Common use of Board of Directors Matters Clause in Contracts

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteria. (b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.

Board of Directors Matters. (a) The Investors and On or before the Company hereby acknowledge and agree that: (i) Effective November 1Closing Date, 2010, (A) the Company shall expand take such action as is necessary to cause the size of its Board of Directors to consist of seven directors, of which four shall be designees of Investor, one shall be a designee of Axess, one shall be independent of Investor and Axess and one shall be the Chief Executive Officer of the Company; each of such individuals shall be designated in writing to the Company within three business days prior to the Closing and their election to the Board of Directors to nine directorsbe effective as of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Threshold Amount, the Company will support the nomination of, and the Company's nominating committee (B) Xxxxxxx X. Xxxxxx (the “Investor Director”or other board committee exercising a similar function) shall be appointed recommend to the Board of Directors, and the Board of Directors will use its good faith efforts to ensure, that the slate of nominees recommended by the Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to the number of directors that would constitute a majority of such board following such election. In the event any designee of Investor hereunder shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby with a person designated by Investor. Any nominee or designee to the Board of Directors of Investor or the Company shall be reasonably satisfactory to the other party, and each party shall afford the other a reasonable opportunity to review and comment upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to the Board of Directors. During such time as Investor is entitled to have designees on the Board of Directors, the Investor shall also be entitled to have a designee serve on each committee of the Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in Class III connection with any transaction or potential transaction involving the Company and (C) Xxxxxx X. X’Xxxxxxx Investor, then such designee shall not be required to be appointed to serve such committee. As used above, "Initial Threshold Amount" means the aggregate of the number of Investor Shares and the number of Investor Warrant Shares issuable under the Investor A Warrant (as a director if issued on the Board in Class IIClosing Date). (iib) The Nominating During such time after the Closing as Axess and Corporate Governance Committee its affiliates shall continue to own in the aggregate not less than 3,638,000 of the Axess Shares (including as owned for such purpose, the Axess Reissue Shares and excluding for the avoidance of doubt any shares issued on conversion of the Preferred Stock), the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a duly constituted subcommittee thereofsimilar function) (the “Nominating Committee”) of shall recommend to the Board will recommend for nomination of Directors, and the Board of Directors will nominate Xxxxxx X. X’Xxxxxxx and two use its good faith efforts to ensure, that the slate of nominees recommended by the directors currently serving in Class II (the “2010 Nominees”) Board of Directors to stockholders for election as directors at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election each annual meeting of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance commencing with the provisions first annual meeting of this Section 1(a)(iii) shall be referred to as stockholders after the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteria. (b) Upon execution date of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.includes one designee of

Board of Directors Matters. (a) The Investors Investor and the Company hereby acknowledge and agree that: (i) (a) Effective November 1on April 2, 2010, (A) the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx X. Xxxxxx 2013 (the “Investor DirectorAppointment Date”) ), Xx. Xxxxxxxx shall be appointed to serve as a director on the Board in Class III I (i.e., with a term expiring at the 2013 Annual Meeting), (b) the Nominations and Corporate Governance Committee of the Board (the “Nominations Committee”) will recommend for nomination and the Board will nominate Xx. Xxxxxxxx for election as a director in Class I at the 2013 Annual Meeting and solicit proxies from the Company’s stockholders for the election of Xx. Xxxxxxxx at the 2013 Annual Meeting, and otherwise support Xx. Xxxxxxxx for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees and (Cc) Xxxxxx X. X’Xxxxxxx Xx. Xxxxx shall (x) be entitled to attend Board meetings occurring prior to the date of his appointment to the Board as an observer, provided that the Board may excuse Xx. Xxxxx from any portion of any Board meeting where the Board reasonably determines that it would be in the Company’s best interests to do so, for privilege, conflict of interest or other reasons and (y) be appointed to serve as a director on the Board in Class IIIII (i.e., with a term expiring at the 2014 annual general meeting of stockholders) promptly following the 2013 Annual Meeting. