election to the Board, that the shareholders of the Company vote in favor of the election of the Icahn Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting and otherwise supporting such nominees for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, Board of any individuals designated for nomination by the Shareholders pursuant to notify this Article 6. If a designated individual nominated by the Icahn Group prior Shareholders is not elected to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before Board by the advance notice deadlines set forth in Sections 8 and 9 shareholders of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to shall use commercially reasonable best efforts to cause the election of any such nominees so nominated Board, subject to the directors’ fiduciary duties, to appoint a replacement designated by the Company (including recommending that the Company’s stockholders vote in favor Shareholders to serve instead of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate);individual. (ixc) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, For so long as an Icahn Nominee any Shareholder Designee is on the Board a Shareholder Designee shall have the right to be a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (x) no later than October 5, 2012, the Company shall disband the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn Nominee is a member of the Board, to include an Icahn Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn Group, together with all controlled Affiliates of the members of the Icahn Group (such controlled Affiliates, collectively and individually, the “Icahn Affiliates”), ceases collectively to beneficially own (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), at least 5,125,250 shares of Common Stock as of such date, (1) the Icahn Group shall cause the Icahn Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits is qualified to serve as a member of the committee pursuant to the requirements of the Principal Trading Market, applicable Law and the Company’s corporate governance policies, in each case, as in effect at the applicable time. (2d) In the event that, at any time, the number of Shareholder Designees exceeds the number of individuals that the Shareholders are entitled to nominate for election to the Board pursuant to Section 6.3(a), the Shareholders shall cause all Shareholder Designees in excess of such number to immediately resign from the Board (and all committees thereof) so that the number of Shareholder Designees does not exceed the number of individuals that the Shareholders are entitled to nominate for election to the Board pursuant to Section 6.3(a). In the event that, at any time, the Percentage Ownership of the Shareholders is less than 10%, the Shareholders shall cause all Shareholder Designees to immediately resign from the Board (and from all committees thereof) and the Shareholders shall have no right to nominate under this Agreement any representative for election to the Board (and the Company shall have no further obligations under this Section 2. In furtherance obligation with respect to any representative of this Section 2(b), any Icahn Nominee shall, prior to his or her appointment the Shareholders being nominated to the Board). The Company acknowledges that a Shareholder Designee is eligible to be elected as lead independent director by the Independent Directors, provided that he or she satisfies the applicable requirements of such position of Law, and each member of the Icahn Group shall cause each such Icahn Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or naturePrincipal Trading Market.

Board and Committee Representation. (a) The Company agrees: (a) (i) no later than October 8, 2012upon execution of this Agreement, to appoint Xxxxxxx X. Xxxxxxxx (Brett Icahn and David Schechter to the designee board of directors of the Icahn GroupXxxxxxx (xxe "Boxxx") or his Replacement xxx (as hereinafter definedxx) (Xx. Xxxxxxx X. Intrieri and his Replacement, the “Icahn Nominee”), as a Class I or Class II director in replacement of a director serving on the Board of the Company on the date hereof (any such director, an “Incumbent Director”), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Company’s standard director nomination documentation in the form previously provided to the Icahn Group (which documentation included such nominee’s consent to be named as a nominee in the Company’s proxy statement for the Company’s 2013 annual meeting of stockholders, which shall not be held later than February 28, 2013 (the “2013 Annual Meeting”), and to serve as a director if so elected (collectively, the “Nomination Documents”)); (ii) Reserved (iii) to appoint an additional person approved by the Company, such approval not to be unreasonably withheld or delayed (any such person, an “Acceptable Person”) (or such person’s Replacement) mutually designated by the Icahn Group and the MHR Group (as defined in that certain Settlement Agreement by and among the Company and the members of the MHR Group signatory thereto, dated as of October 5, 2012 (the “Other Shareholder Agreement”; such MHR Group members entering into such