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination Investor and the Board will nominate Xxxxxx X. X’Xxxxxxx Investor Directors have provided to the Company information required to be customarily disclosed with respect to directors, candidates for directors and two of their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations in form and substance substantially similar to the directors currently serving questionnaire provided in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II Exhibit B, and will recommend a vote for provide such other information as reasonably requested by the 2010 Nominees Company from time to time with respect to the Investor and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual MeetingInvestor Directors. (iii) The Company agrees that if To the extent an Investor Director resigns for any reason (other than pursuant to Section 4 6 hereof), is unable to serve or is otherwise unable deemed ineligible to serve as a director or is removed as a director by the stockholders Investor Director prior to the expiration of the CompanyStandstill Period (as defined below), the Investors Investor shall be entitled to designate, for consideration by the Nominating Nominations Committee as a replacement for the an Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, standards and (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed is qualified to serve as a director to be nominated) as a director by under the Investorslaws of Bermuda. The Nominating Committee, consistent with its fiduciary duties, Nominations Committee shall consider such candidate within ten (10) business days after a completed customary director director’s and officer officer’s questionnaire and background check has been received by the Nominating Nominations Committee, and subject to the Nominations Committee’s approval, which approval shall not be unreasonably withheld and shall be consistent with its fiduciary duties, the Board shall appoint such candidate approved by the Nominating Nominations Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the an “Investor Director” for the purposes of this AgreementAgreement and shall execute and deliver a joinder to this Agreement in such capacity). In the event the Nominating Nominations Committee shall decline to recommend any particular candidate designated by the InvestorsInvestor, the Investors may Investor shall have the right to propose a one or more replacement designeedesignees, subject to the above criteria. (biv) Upon execution Each of Xx. Xxxxxxxx and Xx. Xxxxx agrees to act as an Investor Director on the terms and conditions of this AgreementAgreement and to serve as a director on the Board, and Xx. Xxxxxxxx further consents to be named as a nominee in the Investors hereby irrevocably withdraw Company’s proxy statement for the Nomination Letter2013 Annual Meeting. Xx.

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (ia) Effective November 1as of the certification of the vote at the 2014 Annual Meeting, 2010but no later than three (3) business days thereafter (the date of such certification, (A) the “Effective Time”), the Company shall expand the size of the Company’s Board of Directors (the “Board”) to nine directors. The Company agrees that it shall not increase the size of the Board above ten or reduce it below nine directors at any time prior to the date of the 2015 Annual Meeting. If the size of the Board is increased to ten directors, (B) Xxxxxxx X. Xxxxxx (then the “Investor Director”) vacancy shall be appointed filled by Xxxxxxxxx Xxxxxx or, if he is unavailable to serve, such other person as may be designated by the Board, with the consent of the Investors, not to be unreasonably withheld. (b) To enable the even distribution of directors among the three classes of directors constituting the Board, as of the Effective Time a director to be designated by the Board and Xxxx Xxxxxx shall each resign his position as a director in Class II. Immediately thereafter, pursuant to Article III, Section 13 of the Company’s Amended and Restated Bylaws, the Board shall reappoint Xxxx Xxxxxx to serve as a director on the Board in Class III I and (C) Xxxxxx X. X’Xxxxxxx shall be appointed such designated director to serve as a director on the Board in Class IIIII. (iic) The Immediately following the actions set forth in Section 1(b), the Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will shall recommend for nomination appointment and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of shall appoint (i) Xxxxx Xxxxxxxx to serve as a director on the directors currently serving Board in Class II (the “2010 NomineesXxxxx Street Director”) for election at the 2010 Annual Meeting and (ii) Xxxxxx Xxxxxx to serve as a director on the Board in Class II and will recommend a vote for (the 2010 Nominees and solicit proxies from “Additional Director” and, together with the Company’s stockholders for Xxxxx Street Director, collectively, the election of the 2010 Nominees at the 2010 Annual Meeting“Investor Directors” and, each individually, an “Investor Director”). (iiid) The Company agrees that if the either Investor Director resigns for any reason other than pursuant to Section 4 1(d) or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company prior to the Company’s 2015 annual meeting of stockholders (the “2015 Annual Meeting”), the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement substitute for the such Investor Director, an individual who (Ai) qualifies as an “independentindependent director” under for purposes of the listing qualification rules of the Nasdaq corporate governance standards, (B) has relevant business and financial experienceStock Market, and (C) ii), in the case of the Additional Director, has not been previously nominated (or noticed as a director to be nominated) as a director by relevant operating business experience in the Investorstrucking industry. The Nominating Committee, in good faith and consistent with its fiduciary duties, shall consider such candidate within ten five (105) business days after a completed customary director and officer questionnaire D&O Questionnaire has been received by the Nominating Committee, and subject to the Nominating Committee’s approval, which approval shall not be unreasonably withheld, the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement)days. In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a one or more replacement designeedesignees, subject to the above criteria. (be) Upon execution As a condition to commencement of a term as a director on the Board (or nomination therefor), each Investor Director shall provide to the Board an irrevocable letter of resignation, effective upon the earliest of (i) (A) in the case of the Xxxxx Street Director, such date as the aggregate beneficial ownership of the Common Stock by Xxxxx Street (net of any Short Interests (as defined below)), shall be less than 50% of the aggregate beneficial ownership of the Common Stock by Xxxxx Street, as a whole, on the date hereof or (B) in the case of the Additional Director, such date as the aggregate beneficial ownership of the Common Stock by Stone House (net of any Short Interests (as defined below)), shall be less than 50% of the aggregate beneficial ownership of the Common Stock by Stone House, as a whole, on the date hereof, and (ii) fifteen (15) days after final judicial determination of a material breach by any Investor or Investor Director of this Agreement. Each of Xxxxx Street and Stone House, as applicable, shall provide notice to the Company within two (2) business days if the aggregate beneficial ownership of the Common Stock by either Xxxxx Street or Stone House (net of any Short Interests) shall be less than the level described in clause (i) above. In addition, the Investors hereby irrevocably withdraw agree to certify to the Nomination LetterCompany as to the number of shares of Common Stock beneficially owned by the Investors (net of any Short Interests) at such times as reasonably requested by the Company. (f) The Company agrees that it shall not reduce the size of the Board or reconstitute the classes on which the directors serve so as to cause less than three directors to be up for election at the 2015 Annual Meeting and the Parties agree that nothing in this Agreement shall restrict the ability of the Investors to seek the election of up to three directors at the 2015 Annual Meeting. (g) At all times while serving as a member of the Board, the Investor Directors shall comply with all policies, procedures, processes, codes, rules, standards and legally permissible guidelines applicable to all of the Company’s directors. (h) The Company agrees that at least one of the Investor Directors will be offered membership to each committee of the Board, other than the Audit Committee, whether now existing or herewith created. Without limiting the Investors’ right in the preceding sentence, the Investors shall have discretion, with the consent of the Company, which shall not be unreasonably withheld, and limited to such Investor Director’s eligibility to serve in such capacity pursuant to applicable law and the rules of the Nasdaq Stock Market, to determine which Investor Director shall sit on which committee of the Board.

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (i) Effective November 1Immediately after execution of this Agreement, 2010, (A) the Company shall expand Board will cause the size of the Board to nine directors, (B) Xxxxxxx be increased from five to seven directors and will appoint Xxxxx X. Xxxxxx and Xxxxxx X. XxXxxxxx (the “Investor DirectorDirectors”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class IIfill such newly created vacancies. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate the Investor Directors and General Xxxx X. Xxxxxx, Xxxxxx X. X’Xxxxxxx Xxxxx, Xxxxx X. Xxxxxx and two of the directors currently serving in Class II Xxxxxxx X. Xxxxxx III (collectively, the “2010 Continuing Directors” and, together with the Investor Directors, the “2016 Nominees”) for election at the 2010 2016 Annual Meeting to serve in Class II and will recommend a vote for the 2010 2016 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 2016 Nominees at the 2010 2016 Annual Meeting. The Company agrees that it shall hold the 2016 Annual Meeting no later than July 31, 2016. (iii) As a condition to the Investor Directors’ appointment to the Board and nomination as a director of the Company at the 2016 Annual Meeting, the Investors agree to provide to the Company information required to be or customarily disclosed for directors, candidates for directors and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and such other information as reasonably requested by the Company from time to time with respect to the Investors and the Investor Directors, in form and substance substantially similar to the questionnaires that have been provided to the Company’s current directors. (iv) Immediately following the execution of this Agreement, the Board and all applicable committees of the Board shall take all necessary actions to appoint at least one of the Investor Directors as a member of each committee of the Board. The Company further agrees that if at least one of the Investor Directors will be appointed to any new committee of the Board that may be established during the Standstill Period (as defined below) provided that at least one Investor Director is serving on the Board at such time and is qualified to serve on any such newly established committee of the Board. (v) To the extent an Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, in each case, during the Standstill Period, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the such Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed is qualified to serve as a director to be nominated) as a director by under the InvestorsDelaware General Corporation Law (the “DGCL”). The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate if approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii1(a)(iv) shall be referred to as the an “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a one or more replacement designeedesignees, subject to the above criteria. (vi) During the period commencing with the date of the 2016 Annual Meeting through the expiration or termination of the Standstill Period (as defined below), the Board and all applicable committees of the Board shall take all necessary actions (including with respect to nominations for election at the 2016 Annual Meeting) so that the size of the Board is no more than six (6) directors, unless the Investors consent in writing to enlarging the Board. (b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter. Upon execution of this Agreement, the Company will promptly pay to the Investors their out-of-pocket legal and advisory fees in connection with the Nomination Letter and this Agreement, invoices for which have been previously provided to the Company. For the avoidance of doubt, such legal and advisory fees shall not exceed $130,000.