Settlement Agreement, the “Other Shareholder”, and the person so mutually designated by the Icahn Group and the MHR Group, the “Mutual Designee”) to the Board, as a Class I or Class II director in replacement of an Incumbent Director (and, if such proposed designee is not an Acceptable Person, the Icahn Group and the Other Shareholder shall be entitled to continue designating a potential Mutual Designee until such proposed designee is an Acceptable Person), subject, if not previously executed, to such nominee’s execution and delivery to the Company of the Nomination Documents and the resignation referred to in Section 2(c); provided, that if, for any reason, the Icahn Group and the Other Shareholder fail to provide the Company with written notice of the selection of any designee prior to the later announcement of December 15, 2012 and twenty (20) days after notice from the Company that a particular designee is not an Acceptable Person, then the right of the Icahn Group management's and the Other Shareholder to designate the Mutual Designee shall immediately and permanently terminate. The Company agrees that any appointment of a Mutual Designee shall occur within three (3) business days after receipt of written notice by the Company from the Icahn Group and the Other Shareholder of such selection of an Acceptable Person as described herein and the other documents described in this Section 2(a)(iii). The Company represents that the Other Shareholder Agreement contains the same terms and conditions as this Agreement (other than Section 1 and Section 3(d)), including the Confidentiality Agreement (as hereinafter defined), but with all references to the Icahn Group, the Icahn Affiliates and the Icahn Nominee under this Agreement being changed to the Other Shareholder, the Other Shareholder Affiliates and the Other Shareholder Nominee, as applicable, and such other modifications as are necessary or appropriate to reflect the Other Shareholder as a party; (iv) to include the Icahn Nominee and the Mutual Designee in the Company’s 's slate of nominees for election as directors of the Company at the 2013 Company's 2010 annual meeting of stockholders (the "2010 Annual Meeting") (A) to notify the Icahn Group in writing that two incumbent directors of the Board will not stand for re-election at the 2010 Annual Meeting and (B) to reduce the size of the Board to ten (10) directors; (b) upon execution of this Agreement, if it does not already exist, to create a committee of the Board for the purpose of considering strategic or other significant transactions (the "Strategic Transaction Committee"), and at all times, to include the two Icahn Suggested Nominees (as defined below) on the Strategic Transaction Committee (and such other committee formed, from time to time, for the purpose of considering strategic or other significant transactions), which such committee may be composed of either four (4) or five (5) directors; provided, however, that if it is composed of five (5) directors, then one of the Icahn Suggested Nominees shall serve as the chairman of such committee; (c) upon execution of this Agreement and at all times thereafter, to include one of the Icahn Suggested Nominees on the Board's Compensation Committee; (d) to include Brett Icahn and David Schechter or their respective Replacemxxxx (xx xereinafxxx xxxxxxx) (xxch, an "Icahn Suggested Nominee", and collectively, the "Icahn Suggested Nominees") in management's and the Company's slate of nominees for election as directors of the Company at the 2010 Annual Meeting; (ve) subject that to the extent either of Brett Icahn or David Schechter (Aor their respective Replacements) compliance with applicable New York Stock Exchange listing requirementsxx xxxxxe tx xxxxx xx x nominee for election as director or to serve as a director, beingfor any reason, as the Icahn Group shall have the right to submit the name of the date hereof, those set forth in Sections 303A.02 and 303A.04 of the New York Stock Exchange listed company manual a replacement (the “NYSE Manual”"Replacement") to the Company for its reasonable approval and (B) compliance with changes in applicable law after who shall serve as the date hereofnominee for election as director or serve as director. If the proposed Replacement is not approved by the Company, no later than October 8, 2012, and at all times thereafter provided an the Icahn Nominee is a member of Group shall have the Board, right to include an Icahn Nominee on submit another proposed Replacement to the Nominating and Corporate Governance Committee (or such other committee responsible Company for the organizational structure of the Board and its committees, including the search to identify a chief executive officer)reasonable approval. The Company hereby acknowledges and agrees that Icahn Group shall have the Icahn Nominee does not have right to continue submitting the name of a material relationship with proposed Replacement to the Company for its reasonable approval until the Company approves that such Replacement may serve as a nominee for election as director or to serve as a director whereupon such term person is used in Section 303A.02 of appointed