Board of Directors Matters. (a) The Investors Investor and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the The Company shall expand include in the size slate of nominees recommended by the Board to nine directors, (B) Xxxxxxx X. Xxxxxx for election as directors at the 2017 Annual Meeting an individual designated by the Investor (the “Investor DirectorDesignee”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, is qualified to serve as a director under the laws of Delaware and (C) has not been previously nominated (or noticed as a director to be nominated) as a director is approved by the Investors. The Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”), consistent with subject to its fiduciary duties, within ten (10) business days after a completed customary director’s and officer’s questionnaire and background check has been received by the Nominating Committee, which approval shall not be unreasonably withheld. In the event the Nominating Committee shall decline to approve any particular individual designated by the Investor, the Investor shall have the right to propose one or more other individuals, subject to the above criteria. (ii) The Investor will ensure that the Investor Designee provides to the Company information required to be customarily disclosed with respect to directors, candidates for directors and their affiliates in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations and will provide such other information as reasonably requested by the Company from time to time with respect to the Investor and the Investor Designee. (iii) To the extent an Investor Designee resigns for any reason, is unable to serve or is otherwise deemed ineligible to serve as the Investor Designee for any reason, or otherwise ceases to be a member of the Board for any reason, prior to the expiration of the initial term of the Investor Designee, the Investor shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Designee, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards and (B) is qualified to serve as a director under the laws of Delaware. The Nominating Committee shall consider such candidate within ten (10) business days after a completed customary director director’s and officer officer’s questionnaire and background check has been received by the Nominating Committee, and subject to the Nominating Committee’s approval, which approval shall not be unreasonably withheld and shall be subject to its fiduciary duties, the Board shall appoint to the Board such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement)days. In the event the Nominating Committee shall decline to recommend any particular candidate designated by the InvestorsInvestor, the Investors may Investor shall have the right to propose a one or more replacement designeedesignees, subject to the above criteria. (biv) Upon execution of Notwithstanding anything to the contrary in this Agreement, the Investors hereby irrevocably withdraw Investor agrees that it will not, directly or indirectly, seek to elect more than one (1) director to the Nomination LetterBoard at the 2017 Annual Meeting or otherwise prior to the date that is thirty (30) calendar days prior to the deadline established pursuant to the Company’s bylaws for the submission of stockholder nominations for the Company’s 2018 annual meeting of stockholders.

Board of Directors Matters. (a) The Investors KKR shall have the right to nominate, pursuant to the terms and subject to the conditions of this Section 5.5, one nominee to the Company’s Board of Directors (the “Board Designee”) for consideration by the Board of Directors (and the Nominating and Governance Committee of the Board of Directors), such consideration to include whether such nominee (i) is qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements and (ii) meets the independence requirements with respect to the NYSE Listed Company Manual or any successor thereto; provided that nothing contained herein shall require the Board of Directors to appoint such Board Designee to the Board of Directors. As of the date hereof, KKR has designated Bxxxx Xxxxxxx as a nominee for the Board Designee, and the Company hereby acknowledge and agree that: acknowledges that said Board Designee meets the requirements set forth in clauses (i) Effective November 1and (ii) in the previous sentence of this Section 5.5(a). KKR will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, 2010, to consent to such reference and background checks or other investigations and to provide such information (Aincluding information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Company shall expand Board of Directors or its Nominating and Governance Committee may reasonably request. Provided that the size Board Designee is then acceptable to the Board of Directors (including the Nominating and Governance Committee of the Board to nine directorsof Directors) in its good faith discretion, (B) Xxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors Nominating and Governance Committee shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committeeconsider, consistent with its fiduciary dutiescharter, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and nomination of the Board shall appoint such candidate approved by Designee for election or re-election, as the Nominating Committee (whose approval case may be, as a director so long as the KKR Purchaser and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with its Affiliates, collectively, then Own at least $200 million principal amount of the provisions of this Section 1(a)(iii) Notes. It shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject condition to the above criterianomination for election or re-election of any Board Designee that such Board Designee tender a conditional resignation letter prior to his or her nomination for election or re-election to the Board of Directors providing such Board Designee’s irrevocable offer of resignation from the Board of Directors effective upon the Designee Termination Date. (b) Upon execution The Board Designee (or Board Observer) shall be subject to the policies and requirements of the Company and its Board of Directors, including the Corporate Governance Guidelines of the Board of Directors, the Company’s Code of Ethics for Senior Executive and Financial Officers and Directors and the Code of Business Conduct for Employees in a manner consistent with the application of such policies and requirements to other members of the Board of Directors. To the same extent it indemnifies and provides insurance for the members of the Board of Directors pursuant to its organizational documents, applicable Law or otherwise, the Company shall indemnify the Board Designee (or Board Observer) and provide the Board Designee (or Board Observer) with director and officer insurance. (c) All obligations of the Company pursuant to this Section 5.5 (other than paragraph (b) of this AgreementSection 5.5) shall terminate upon the first to occur of: (i) such time as the KKR Purchaser and its Affiliates, collectively, do not Own at least $200 million principal amount of the Investors hereby irrevocably withdraw Notes, (ii) the Nomination Letter.Company sells all or substantially all of its assets, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock,

Board of Directors Matters. (a) The Investors and On or before the Company hereby acknowledge and agree that: (i) Effective November 1Closing Date, 2010, (A) the Company shall expand take such action as is necessary to increase the size of its Board of Directors to seven directors and shall cause three designees of Investor, who shall be designated in writing to the Company within three business days prior to the Closing, to be elected to the three newly created vacancies on the Board of Directors, such elections to nine directorsbe effective as of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Common Holdings, the Company will support the nomination of, and the Company's nominating committee (B) Xxxxxxx X. Xxxxxx (the “Investor Director”or other board committee exercising a similar function) shall be appointed recommend to the Board of Directors, and the Board of Directors will use its good faith efforts to ensure, that the slate of nominees recommended by the Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to one less than the number of directors that would constitute a majority of such board following such election. In the event any designee of Investor hereunder shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby with a person designated by Investor. Any nominee or designee to the Board of Directors of Investor or the Company shall be reasonably satisfactory to the other party, and each party shall afford the other a reasonable opportunity to review and comment upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to the Board of Directors. During such time as Investor is entitled to have designees on the Board of Directors, the Investor shall also be entitled to have a designee serve on each committee of the Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in Class III connection with any transaction or potential transaction involving the Company and (C) Xxxxxx X. X’Xxxxxxx Investor, then such designee shall not be required to be appointed to serve such committee. As used above, "Initial Common Holdings" means the aggregate of the number of Shares and the number of Conversion Shares (as a director if issued on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this AgreementClosing Date). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteria. (b) Upon execution of this AgreementFollowing the date hereof and prior to the Closing, the Investors hereby irrevocably withdraw Company shall use its reasonable best efforts to cause the Nomination Lettercoverage limit under its current directors and officers insurance policy covering the directors and officers of the Company immediately following the Closing and all former directors and officers (the "D&O Policy") to be increased to at least $20 million, with terms that are substantially similar to those in the Company's existing policy, but excluding claims made under the existing policy prior to Closing.