as the NYSE Manual by virtue of the Icahn Group’s beneficial ownership of shares of Common Stock as of the date hereofReplacement; (vi) should any Icahn Nominee or the Mutual Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or to serve on, the Board (other than as a result of not being nominated by the Company for an Annual Meeting subsequent to the 2013 Annual Meeting), the Icahn Group, in the case of any Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to designate a replacement that is an Acceptable Person for each such Icahn Nominee or Mutual Designee (and if such proposed designee is not an Acceptable Person, the Icahn Group, in the case of the Icahn Nominee, and the Icahn Group and the Other Shareholder, in the case of the Mutual Designee, shall be entitled to continue designating a replacement until such proposed designee is an Acceptable Person) (a “Replacement”); and the Company shall take all necessary action within its control necessary to satisfy the requirements under Section 2(a) as promptly as practicable. Any such Replacement who becomes a Board member in replacement of an Icahn Nominee shall be deemed to be the Icahn Nominee for all purposes under this Agreement, and any such Replacement who becomes a Board member in replacement of the Mutual Designee shall be deemed to be the Mutual Designee for all purposes under this Agreement, and in each case, prior to his or her appointment to the Board, shall be required to execute the Nomination Documents and an irrevocable resignation as director in the form attached hereto as Exhibit B or Exhibit C (as applicable) and deliver it to the Company; (viif) to use commercially reasonable best efforts to cause the election of the Icahn Nominee and the Mutual Designee Suggested Nominees to the Board at the 2013 2010 Annual Meeting (including recommending that the Company’s 's stockholders vote in favor of the election of the Icahn Nominee and the Mutual Designee, including such nominees in the Company’s proxy statement for the 2013 Annual Meeting Suggested Nominees and otherwise supporting such nominees them for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (viii) for any Annual Meeting subsequent to the 2013 Annual Meeting, to notify the Icahn Group prior to the August 31st immediately preceding such Annual Meeting (which such date of notification shall in no event be less than 20 calendar days before the advance notice deadlines set forth in Sections 8 and 9 of the Company’s Amended and Restated Bylaws, as such date may change from time to time) whether any Icahn Nominee or the Mutual Designee will be nominated by the Company for election as a director at such Annual Meeting and to use commercially reasonable efforts to cause the election of any such nominees so nominated by the Company (including recommending that the Company’s stockholders vote in favor of the election of any such nominees, including such nominees in the Company’s proxy statement for such Annual Meeting and otherwise supporting any such nominee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate); (ix) that as of the date hereof, the Company represents and warrants that the Board is composed of ten (10) directors and that there are no vacancies on the Board. The Company agrees that, from and after the date hereof, so long as an Icahn Nominee is a member of the Board, the Company shall not take any action, or support any person who is seeking, to increase the size of the Board above ten (10) directors, each having one vote on all matters; and (xg) no later than October 5, 2012, that the Company shall disband be relieved of its obligations set forth in this Section 1 in the Executive Committee of the Board and amend its by-laws and the applicable corporate governance guidelines of the Company to eliminate the Executive Committee of the Board; and if the Company subsequently creates an executive committee and at such time an Icahn Nominee is a member of the Board, to include an Icahn Nominee on such executive committee. (b) Notwithstanding the foregoing, if at any time after the date hereof, the Icahn Group, together with all controlled Affiliates of the members of event that the Icahn Group (such controlled Affiliates, collectively and individually, ceases to be the “Icahn Affiliates”), ceases collectively to beneficially own beneficial owner (as defined in Rule 13d-3 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “"Exchange Act”")), ) of the lesser of at least 5,125,250 (x) 10% of the outstanding common stock, par value $0.01, of the Company (the "Common Stock") and (y) 4,094,963 shares of Common Stock as of such date, (1) the Icahn Group shall cause the Icahn Nominee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits and (2) the Company shall have no further obligations under this Section 2. In furtherance of this Section 2(b), any Icahn Nominee shall, prior to his or her appointment to the Board, and each member of the Icahn Group shall cause each such Icahn Nominee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit B and deliver it to the Company. For purposes of this Agreement: the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or natureStock.