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx Jxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx Jxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx Jxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteria. (b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx Xxxxx and two of the directors currently serving in Class II Xxxxx X. Xxxxxx (the “2010 Continuing Directors”), General Xxxx X. Xxxxxx and Xxxxxx X. Xxxx (the “Investor Directors”) and Xxxxxxx X. Xxxxxx III (collectively, the “2013 Nominees”) for election at the 2010 2013 Annual Meeting to serve in Class II and will recommend a vote for the 2010 2013 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 2013 Nominees at the 2010 2013 Annual Meeting. (iii) . The Company agrees that if it shall hold the 2013 Annual Meeting no later than July 31, 2013. If for any reason any of the Investor Directors or Xx. Xxxxxx shall die or withdraw as a nominee prior to election, a replacement nominee proposed by the Investors and reasonably acceptable to the Company shall be substituted consistent with the provisions of clause (ii) hereof. (ii) To the extent an Investor Director resigns for any reason other than pursuant to Section 4 5 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, in each case, during the Standstill Period, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the such Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed is qualified to serve as a director to be nominated) as a director by under the InvestorsDelaware General Corporation Law (the “DGCL”). The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate if approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the an “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a one or more replacement designeedesignees, subject to the above criteria. (b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter. Upon execution of this Agreement, the Company will promptly pay to the Investors their legal and advisory fees in connection with the Nomination Letter and this Agreement, invoices for which have been previously provided to the Company. For the avoidance of doubt, such legal and advisory fees shall not exceed $301,496.

Board of Directors Matters. (a) The Investors Investor and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the The Company shall expand include in the size slate of nominees recommended by the Board to nine directors, (B) Xxxxxxx X. Xxxxxx for election as directors at the 2017 Annual Meeting an individual designated by the Investor (the “Investor DirectorDesignee”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, is qualified to serve as a director under the laws of Delaware and (C) has not been previously nominated (or noticed as a director to be nominated) as a director is approved by the Investors. The Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”), consistent with subject to its fiduciary duties, within ten (10) business days after a completed customary director’s and officer’s questionnaire and background check has been received by the Nominating Committee, which approval shall not be unreasonably withheld. In the event the Nominating Committee shall decline to approve any particular individual designated by the Investor, the Investor shall have the right to propose one or more other individuals, subject to the above criteria. (ii) The Investor will ensure that the Investor Designee provides to the Company information required to be customarily disclosed with respect to directors, candidates for directors and their affiliates in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations and will provide such other information as reasonably requested by the Company from time to time with respect to the Investor and the Investor Designee. (iii) To the extent an Investor Designee resigns for any reason, is unable to serve or is otherwise deemed ineligible to serve as the Investor Designee for any reason, or otherwise ceases to be a member of the Board for any reason, prior to the expiration of 3917199-3 3917199-5 the initial term of the Investor Designee, the Investor shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Designee, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards and (B) is qualified to serve as a director under the laws of Delaware. The Nominating Committee shall consider such candidate within ten (10) business days after a completed customary director director’s and officer officer’s questionnaire and background check has been received by the Nominating Committee, and subject to the Nominating Committee’s approval, which approval shall not be unreasonably withheld and shall be subject to its fiduciary duties, the Board shall appoint to the Board such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement)days. In the event the Nominating Committee shall decline to recommend any particular candidate designated by the InvestorsInvestor, the Investors may Investor shall have the right to propose a one or more replacement designeedesignees, subject to the above criteria. (biv) Upon execution of Notwithstanding anything to the contrary in this Agreement, the Investors hereby irrevocably withdraw Investor agrees that it will not, directly or indirectly, seek to elect more than one (1) director to the Nomination LetterBoard at the 2017 Annual Meeting or otherwise prior to the date that is thirty (30) calendar days prior to the deadline established pursuant to the Company’s bylaws for the submission of stockholder nominations for the Company’s 2018 annual meeting of stockholders.

Board of Directors Matters. (a) The Investors and Provided the Company hereby acknowledge and agree that: (i) Effective November 1aggregate Purchase Price for the Purchased Shares purchased by the Lead Buyer hereunder is at least $25 million, 2010the Lead Buyer shall have the right to designate, (A) at Closing, one individual to be considered by the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Company’s Board will recommend of Directors, in accordance with the Nominating Committee’s charter and applicable rules and regulations of the SEC and the Principal Market, for nomination and election to the Company’s Board will nominate Xxxxxx X. X’Xxxxxxx and two of Directors promptly following the directors currently serving in Class II Closing (the “2010 NomineesBoard Designation Right”) for election at ). In the 2010 Annual Meeting to serve event such individual is no longer employed by or in Class II and will recommend a vote for business relationship or affiliation with the 2010 Nominees and solicit proxies from Lead Buyer or takes another position within the Lead Buyer’s organization which makes his or her continuing representation of the Lead Buyer on the Company’s stockholders for Board of Directors undesirable in the election view of the 2010 Nominees at Lead Buyer, or if an individual so designated by the 2010 Annual Meeting. (iii) The Company agrees that if the Investor Director resigns for any reason other than Lead Buyer pursuant to Section 4 or the Board Designation Right is otherwise unable not elected to serve as a director or is removed as a director the Company’s Board of Directors, then the Lead Buyer shall be permitted to designate another individual to be so nominated and elected. The individual designated by the stockholders of Lead Buyer for election to the Company, the Investors ’s Board of Directors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received considered by the Nominating Committee, in accordance with its charter and applicable rules and regulations of the SEC and the Principal Market, for nomination and re-election to the Company’s Board of Directors at the Company’s 2008 Annual Meeting of Shareholders and thereafter until otherwise decided by the Lead Buyer. If the Lead Buyer determines not to exercise the Board Designation Right, then for 30 days following the next occurring vacancy on the Board of Directors, the Lead Buyer shall appoint such candidate approved have the right to designate one individual to be considered by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject election to the above criteriaCompany’s Board of Directors on the terms described above. (b) Upon execution The Board Designation Right shall terminate, expire and be of no further force or effect on and after the first date on which the Lead Buyer and its affiliates shall cease to hold, in the aggregate, a majority of the Purchased Shares originally sold to and purchased by the Lead Buyer pursuant to this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.

Board of Directors Matters. (a) The Investors and Promptly after the Company hereby acknowledge and agree thatClosing: (i) Effective November 1, 2010, (A) the Company The Board Representatives shall expand the size of be nominated for election to the Board pursuant to nine directorsa shareholder vote or appointment, (B) Xxxxxxx X. Xxxxxx (as the “Investor Director”) shall be appointed case may be, for so long as Purchaser has a Qualifying Ownership Interest, subject to serve all legal and governance requirements and approvals regarding service and election or appointment as a director on of the Board in Class III Company generally (including any required approvals of the Federal Reserve), and to the approval of the Company's Nominating/Corporate Governance Committee (Cthe "Governance Committee") Xxxxxx X. X’Xxxxxxx shall (such approval not to be appointed to serve as a director on the Board in Class IIunreasonably withheld, delayed or conditioned). (ii) The Nominating and Corporate Governance Committee (Subject to Section 7(e)(i), upon the death, resignation, retirement, disqualification or removal from office as a duly constituted subcommittee thereof) (the “Nominating Committee”) member of the Board will recommend of Directors of any Board Representative, Purchaser shall have the right to nominate a replacement for nomination such Board Representative, which nominee replacement shall satisfy all legal and the Board will nominate Xxxxxx X. X’Xxxxxxx and two governance requirements regarding service as a director of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting Company and shall be reasonably acceptable to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting. (iii) The Company hereby agrees that, from and after the Closing Date, for so long as Purchaser has a Qualifying Ownership Interest and does not have a Board Representative currently serving on the Board, the Company shall, subject to applicable law, invite a person designated by Purchaser (the "Board Observer") to attend meetings of the Board (including any meetings of the Governance Committee) in a nonvoting observer capacity. The Board Observer shall not have any right to vote on any matter presented to the Board or any committee thereof. The Company shall give the Board Observer written notice of each meeting of the Board at the same time and in the same manner as the members of the Board, shall provide the Board Observer with all written materials and other information given to members of the Board at the same time such materials and information are given to such members, and shall permit the Board Observer to attend as an observer at all meetings thereof, and in the event the Company proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to the Board Observer prior to the effective date of such consent describing the nature and substance of such action and including the proposed text of such written consents; provided, however, that: (1) the Board Observer may be excluded, from executive sessions comprised solely of independent directors, by the Chairman of the Board (or, if applicable, the lead or presiding independent director) if, in the written advice of counsel, such exclusion is necessary in order for the Company to comply with applicable law, regulation or stock exchange listing standards (it being understood that it is not expected that the Board Observer would be excluded from routine executive sessions); (2) the Company and the Board shall have the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if doing so is, in the Investor Director resigns for any reason other than written advice of counsel, (x) necessary to protect the attorney-client privilege between such party and counsel, or (y) necessary to avoid a violation of fiduciary requirements under applicable law; and (3) the Purchaser shall cause the Board Observer to agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to the Board Observer. The Purchaser covenants and agrees to hold all (iv) such information obtained from the Board Observer as provided in the prior sentence in confidence pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by 7(d) above. (v) The chairman of the stockholders Board shall (x) not be an executive officer of the Company, the Investors and (y) shall be entitled to designate, for consideration appointed by the Nominating Governance Committee following an annual meeting of shareholders that is to occur within the ninety (90) days following the effectiveness of the Plan. (vi) The Company shall enter into a director indemnification agreement, in a form mutually agreed to between the Company and the Purchaser, with each Board Representative. (vii) For as long as a replacement for Board Representative is a member of the Investor DirectorBoard, an individual who the Company shall procure and maintain a director and officer insurance policy that is reasonably acceptable to the Purchaser covering each Board Representative. (Aviii) qualifies as “independent” under Notwithstanding anything in this Section 7(e) to the Nasdaq corporate governance standardscontrary, if the Purchaser no longer has a Qualifying Ownership Interest, (Bx) has relevant business and financial experiencethe Purchaser will have no further rights under this Section 7(e) and, at the written request of the Board, shall use all commercially reasonable efforts to cause any Board Representatives to resign from the Board as promptly as possible thereafter, and (Cy) has not been previously nominated (or noticed as a director to be nominated) as a director by the InvestorsCompany will no longer have any obligations under this Section 7(e). The Nominating Committee, consistent with its fiduciary duties, Purchaser shall consider such candidate within ten (10) business days after promptly inform the Company if and when it ceases to hold a completed customary director and officer questionnaire has been received by Qualifying Ownership Interest in the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteriaCompany. (b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.

Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that: (i) Effective November 1, 2010, (A) the Company shall expand the size Subject to satisfactory completion of the Board Company’s customary background check (which shall be completed no later than December 26, 2012), effective on a date to nine directorsbe mutually agreed between the Parties before January 31, 2013 (Bor such later date as may be mutually agreed in writing by the Parties) Xxxxxxx X. Xxxxxx (the “Appointment Date”), the Investor Director”) , or such other replacement as may be designated by the Investors as provided herein, shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director Board. If requested, the Investor Director will consider service on the Board in Class IICompensation Committee of the Board. (ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) of the Board (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) Investor Director for election at the 2010 2013 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees Investor Director at the 2010 2013 Annual Meeting, and otherwise support the Investor Director for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees. (iii) The As a condition to the Investor Director’s appointment to the Board and election as a director of the Company agrees that if at the Company’s 2013 Annual Meeting, the Investors, including the Investor Director, agree to provide to the Company information required to be or customarily disclosed for directors, candidates for directors and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and such other information as reasonably requested by the Company from time to time with respect to the Investors and the Investor Director, in form and substance substantially similar to the questionnaire provided at Exhibit B. (iv) To the extent an Investor Director resigns for any reason (other than pursuant to Section 4 6 hereof), is unable to serve, or is otherwise unable deemed ineligible to serve as a director or is removed as a director by the stockholders of Investor Director prior to the CompanyAppointment Date, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as an “independentIndependent Director” under the Nasdaq corporate governance standardsrules of the New York Stock Exchange, (B) has relevant business and financial experiencesatisfies the Director Qualification Standards included in the Company’s Corporate Governance Guidelines, and (C) has not been previously nominated (or noticed is qualified to serve as a director to be nominated) as a director by under the InvestorsDelaware General Corporation Law (the “DGCL”). The Nominating Committee, in good faith and consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director director’s and officer officer’s questionnaire and background check has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii1(a)(iv) shall be referred to as the “Investor Director” for the purposes of this AgreementAgreement and shall execute and deliver a joinder to this Agreement in such capacity). In the event the Nominating Committee shall decline to recommend any particular candidate designated by the Investors, the Investors may propose a one or more replacement designeedesignees, subject to the above criteria. (bv) Upon execution The Investor Director agrees to act as the Investor Director on the terms and conditions of this AgreementAgreement and to serve as a director on the Board and further consents to be named as a nominee in the Company’s proxy statement for the 2013 Annual Meeting. The Investor Director acknowledges that he has received and reviewed the policies and guidelines of the Board and the Company generally applicable to directors (including, without limitation, regarding confidentiality, conflicts of interest, trading and disclosure and other governance matters), copies of which have been previously provided to the Investors hereby irrevocably withdraw the Nomination LetterInvestor Director.